Identifying and determining comparable groups

Not every difference in treatment will amount to a violation of the prohibition of discrimination. Therefore, it must be established whether certain persons in an analogous or relevantly similar situation enjoy preferential treatment, and then it is necessary to examine whether there is a reasonable or objective justification for this distinction.²²⁵⁵ This means that it is necessary to determine whether or not comparable groups exist. Consequently, one cannot claim discrimination against oneself in different situations.²²⁵⁶

It is not necessary to have identical situations. For example, the BiH Constitutional Court accepted that the case involved a comparable situation where the employer, despite the fact that it had four job vacancies for professors, announced only three job vacancies.²²⁵⁷ In addition, judicial actions may be equally comparable.²²⁵⁸ In principle, there are no comparable situations where in one case a certain legal norm was in effect, which was decisive for the case in question, and it was not in effect in another case²²⁵⁹ or the legal norm was, in the meantime, modified.²²⁶⁰ Thus, there is no discrimination in a case where the JNA-pensioners, who had paid contributions to the JNA-Pension Fund in Belgrade while serving in the JNA but residing in Sarajevo, receive lower pensions than their colleagues who had paid contributions to the Pension Fund in Sarajevo. The reason for this is the mere fact that the first category did not acquire the right related to the Pension Fund in Sarajevo. Moreover, in case the BiH Fund decides, for humanitarian reasons, to pay a certain pension amount to this category of pensioners, it does not mean that they are entitled to equality.²²⁶¹

Further, there is discrimination in respect of the right to social security safeguarded by Article 9 of the International Covenant on Economic, Social and Cultural Rights in cases where a returnee to the Federation of BiH (where he lived prior to the armed conflict and where he acquired the right to social security, including the right to a pension) is not guaranteed the same rights to social security as persons who did not leave the territory of the Federation of BiH during the armed conflict. In addition, the Human Rights Chamber construed the status of displaced persons, within the meaning of Annex 7 to the Dayton Peace Agreement, in close connection with their ethnic origin, so that differential treatment is connected with one of the “so-called” statuses (nationality) relevant for the purposes of Article II.2(b) of Annex 6 to the Dayton Peace Agreement. The return of refugees and displaced persons as the key element of the Peace Agreement is hindered if the pensioners’ return to the Federation of BiH may fail as the affected persons, who receive much lower pensions in the Republika Srpska, are not able to return to live in the Federation of BiH where the cost of living is much higher and where they have to live on their Republika Srpska pensions.²²⁶² The decisive fact is whether or not an affected person wants to return to the Federation of BiH. If an affected person has already returned (similar, for example, in the case of Kličković et al.) or if he/she may prove the intention to return, his/her decision to return must not be brought in question by the fact that a returnee who receives a lower pension in the Republika Srpska cannot afford the cost of living in the Federation of BiH, which is far higher than in the Republika Srpska. So, in an opposite situation, this means that it is not justified to recognise the right to a pension payable from the Federation of BiH Pension Fund to pensioners who left the present territory of the Federation of BiH during the war and moved to the present territory of the Republika Srpska and who do not want to return to their pre-war homes.²²⁶³