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    DISCRIMINATION DEFINED UNDER

    EUROPEAN AND BOSNIA AND

    HERZEGOVINA LAW

    Legal Memorandum

    March 2013

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    DISCRIMINATION DEFINED UNDER EUROPEAN AND

    BOSNIA AND HERZEGOVINA LAW

    Executive Summary

    The purpose of this memorandum is to analyze discrimination legislation

    and case law in Europe and Bosnia and Herzegovina (BiH) to determine

    permissible and impermissible instances of discrimination in BiH.

    BiH has three primary sources for domestic and international anti-

    discrimination commitments: (1) the European Convention on Human Rights

    (ECHR); (2) BiHs Law on Prohibition of Discrimination; and (3) the

    discrimination jurisprudence of the European Court of Human Rights (ECtHR),

    including the Courts influential holding in Sejdic and Finci v. Bosnia and

    Herzegovina.

    The ECHR prohibits discrimination in Article 14 and Article 1 of Protocol

    12. Article 14 prohibits discrimination with regard to the specific rights set forth in

    the ECHR. Article 1 of Protocol 12 expands on the guarantees of Article 14, by

    prohibiting discrimination with regard to any right set forth under any law. BiH is

    a party to both the ECHR and Protocol 12 to the ECHR.

    BiHs Law on Prohibition of Discrimination, which establishes the domestic

    legal standards underlying anti-discrimination, provides that differential treatment

    on the basis of ethnicity is discriminatory unless the government can provide a

    justifiable reason and legitimate means for the differential treatment. However, the

    law also provides a list of specific situations where differential treatment does not

    constitute discrimination and a reasonable and objective justification is presumed,

    such as positive discrimination (compensating victims of past discrimination),

    differential treatment in certain professional activities where a persons features

    (including religious beliefs) affect how he can perform his duties, differential

    treatment with regard to citizenship as prescribed by law, and differential treatment

    with regard to marital status (to protect children).

    The BiH Law on Prohibition of Discrimination is in part based on the

    discrimination jurisprudence of the ECtHR. The ECtHR has developed a two-part

    test, which is similarly followed by the BiH Constitutional Court. Under this test,

    differential treatment of individuals or groups who are in analogous or relatively

    similar situations constitutes discrimination if there is no reasonable and objective

    justification for that treatment. A reasonable and objective justification occurs

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    where there is a legitimate aim and a reasonable relationship of proportionality

    between that aim and the means employed to achieve it. Because differential

    treatment is rarely difficult to prove, both courts tend to focus their analysis on the

    reasonable and objective justification prong of the two-part test. Specific types of

    discrimination, such as positive discrimination and indirect discrimination, are

    often analyzed under this prong.

    The ECtHR has held that ethnic discrimination is a particularly invidious

    type of discrimination. In these cases, states are given less deference with regard

    to the aim pursued, and the Court requires a narrower fit between the aim pursued

    and the means used to pursue that aim. The ECtHR held in Sejdic and Finci v.

    Bosnia and Herzegovinathat BiHs exclusion of ethnic minorities from election to

    the Presidency and the House of Peoples constitutes ethnic discrimination, because

    ethnic tensions in BiH no longer constitute a justification for continued

    discrimination against minorities, and policies favoring one group over another inthis way may in fact exacerbate ethnic tensions and cause more harm than good

    within the state. Conversely, the BiH Constitutional Court has held that BiH still

    has reasonable and objective justifications for differential treatment of ethnic

    minorities (and ethnic groups that constitute a minority within a given entity, such

    as Bosniaks or Croats living in the Republika Srpska), including the preservation

    of peace in BiH.

    Though some forms of differential treatment, such as positive action, may be

    permissible under both BiH and European law, direct or indirect differential

    treatment, in the absence of a reasonable and objective justification, is not

    permissible. While the standards applied by the BiH Constitutional Court in cases

    of discrimination are similar to those set by the ECtHR, they differ in opinion with

    regard to whether BiH currently has a reasonable and objective justification for

    differential treatment of ethnic groups in BiH.

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    T BLE OFCONTENTSStatement of Purpose 1

    Introduction 1

    Anti-Discrimination Laws 1

    European Convention on Human Rights 2

    Article 14 2

    Article 1 of Protocol No. 12 2

    BiH Constitution and Law on Prohibition of Discrimination 3

    Two-Part Test for Discrimination 5

    Differential Treatment 6

    Reasonable and Objective Justification 7European Court of Human Rights 8

    BiH Constitutional Court 11

    Direct v. Indirect Discrimination 13

    Discrimination on Ethnic Grounds 14

    European Court of Human Rights 14

    BiH Constitutional Court 17

    Conclusion 18

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    Discrimination, March 2013

    1

    DISCRIMINATION DEFINED UNDER EUROPEAN AND

    BOSNIA AND HERZEGOVINA LAW

    Statement of Purpose

    The purpose of this memorandum is to analyze discrimination legislation

    and case law in Europe and Bosnia and Herzegovina (BiH) to determine

    permissible and impermissible instances of discrimination in BiH.

    Introduction

    Under both BiH and European law, discrimination means treating similarly-

    situated groups differently without a reasonable and objective justification.

    Despite this similar understanding of discrimination, the European Court of Human

    Rights (ECtHR) and the BiH Constitutional Court have reached differentconclusions with regard to differential treatment of ethnic groups in BiH. Though

    the BiH Constitutional Court held inAppeal of Stranka za Bosnu i Hercegovinu

    and Mr. Ilijaz Pilav that BiH has a reasonable and objective justification for

    differential treatment of ethnic groups, the ECtHR held in Sejdic and Finci v.

    Bosnia and Herzevogina that it does not. As a party to the ECHR, BiH has a legal

    obligation to implement the Sejdic and Fincidecision by amending the BiH

    Constitution and Election Law to eradicate ethnic discrimination. To date, BiH has

    not implemented the decision. Meanwhile, the Council of Europe and European

    Union continue to pressure BiH to implement the decision, and commentators note

    that such laws and policies that continue to divide ethnic groups are causing more

    harm than good within BiH.1

    Anti-Discrimination Laws

    As a party to the ECHR and its Protocols, BiH must follow anti-

    discrimination principles set forth in the ECHR. Additionally, BiH is bound by its

    own anti-discrimination principles, as set forth in the BiH Constitution and the

    Law on Prohibition of Discrimination.

    1Second Class Citizens: Discrimination Against Roma, Jews and Other National Minorities in Bosnia and

    Herzegovina,HUMAN RIGHTS WATCH, 2, 3 (4 Apr. 2012), available athttp://www.hrw.org/node/106194/section/3.

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    European Convention on Human Rights

    The European Convention on Human Rights contains two provisions that

    prohibit discrimination.2 Article 14 prohibits discrimination with regard to the

    rights set forth in the ECHR itself.3 Article 1 of Protocol No. 12, which BiH

    ratified in 2003,4contains a more general prohibition on discrimination that applies

    to any right guaranteed under any law.5

    Article 14

    Article 14 of the ECHR articulates that, the enjoyment of the rights and

    freedomsset forth in this Conventionshall be secured without discrimination on

    any ground such as sex, race, colour, language, religion, political or other opinion,

    national or social origin, association with a national minority, property, birth or

    other status.6 Based on these guidelines, state parties may not discriminateagainst individuals based on their ethnic origins with respect to the rights provided

    in the ECHR.

    Article 1 of Protocol No. 12

    Article 1 of Protocol No. 12 of the ECHR provides a general prohibition

    against discrimination. Paragraph 1 explains that, the enjoyment of any right set

    forth by lawshall be secured without discrimination on any ground such as sex,

    race, colour, language, religion, political or other opinion, national or social origin,

    association with a national minority, property, birth or other status.7 This

    provision precludes state parties from discriminating against individuals based on

    their ethnic origins, regardless of how they self-identify, with respect to rights

    guaranteed under both European and domestic law. Paragraph 2 of the Article

    2European Convention on Human Rightsart. 14 (1995), available at

    http://conventions.coe.int/treaty/en/treaties/html/005.htm; Protocol No. 12 to the European Convention on Human

    Rightsart. 1 (2000), available athttp://conventions.coe.int/treaty/en/treaties/html/177.htm.3European Convention on Human Rightsart. 14 (1995), available at

    http://conventions.coe.int/treaty/en/treaties/html/005.htm.4Council of Europe,Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental

    Freedoms, Status as of 16/8/2012 (last accessed Aug. 15, 2012), available at

    http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=8&CL=ENG.5Protocol No. 12 to the European Convention on Human Rightsart. 1 (2000), available athttp://conventions.coe.int/treaty/en/treaties/html/177.htm.6European Convention on Human Rightsart. 14 (1995), available at

    http://conventions.coe.int/treaty/en/treaties/html/005.htm.7Protocol No. 12 to the European Convention on Human Rightsart. 1 (2000), available at

    http://conventions.coe.int/treaty/en/treaties/html/177.htm.

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    specifies that public authorities may not discriminate against individuals based on

    the grounds listed in paragraph 1.8

    BiH Constitution and Law on Prohibition of Discrimination

    BiH anti-discrimination law is contained in both the Constitution and the

    Law on Prohibition of Discrimination. Article 2 of the Constitution provides that

    the fundamental rights and freedoms listed in both the Constitution and the

    international agreements to which BiH is a party are secured without

    discrimination on any ground. The Law on Prohibition of Discrimination provides

    the definition of discrimination, in addition to the forms of and exceptions to

    discrimination. The BiH Constitutional Court has likewise provided standards for

    what constitutes discrimination under European, and by extension, BiH law.

    Passed in July 2009, BiHs Law on Prohibition of Discriminationimplements the prohibition of discrimination contained in Article 2 of the BiH

    Constitution.9 The Law delineates the responsibilities and obligations of all

    competent government authorities to ensure protection, promotion and creation of

    conditions for equal treatment of all citizens of BiH.10

    Article 2 defines

    discrimination, Article 3 defines the forms (direct and indirect) of discrimination,

    and Article 5 establishes exceptions to the prohibition on discrimination.

    Article 2 of the Law defines discrimination as differential treatment,

    including exclusion, limitation, or preference, based on ethnic affiliation, national

    or social origin, or connection to a national minority.11

    The government of BiH

    may not discriminate against a citizen of the state by limiting his or her enjoyment

    of the rights and freedoms of public life.12

    Moreover, the prohibition on

    discrimination extends to both public bodies and the private sector, particularly

    with regard to the provision of social services, membership in professional

    organizations, and employment.13

    8Protocol No. 12 to the European Convention on Human Rightsart. 1 (2000), available at

    http://conventions.coe.int/treaty/en/treaties/html/177.htm.9

    BOSNIA AND HERZEGOVINA CONST. art. 2 (1995). See also, Law on Prohibition of Discriminationart. 1 (Bosniaand Herzegovina, 2009), available athttp://www.unhcr.org/refworld/docid/4d302a9f2.html.10Law on Prohibition of Discriminationart. 1 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.11Law on Prohibition of Discriminationart. 2 (Bosnia and Herzegovina, 2009), available athttp://www.unhcr.org/refworld/docid/4d302a9f2.html.12Law on Prohibition of Discriminationart. 2 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.13Law on Prohibition of Discriminationart. 2 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.

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    Article 3 establishes the specific types of discrimination prohibited in BiHs

    governmental policies. Direct discrimination occurs when a person or group of

    persons is put, or could be put, into a less favourable position as compared to

    similarly situated individuals.14

    Any government official who excludes a group of

    persons based on their ethnicity, national origin, or connection to a national

    minority violates this provision. Similarly, if an official is aware of governmental

    discrimination and fails to protect those suffering it, he/she is guilty of direct

    discrimination.15

    Indirect discrimination occurs when an apparently neutral provision,

    criteria, or practice has or would have the effect of putting a person or group of

    persons in an unfavourable or less favourable position.16

    A law is indirectly

    discriminatory if it negatively affects a certain segment of the population, even

    though it seems to be neutral on its face. For instance, a policy prohibitingemployees from wearing any headgear could have a discriminatory effect on

    persons who belong to certain religions, such as Muslim women and Jewish men.

    The policy, therefore, raises the presumption of indirect discrimination on

    grounds of religion.17

    Article 5 of the Law provides exceptions to the principle of equal treatment.

    Under this provision, legal measures and actions that are based on a reasonable and

    objective justification are not considered discriminatory.18

    Examples of statutory

    reasonable and objective justifications under BiH law are positive discrimination

    (compensating victims of past discrimination), differential treatment in certain

    professional activities where a persons features (including religious beliefs) affect

    how he can perform his duties, differential treatment based on citizenship in a

    way prescribed by the Law, and differential treatment with regard to marital status

    (to protect children).19

    These, along with additional instances of permissible

    discrimination identified through case law, will be discussed in more detail below.

    14Law on Prohibition of Discriminationart. 3 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.15

    Law on Prohibition of Discriminationart. 3 (Bosnia and Herzegovina, 2009), available athttp://www.unhcr.org/refworld/docid/4d302a9f2.html.16Law on Prohibition of Discriminationart. 3 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.17European Network of Legal Experts in the Non-Discrimination Field, Limits and potential of the concept ofindirect discrimination, 30 (2008), available athttp://www.non-discrimination.net/content/media/limpot08_en.pdf.18Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.19Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.

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    Two-Part Test for Discrimination

    Under the ECHR and its Protocols, discrimination is prohibited with regard

    to any right provided in any law by any contracting state.20

    The ECtHR, upon

    whose analysis the BiH Constitutional Court often bases its analysis, holds that

    discrimination occurs where differential treatment of similarly-situated groups has

    no reasonable or objective justification. A reasonable and objective justification

    means that the discrimination is necessary to pursue a legitimate aim, using means

    that are proportionate to that aim.21

    The ECtHR has also held that heightened

    scrutiny should be given to differential treatment based on ethnic classifications,

    especially where a group has historically been disadvantaged based on ethnicity.22

    Courts in BiH have considered discrimination under both BiH law and the

    ECHR. Prior to the passage of the 2009 Law on Prohibition of Discrimination,BiH courts applied the ECHR, which was incorporated into BiH law through the

    Constitution. As a result, BiH has substantially more case law on discrimination

    under the ECHR. However, because the Law on Prohibition of Discrimination was

    adopted in compliance with international standards and mirrors language used by

    the ECtHR in its discrimination analysis, BiH courts are likely to analyze

    discrimination under the BiH Law using similar standards.23

    Like the ECtHR, the BiH Constitutional Court applies a two-part test to

    determine whether discrimination has occurred: first, it will examine whether

    groups in analogous situations have received differential treatment and, if they

    have, it will examine whether there is a reasonable and objective justification for

    that treatment.24

    While the standards applied by the BiH Constitutional Court in cases of

    discrimination mirror those set by the ECtHR, as it will be shown, the outcomes

    20Protocol No. 12 to the European Convention on Human Rights art. 1 (2000), available at

    http://conventions.coe.int/treaty/en/treaties/html/005.htm.21

    Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 42 (2009), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.22Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 32 (2009) (citing D.H. and

    Others v. Czech Republic, European Court of Human Rights, para. 176 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256).23Law on Prohibition of Discriminationart. 1 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.24Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 20 (2010), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.

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    are not always the same. For instance, the Constitutional Court reached a different

    outcome inAppeal of Stranka za Bosnu i Hercegovinu and Mr. Ilijaz Pilav than the

    ECtHR reached in the similar Sejdic and Finci case. The difference in outcomes

    between the two Courts is due to differences in the reasonable and objective

    justification prong of the discrimination test.

    Differential Treatment

    The ECtHR first provided its test for discrimination in the Case Relating to

    Certain Aspects of the Laws on the Use of Languages in Education in Belgium

    (Belgian Linguistics Case).25

    In this case, the ECtHR held that not all differences

    in treatment constitute discrimination; only those that treat people differently

    without a reasonable and objective justification.26

    The Court held that French-

    speaking students in communes on the outskirts of Brussels received differential

    treatment because they were unable to access French-speaking schools basedsolely on the residence of their parents, whereas Dutch-speaking students could

    access any schools they wished, regardless of parental residence.27

    The Court

    noted that though there are many legal or administrative provisions which do not

    secure to everyone complete equality of treatment, only those distinctions which

    are arbitrary (such as the distinction in this case), and thus not objectively and

    reasonably justified, will result in a finding of discrimination.28

    The BiH Constitutional Court also considers differential treatment of

    similarly-situated groups to be the first consideration in a two-part test determiningwhether discrimination has occurred.29

    While the BiH Constitutional Court has

    interpreted differential treatment in several cases, it has not clearly indicated

    whether the differential treatment must result in unfavorable consequences for one

    group.

    25Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , European Court

    of Human Rights, 1, 11 (1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525.26Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , European Court

    of Human Rights, 1, 31 (1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525;see

    also Elizabeth Raulston, (Un)Justifiable?: A Comparison of Electoral Discrimination Jurisprudence at theEuropean Court of Human Rights and the Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN

    UNIVERSITY INTERNATIONAL LAW REVIEW669 (2013).27Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , European Court

    of Human Rights, 1, 11(1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525.28Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium , European Court

    of Human Rights, 1, 31 (1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525.29Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 20 (2010), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.

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    In Case No. U-12/09, the Court found that there was differential treatment

    where a law regarding maternity leave for women working in state institutions,

    which was neutral on its face, impacted women in the Federation of Bosnia and

    Herzegovina (FBiH) and the Republika Srpska (RS) differently. Because of entity

    policies in place, women in FBiH received less compensation during maternity

    leave.30

    The Court held that the different impacts of the law on women in the

    FBiH and the RS constituted differential treatment, which amounted to

    discrimination because the means employed (reliance on local regulations) were

    not proportionate to the aim sought under the law (providing social protection and

    compensation for women on maternity leave).31

    In reaching this conclusion, the Court considered that in states with similar

    federal structures (such as Germany and Switzerland), maternity leave is equal for

    all women, regardless of where they live.32

    Though the applicants33

    in this case

    brought claims under both the ECHR and the Law on Prohibition ofDiscrimination, the Court only engaged in analysis with regard to the former. The

    Court did note, however, that the Law on Prohibition of Discrimination obliges all

    competent authorities in the State and in the Entities to harmonise all regulations in

    order to establish non discriminatory conditions of political, economic and social

    life in Bosnia and Herzegovina.34

    Reasonable and Objective Justification

    According to the ECtHR and the BiH Constitutional Court, differential

    treatment is only permissible pursuant to a reasonable and objective justification.35

    In cases at both courts, it is far more difficult to determine whether the state has a

    reasonable and objective justification than whether differential treatment has

    30Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 21 (2010), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.31Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 24 (2010), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.32

    Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 24 (2010), available athttp://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.33The applicants in this case were 23 members of the House of Representatives of the Parliamentary

    Assembly of Bosnia and Herzegovina and 5 delegates to the House of Peoples of the

    Parliamentary Assembly of Bosnia and Herzegovina.34Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma

    naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 24 (2010), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.35Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 32 (2009), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.

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    occurred. Because the determination of reasonable and objective justification

    requires a balancing test, the court must first look to whether the state has a

    legitimate aim, and then must balance that aim with the means used to pursue it.

    European Court of Human Rights

    Though the ECHR does not explicitly mention exceptions to the rule of

    differential treatment in the same way the BiH Law does, the ECtHR has held that

    there is an exception to the prohibition on differential treatment where a state can

    provide a reasonable and objective justification, defined as a legitimate aim and

    a reasonable relationship of proportionality between the means employed and the

    aim sought to be realized.36

    The ECtHR has likewise held that positive

    discrimination is permissible to correct inequality through past differential

    treatment.37

    Therefore, under the ECHR, state parties may onlylegally

    discriminate against their citizens when they seek to attain a reasonable and

    objective justification and the means used to achieve that goal are proportionate toits ends.

    38

    InBurden v. the United Kingdom, differential treatment was found to have a

    legitimate aim where two unmarried sisters, who lived together in a mutually

    supportive relationship, jointly owned several tracts of land, in addition to

    investments and property each held independently.39

    Each had a will leaving her

    estate to the other, but claimed that, if one died, the other would face significant

    inheritance taxes that would not have been present if they were married or in a civil

    union.

    40

    The ECtHR reasoned that, in order for a taxation system to be workable,there must be broad categories to distinguish between different groups of

    taxpayers.41

    Because the inheritance tax exemption for marital and civil

    partnership relationships has the legitimate purpose of promoting stable,

    committed relationships through financial security for the surviving spouse, the

    36Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 32 (2009), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.37

    Kuric and Others v. Slovenia, European Court of Human Rights, para. 388 (2012), Thlimmenos v. Greece,European Court of Human Rights, para. 44 (2000).38Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.39Burden v. the United Kingdom, European Court of Human Rights, para. 10-12 (2008), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-86146.40Burden v. the United Kingdom, European Court of Human Rights, para. 3 (2008), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-86146.41Burden v. the United Kingdom, European Court of Human Rights, para. 47 (2008), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-86146.

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    ECtHR deemed the differential treatment reasonable and justifiable, even though

    certain relationships would face greater hardships as a result.42

    The ECtHR in Clift v. the United Kingdom, on the other hand, held that

    differential treatment did not have a legitimate purpose where prisoners serving

    less than 15 years were given preference in seeking early release over prisoners

    serving more than 15 years.43

    The ECtHR held that differential treatment is

    justified where a given prisoner poses a risk to others, but, because the process of

    determining whether a prisoner should be granted early release was based on

    his/her sentence (greater or less than 15 years), rather than his/her risk to society,

    the Government failed to establish that the differential treatment served the

    proffered aim of public safety.44

    Because the Government lacked a reasonable and

    objective justification, the ECtHR held that it had violated Article 14 of the ECHR

    and that the differential treatment was impermissible.45

    ECtHR discrimination case law also allows for positive discrimination,

    including affirmative action, as a reasonable and objective justification. Positive

    discrimination refers to measures that seek to remedy disadvantage, and can be

    divided into five broad categories: the removal of discriminatory practices against

    those historically disadvantaged; facially neutral policies that assist disadvantaged

    groups; programs designed to attract candidates from under-represented groups,

    such as quota systems; and the redefinition of merit to make certain traits a

    qualification for a position.46

    The primary aim of these exceptions is to eliminate

    discrimination, not to favor previously disadvantaged groups.

    47

    The jurisprudence of the ECtHR dictates that all forms of differential

    treatment, including positive action, must be reasonable and objective, and be

    proportionate to a legitimate goal.48

    The ECtHRs case law deals with positive

    discrimination, sometimes even imposing an obligation on states to ensure positive

    42Burden v. the United Kingdom, European Court of Human Rights, para. 16, 47 (2008), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-86146.43Clift v. the United Kingdom, European Court of Human Rights, para. 8, 62 (2010), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99913.44

    Clift v. the United Kingdom, European Court of Human Rights, para. 73-74 (2010), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99913.45Clift v. the United Kingdom, European Court of Human Rights, para. 78-79 (2010), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99913.46Non-Discrimination in International Law: A Handbook for Practitioners, INTERIGHTS, 84 (2011), available athttp://www.interights.org/handbook/index.html.47Non-Discrimination in International Law: A Handbook for Practitioners, INTERIGHTS, 84 (2011), available at

    http://www.interights.org/handbook/index.html.48Non-Discrimination in International Law: A Handbook for Practitioners, INTERIGHTS, 85 (2011), available at

    http://www.interights.org/handbook/index.html.

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    action for certain communities though such a positive obligation does not apply

    in all cases. In Thlimmenos v. Greece, a Jehovahs Witness was convicted of

    insubordination for refusing to wear a military uniform during general

    mobilization, and, after serving his sentence, was not appointed to a chartered

    accountant position for having been convicted of a felony.49

    The ECtHR held that

    states must treat differently persons whose situations are significantly different.50

    Moreover, the Court held that failure to provide different treatment for different

    groups, without a reasonable and objective justification, can itself constitute

    discrimination.51

    Because the applicants conviction was the result of religious

    beliefs, the state had a positive obligation to treat him differently from other

    convicted criminals.52

    The Court concluded that there had been a violation of

    Article 14 of the ECHR taken in conjunction with Article 9, which guarantees the

    right to freedom of religion.53

    The holding in this case seemingly imposes a

    positive obligation to act when faced with differences between groups.54

    Similarly, in Connors v. the United Kingdom, where a Gypsy family was

    evicted after living on the same site for fourteen years, the ECtHR found that the

    vulnerable position of Gypsies as a minority meant that some special consideration

    had to be given to their needs and their different lifestyle both in the relevant

    regulatory framework and in reaching decisions in particular cases.55

    In this case,

    the Court held that the state violated Article 8 (the right to respect for private and

    family life, home, and correspondence) by forcibly removing the Gypsy family

    means which were not proportionate to the proffered aims of easing administrative

    burdens and maintaining flexibility in housing policies.56

    Finding a violation of

    Article 8, the Court found it unnecessary to find a violation of Article 14 (freedom

    from discrimination with regard to the rights set forth in the ECHR) based on the

    49Thlimmenos v. Greece, European Court of Human Rights, para. 7-8 (2000), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58561.50Thlimmenos v. Greece, European Court of Human Rights, para. 44 (2000), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58561.51Thlimmenos v. Greece, European Court of Human Rights, para. 38 (2000), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58561.52Thlimmenos v. Greece, European Court of Human Rights, para. 47 (2000), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58561.53

    Thlimmenos v. Greece, European Court of Human Rights, para. 49 (2000), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58561.54Jean-Franois Akandji-Kombe, Positive Obligations under the European Convention on Human Rights: A guide

    to the Implementation of the European Convention on Human Rights, 7 Human Rights Handbooks 1, 59 (2007),

    available at http://echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-5F26D46A4F55/0/DG2ENHRHAND072007.pdf.55Connors v. the United Kingdom, European Court of Human Rights, para. 9, 84 (2004), available at

    www.errc.org/cms/upload/media/00/B5/m000000B5.doc.56Connors v. the United Kingdom, European Court of Human Rights, para. 93-95 (2004), available at

    www.errc.org/cms/upload/media/00/B5/m000000B5.doc.

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    same set of facts, although it strongly hinted that the states actions had indeed

    been discriminatory.57

    In D.H. and Others v. Czech Republic, the ECtHR likewise

    held that groups that have suffered disadvantages in the past, such as Roma, are

    more vulnerable to discrimination and therefore require special protection by

    authorities.58

    In other words, authorities have a positive obligation to recognize

    the special needs of minorities and help to protect their security, identity, lifestyle,

    and contribution to cultural diversity.59

    In Chapman v. the United Kingdom, however, the ECtHR declined to apply

    this same reasoning where authorities denied a Gypsy family permission to place a

    caravan on land that it already owned.60

    The ECtHR ruled that Article 14 did not

    apply and the authorities were not required to accord specific favorable treatment

    solely because the family was a gypsy minority.61

    The ECtHR held that, though

    authorities failure to give special treatment to minorities that have historically

    been discriminated against without a reasonable and objective justificationconstitutes discrimination, in this case, the governments proffered aim of

    preserving the environment justified their intervention in the applicants rights.62

    It is therefore clear that positive action is a permissible instance of

    differential treatment under the ECHR. Moreover, where authorities fail to give

    special protection to historically disadvantaged groups, that failure constitutes

    continued discrimination unless the authorities can show a reasonable and

    objective justification for their failure to act.

    BiH Constitutional Court

    Like the ECtHR, the BiH Constitutional Court has held that differential

    treatment must be supported by a reasonable and objective justification; it

    otherwise constitutes discrimination. For instance, inAppeal of Stranka za Bosnu i

    Hercegovinu and Mr. Ilijaz Pilav(described in more detail below), the Court held

    that differential treatment of Bosniaks living in the RS as opposed to Serbs living

    57Connors v. the United Kingdom, European Court of Human Rights, para. 97 (2004), available at

    www.errc.org/cms/upload/media/00/B5/m000000B5.doc.58

    D.H. and Others v. Czech Republic, European Court of Human Rights, para. 182 (2007), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256.59D.H. and Others v. Czech Republic, European Court of Human Rights, para. 181 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256.60Chapman v. the United Kingdom, European Court of Human Rights, para. 15 (2001), available athttp://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59154.61Chapman v. the United Kingdom, European Court of Human Rights, para. 129-130 (2001), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-59154.62Chapman v. the United Kingdom, European Court of Human Rights, para. 129 (2001), available at

    www.minorityrights.org/download.php?id=187.

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    in the RS was reasonably and objectively justified on several bases, such as the

    need to preserve peace in BiH.63

    In addition to the reasonable and objective

    justifications found by BiH courts, there are a number of specific situations under

    BiH law in which differential treatment of similarly-situated groups is legally

    permissible.

    As previously mentioned, Bosnias Law on Prohibition of Discrimination

    contains exceptions to the principle of equal treatment, recognizing that in certain

    limited instances, differential treatment will always be reasonably and objectively

    justified. Such situations include those that seek to remedy previous

    discrimination or disadvantages in public life and employment by promoting the

    active participation of particular groups. For instance, if a temporary law is

    designed to prevent or compensate damages that persons suffer due to

    discrimination under Article 2 of the BiH Law on Prohibition of Discrimination,

    and thereby enables those persons active participation in public life,discrimination is allowed.

    64 The exceptions also allow employers to give special

    treatment to people with disabilities if such treatment is necessary for them to train

    and do their jobs.65

    Additionally, in certain professional activities where a persons

    features (including religious beliefs) affect how he can perform his duties,

    preferential treatment may be legally permissible.66

    Discrimination is also legally

    permissible with respect to citizenship, as stipulated by law.67

    Finally, the law

    allows for differential treatment of groups under family law, which provides

    certain requirements for marriage and favors arrangements that protect the rights

    and privileges of children.68

    Thus, it is clear that laws or other provisions that codify preference or give

    one group an advantage over another, without a reasonable and objective

    justification, are inherently discriminatory and impermissible under BiH law.

    Unless differential treatment fits into one of the permissible examples discussed

    above, or differential treatment can be reasonably and objectively justified,

    63Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 10 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=67930.64

    Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available athttp://www.unhcr.org/refworld/docid/4d302a9f2.html.65Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.66Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available athttp://www.unhcr.org/refworld/docid/4d302a9f2.html.67Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.68Law on Prohibition of Discriminationart. 5 (Bosnia and Herzegovina, 2009), available at

    http://www.unhcr.org/refworld/docid/4d302a9f2.html.

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    preference for one group over another is not permissible under BiH Constitutional

    Court precedent.

    Direct v. Indirect Discrimination

    Like the BiH Law on Prohibition of Discrimination, the ECHR prohibits

    both direct and indirect discrimination. Sejdic and Finci is an instance of direct

    discrimination, because the BiH Constitution and Election law explicitly divide

    and exclude groups based on their ethnicities. However, measures that are not

    discriminatory at face value are still discriminatory in fact if they give preference

    to one group over another or are disadvantageous to one particular group. Though

    this type of indirect discrimination is sometimes linked to concepts of positive

    action, discussed above, the two concepts are considered to be distinct by the

    ECtHR. Whereas positive action involves a specific right of a disadvantaged or

    disabled individual, indirect discrimination involves comparatively equal treatmentwith unequal impacts.

    69

    This distinction is illuminated by ECtHR case law. InHoogendijk v. the

    Netherlands, the ECtHR found that, where a specific rule, neutral of its face,

    disproportionately impacts women, the burden shifts to the government to show

    that it is the result of objective factors unrelated to discrimination.70

    Shifting the

    burden to the respondent is a response to the difficultly of proving indirect

    discrimination or showing the advantage given to another group. In this case, a

    Dutch disability allowance, granted only if the income of a family member who

    was obliged to contribute was below a certain level, resulted in more women than

    men losing the benefit.71

    The above case clearly indicates that giving preference to one group over

    another, even when indirectly based on a facially neutral provision, is

    discrimination in the absence of a reasonable and objective justification. Thus, any

    provision that is more advantageous to one or more groups than other groups

    without a reasonable and objective justification constitutes impermissible

    discrimination under BiH and European law.

    69Christa Tobler,Limits and Potential of the Concept of Indirect Discrimination , EUROPEAN COMMISSION,51-52(2008), available atec.europa.eu/social/BlobServlet?docId=1663&langId=en.70Hoogendijk v. the Netherlands, European Court of Human Rights (2005), available at

    http://eu.vlex.com/vid/hoogendijk-v-the-netherlands-26781811.71Hoogendijk v. the Netherlands, European Court of Human Rights (2005), available at

    http://eu.vlex.com/vid/hoogendijk-v-the-netherlands-26781811.

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    Discrimination on Ethnic Grounds

    According to the ECtHR, differential treatment on the basis of ethnicity

    requires heightened scrutiny, and minorities that have suffered discrimination in

    the past, such as those in BiH who have been excluded from assuming a range of

    public positions, deserve special protection by the government, rather than

    continued isolation.72 However, the ECtHR and the BiH Constitutional Court

    disagree with regard to whether BiH still has reasonable and objective

    justifications for continued differential treatment of ethnic minorities and

    constituent peoples who are minorities within given entities, such as Serbs in the

    Federation of BiH and Bosniaks and Croats in the RS.

    European Court of Human Rights

    InD.H. and Others v. Czech Republic, the ECtHR held that ethnic

    discrimination is a particularly invidious type of discrimination; that no

    difference in treatment which is based exclusively or to a decisive extent on a

    persons ethnic origin is capable of being objectively justified in a contemporary

    democratic society built on the principles of pluralism and respect for different

    cultures; and that differential treatment based on ethnicity requires from the

    authorities special vigilance and a vigorous reaction.73

    Moreover, the Court held

    that, in cases of ethnic discrimination, reasonable and objective justifications

    proffered by states will be interpreted as strictly as possible, meaning there mustbe a narrow fit between the aim sought by the differential treatment in question and

    the means used in pursuit of that aim.74

    Though the ECtHR did not holdthat a

    showing of disadvantage by one group is necessary to prove differential treatment,

    it did hold that groups that have suffered disadvantages in the past, such as Roma,

    are more vulnerable to discrimination and therefore require special protection by

    72D.H. and Others v. Czech Republic, European Court of Human Rights, para. 182 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256.73

    D.H. and Others v. Czech Republic, European Court of Human Rights, para. 176 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256).74D.H. and Others v. Czech Republic, European Court of Human Rights, para. 196 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256);see also Elizabeth Raulston, (Un)Justifiable?: AComparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights and the

    Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW669

    (2013).

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    authorities.75

    The ECtHR reiterated these principles with regard to ethnic

    discrimination inAziz v. Cyprus and Sejdic and Finci.76

    InAziz v. Cyprus, the ECtHR held that Cyprus violated Article 14 in

    conjunction with Article 3 of Protocol 1 (guaranteeing electoral rights with regard

    to election to the legislature).77

    In this case, the Cypriot Constitution divided the

    legislature between Turks and Greeks, with different electoral rolls. In 1963,

    Turkish representatives withdrew and set up their own government in northern

    Cyprus. The applicant, Aziz, was a Turk living in Greek Cyprus who was denied

    the right to vote for representation in the legislature of Greek Cyprus.78

    The Court

    held that this arrangement amounted to ethnic discrimination because the state had

    no reasonable and objective justification for Azizs treatment. In other words, it

    had no legitimate aim for the treatment (aside from arguing that Azizs exclusion

    was purely circumstantial after the Turkish withdrawal and amendment of the

    Constitution would be too complicated) and the means used (total exclusion ofTurks from the electoral system) was not proportionate.

    79 The Court held that, in

    cases of electoral discrimination, it will consider a violation of Article 3 of

    Protocol 1 in conjunction with Article 14, rather than focusing only on the former,

    if inequality of treatment is a fundamental aspect of the case.80

    In this case, the

    Court found that inequality of treatment was a fundamental aspect because the

    electoral arrangements in Cyprus effectively precluded the applicant from

    participation in election to the legislature, based solely on his ethnicity and

    domicile within Greek Cyprus.81

    FollowingAziz, the government in Greek Cyprus

    passed legislation granting Turkish Cypriots rights to vote and run for office in

    elections to the legislature, the presidency, and municipal governments.82

    75D.H. and Others v. Czech Republic, European Court of Human Rights, para. 182 (2007), available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256).76Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 32 (2009) available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.77Aziz v. Cyprus, European Court of Human Rights (2004).78Aziz v. Cyprus, European Court of Human Rights, para. 11, 16 (2004).79Aziz v. Cyprus, European Court of Human Rights, para. 20-21, 37 (2004); see also Elizabeth Raulston,

    (Un)Justifiable?: A Comparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights

    and the Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW

    669 (2013).80

    Aziz v. Cyprus, European Court of Human Rights, para. 35 (2004);see also Elizabeth Raulston, (Un)Justifiable?:A Comparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights and the

    Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW669

    (2013).81Aziz v. Cyprus, European Court of Human Rights, para. 36 (2004);see also Elizabeth Raulston, (Un)Justifiable?:A Comparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights and the

    Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW669

    (2013).82Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, National Parliaments and

    International Human Rights Law: Implementation of the Principle of Non-Discrimination, Speech to the European

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    In Sejdic and Finci, the ECtHR held that BiH has no reasonable and

    objective justification for treating ethnic minorities differently than the three

    constituent peoples with regard to election to the Presidency and the House of

    Peoples under the Constitution and the Election Law. The Court based its decision

    on the following factors: the positive developments toward peace in BiH since

    1995; the ability to structure power-sharing in a way to include Others; BiHs

    own goals for EU accession; and BiHs experience with amending its Constitution

    in 2009.83

    Though ensuring appropriate representation for various ethnic groups

    remains a legitimate aim, the ECtHR concluded that a multi-ethnic composition

    can be ensured in a nondiscriminatory way and without entering into conflict

    with international standards.84

    The ECtHR cited a 2009 European Commission report on BiH which noted

    that, although discrimination in the Constitution and Election Law was oncenecessary to establish peace in BiH, its racially discriminatory roadblocks have

    stymied, rather than facilitated, political growth and BiHs progress towards

    joining the EU.85

    The ECtHR also observed that BiHs candidacy for EU and

    NATO membership resulted in positive advancements for the country, and that

    BiHs decision to become a member of the Council of Europe as well as its

    expressed desire to join other European groups illustrates its willingness to abide

    by Europes human rights standards.86

    Finally, the ECtHR cited a 2006 Venice

    Commission report that described various alternatives to BiHs current political

    system that could effectively manage the state while sharing powers amongst the

    states ethnic populations, such as providing for election to the Presidency through

    direct elections from the Federation and the RS without ethnic requirements, or a

    more dramatic approach of providing for election through indirect elections, with

    decreased power for the Presidency (which was preferred by the Venice

    Commission).87

    Conference of Presidents of Parliament (June 12, 2010), available at

    https://wcd.coe.int/ViewDoc.jsp?id=1634471&Site=COE.83

    Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 47-50 (2009) available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.84

    Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 75-77 (2009) available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.85European Commission, Bosnia and Herzegovina 2009 Progress Report, SEC (2009) 1338, 7-8 (Oct. 14, 2009),

    available athttp://ec.europa.eu/enlargement/pdf/key_documents/2009/ba_rapport_2009_en.pdf.86Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 49 (2009) available at

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491.87European Commission for Democracy Through Law, Opinion on Different for the Election of the Presidency of

    Bosnia and Herzegovina, CDL-AD(2006)004 (March 20, 2006), available at

    http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)004-e.

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    BiH Constitutional Court

    The BiH Constitutional Court has also dealt with discrimination on ethnic

    grounds, but with different results. InAppeal of Stranka za Bosnu i Hercegovinu

    and Mr. Ilijaz Pilav, the Court acknowledged that the inability of Others to run

    for election to the Presidency and the House of Peoples under both the Constitution

    and the Election Law constitutes differential treatment. Although the Court did not

    say that differential treatment must amount to unfavorable treatment to constitute

    discrimination, the Court acknowledged that the differential treatment of Others

    effectively restricted their electoral rights.88

    However, the Court held that there is

    a reasonable and objective justification for differential treatment of Others.

    In Pilav, the Court cited preservation of the established peace as a

    legitimate aim and concluded, without any further analysis, that the means used

    (complete exclusion of minorities from election to the Presidency and the House ofPeoples) were proportionate to that aim.89 The Court stated that given the current

    situation in BiH and specific nature of its constitutional order as well as bearing in

    mind the current constitutional and law arrangements, differential treatment

    policies are not arbitrary and are based in the law.90 Further, the Court declared

    such policies proportional to the objectives of the general community, mainly

    peace preservation, continuation of dialogue, and the creation of conditions for

    amending the mentioned provisions of the Constitution of Bosnia and Herzegovina

    and Election Law.91

    In a different challenge to BiHs Election Law, and by extension the

    Constitution, the Court refused to consider the merits of the discrimination claim

    altogether. In Case No. U-13/05, filed by the Chair of the Presidency, Sulejman

    Tihi#, the Court held that it lacked jurisdiction to strike down provisions of the

    Constitution, regardless of whether or not they conflict with the ECHR.92

    The

    88Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 10 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=67930.89Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 10 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=67930;see also Elizabeth Raulston, (Un)Justifiable?: A

    Comparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights and theConstitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW669

    (2013).90Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 11 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=67930.91Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 11 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=67930.92Sulejman Tihic, Case No. U-13/05 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=43087; Sulejman Tihic, Case No. U-5/04 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=37994;see also Elizabeth Raulston, (Un)Justifiable?: A

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    dissenting opinion of Judge Constance Grewe, however, provides more analysis on

    the merits of the case, and notes that, even though distributing power among ethnic

    groups in order to preserve peace and stability in BiH is a legitimate aim, this aim

    can likely be achieved without entering into conflict with the non-discrimination

    provisions in Protocol No. 12 to the ECHR and other international standards.93

    Nevertheless, in a concurring opinion, Judge David Feldman concluded that the

    special and pressing needs of the state may continue to necessitate differential

    treatment of certain groups and there is a rational connection between the aim and

    the means adopted to pursue it.94

    Conclusion

    Because the BiH Law on Prohibition of Discrimination forbids the

    government from favoring one group of citizens without a reasonable and objective

    justification, as reaffirmed in BiH and ECtHR case law precedent, providing anadvantage to or preference for one group over another, in the absence of a

    reasonable and objective justification, constitutes discrimination. Further, as held

    by the ECtHR, continued differential treatment of constituent peoples and Others

    solidifies ethnic divisions in BiH and undermines the improvements made in BiH

    to date. Therefore, differential treatment of ethnic groups in BiH is no longer

    reasonably or objectively justified, and thus constitutes discrimination under both

    BiH and European law.

    Comparison of Electoral Discrimination Jurisprudence at the European Court of Human Rights and the

    Constitutional Court of Bosnia and Herzegovina, 28 AMERICAN UNIVERSITY INTERNATIONAL LAW REVIEW669(2013).93Sulejman Tihic, Case No. U-13/05, 11 (2006), available at

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=43087.94Sulejman Tihic, Case No. U 13/05, 14-15 (2006), available at.

    http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=43087.