Grounds of discrimination

In the further procedure on the examination of discrimination it should be established whether the unequal treatment is based on certain grounds, in other words whether it is based on a personal feature of the injured person (prospective victim of discrimination) such as: ethnicity, religion or language. The features listed in Article 14 of the ECHR are not itemised but rather they represent the most significant examples. This is clearly confirmed in the last part of the first sentence of Article 14 of the ECHR (“or other status”).²²⁶⁴ However, a person is unequally treated, which is legally relevant, only if a certain feature may be identified. Accordingly, in order to establish that there is discrimination it is not sufficient that a person claims, in general terms, that he/she is unequally treated without pointing to the grounds of inequality.²²⁶⁵ In its decisions, the BiH Constitutional Court has failed to clarify the grounds of discrimination, i.e., what feature of an injured person constitutes a basis for unequal treatment.²²⁶⁶ If unequal treatment is directly linked with one of the explicitly defined features in Article 14 of the ECHR, then a special burden of proof rests with the State that such treatment is justified.²²⁶⁷

Unequal treatment applied on the basis of essential features of individuals is found in the following cases: an administrative body does not allow a certain person to return to his/her pre-war apartment based on his/ her ethnic ground or origin, but the members of another ethnicity are allowed to do so;²²⁶⁸ a judicial body prevents a private prosecutor from conducting fair criminal proceedings because of his/her ethnicity;²²⁶⁹ during the armed conflict an employer puts only the employees of Bosniak or Croat ethnicity on the waiting list;²²⁷⁰ in a small area of the RS an administrative body gives an order to destroy only Bosniak and Croat houses;²²⁷¹ a special regulation on repossession of the so-called JNA apartments, when compared to repossession of other apartments, constitutes differential treatment based on ethnic grounds;²²⁷² deprivation of liberty for the purpose of the exchange of prisoners or forced labour or inhumane treatment on solely ethnic grounds;²²⁷³ deprivation of the right to equal protection before the court (Article 26 of the International Covenant on Civil and Political Rights), in a way that the police authority failed to offer protection to an individual from the attack and insult of a third party;²²⁷⁴ the court guarantees a certain degree of social protection only to persons whose spouse died but denies that protection to persons who lived in factual informal marriage with their cohabiting partner who died;²²⁷⁵ creating quantitative difference with respect to the right to receive support from the spouse in proportion to his/her earnings.²²⁷⁶