Indirect discrimination and the obligation of positive protection

A discriminatory intention and acting may be established not only in cases where a certain law or some other general or individual legal act directly creates distinctions based on certain criteria, such as religion or language, without a reasonable justification or argument. A law or some other legal act may be prima facie neutral but its effects may be of a discriminatory nature. Also, a certain act that is neutral per se may be applied in a discriminatory manner. Similarly, a certain law may be applied in a neutral manner but it might be that the said law was enacted with a discriminatory intent. Furthermore, a violation of the principle of prohibition of discrimination occurs in cases where the previous de iure discrimination is still in place due to the state authorities’ acts or omissions (which are non-discriminatory if separately viewed) in the forthcoming period.²²⁸²

Exactly the lastly mentioned form of prohibition of discrimination indicates that it is not only that the State has (a negative) obligation to refrain from discrimination by undertaking or by omitting to undertake certain actions but it also has a positive obligation to protect an individual from discriminatory behaviour of third persons. This specific obligation of the State arises from Article III.2(c) of the BiH Constitution. Pursuant to this provision, the Entities shall assure legal certainty and protection of persons under their jurisdiction in a way that they will support the institutions for enforcement of civil law in their compliance with internationally recognised standards, human rights and fundamental freedoms under Article II of the BiH Constitution and shall undertake other appropriate measures. As to the return of refugees and displaced persons which is a constitutional goal, these positive obligations have been amended by Article II.1 of Annex 7 to the Dayton Peace Agreement. Pursuant to the mentioned article, political, economic and social conditions should be created in the Entities which will contribute to the voluntary return and the harmonious reintegration of refugees and displaced persons without giving preferences over any specific group. Pursuant to Article I.3(a) of Annex 7 to the Dayton Peace Agreement, all ethnic groups and minorities should be protected from administrative bodies and their practice, as well as from private persons.²²⁸³ Indications that the courts act in a discriminatory manner occur if an injured party is a member of a “minority” in relation to the complete composition of the court and prosecutor’s office and when the courts make enormous procedural mistakes in the procedure and in the application of substantive-legal provisions (which could be considered as arbitrariness) and for which there is no reasonable justification).²²⁸⁴

Establishing that there is a violation of the prohibition of discrimination in conjunction with the right to equal treatment before the courts and other judicial authorities²²⁸⁵ is, definitely, redundans, i.e., it is a legal tautology. Namely, it means as follows: an individual whose right to equal treatment has been violated is actually unequally treated. It is enough to establish that an individual is unequally treated since the prohibition so implies in itself. There is a systematic failure hiding behind the double treatment found by the Chamber and it concerns the competences of the Chamber (which is authorised to apply the instruments from the Addendum to Annex 6 of the Dayton Peace Agreement) only when it comes to the prohibition of discrimination. As to cases where those instruments prohibit discrimination or unequal treatment, that instruction of restricted competence of the Chamber should be reduced for teleological reasons at least, which means it should not be applicable.²²⁸⁶