discrimination defined under bih and european law

8/12/2019 Discrimination Defined Under BiH and European Law

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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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2

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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3

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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4

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




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5

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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6

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




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7

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


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


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


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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8

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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9

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


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


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




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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


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


(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


(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


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.


discrimination defined under bih and european law

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