PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW KYRGYZSTAN: ARTICLE 1 (8) OF THE DRAFT LAW ON ENSURING THE RIGHT TO EQUALITY AND PROTECTION AGAINST DISCRIMINATION PART TWO – I Victimization is a form of discrimination, expressed in the form of adverse consequences, adverse treatment of a person or a group of persons who have reported or intend to voluntarily report discrimination; witnessed discrimination; did not obey instructions to apply discrimination or otherwise participated in proceedings in cases of discrimination; or informed the public about discrimination. To varying extents, human rights treaty bodies have recognized the obligation to address victimization, usually, as part of the broader requirement to ensure access to justice. In this connection, the Committee on the Elimination of Discrimination against Women has affirmed States’ obligations to protect women “from threats, harassment and other forms of harm before, during and after legal proceedings”.351 Similarly, in its concluding observations, the Human Rights Committee has urged States to “facilitate complaints from women victims of discrimination at work and take appropriate measures to protect them from reprisals”.352 The Committee on the Elimination of Racial Discrimination has also expressed concern about victims of racial discrimination being discouraged from bringing complaints due to “fear of reprisals”, recommending that States take “all steps necessary” to ensure access to justice, including through the adoption of anti-discrimination law.353 More broadly, the Committee on Economic, Social and Cultural Rights has noted the obligation of States to take measures to protect all individuals – including human rights defenders and labour activists, and their legal representatives – from acts of “intimidation” or “reprisals” for bringing cases concerning violations of economic, social and cultural rights.354 The Committee on the Rights of Persons with Disabilities has gone the furthest in articulating the prohibition of victimization,355 largely mirroring the wording of the European Union equal treatment directives, which define victimization as “adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment”.356 The obligation to ensure protection from victimization is also made clear on the face of the recent ILO Violence and Harassment Convention, 2019 (No. 190), which requires States to prevent “retaliation against complainants, victims, witnesses and whistle-blowers”.357 3. Material scope of the right to non-discrimination SUMMARY • Anti-discrimination legislation should guarantee the equal enjoyment of all rights protected under international and national law, without discrimination. • The prohibition of discrimination applies in all areas of life regulated by law. The duty to refrain from discrimination applies to all persons, including (but not limited to) public authorities and private entities. 351 Committee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015), para. 18 (g). 352 CCPR/C/MUS/CO/5, para. 12. 353 CERD/C/KGZ/CO/8-10, para. 14. 354 Applying this reasoning in a discrimination context, the Committee has urged States to ensure the protection of victims of sexual harassment, including through the “explicit prohibition of reprisals” in national workplace harassment policies. See, respectively, E/C.12/VNM/CO/2-4, para. 9; E/C.12/CHN/CO/2, para. 38; and general comment No. 23 (2016), para. 48. 355 Albeit, without using the term “victimization” explicitly. See Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 73 (i). 356 The Committee on the Rights of Persons with Disabilities uses the shorter phrase “ensuring compliance with equality provisions”. See Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 73 (i). See also Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art. 9; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 11; Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, art. 10; and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), art. 24. 357 Art. 10 (b) (iv). 47