Justification

Not every form of unequal treatment constitutes discrimination. Such kind of treatment may be justified under certain circumstances. Unequal treatment of similar or identical (the so-called comparable) categories constitutes a prohibited form of unequal treatment – discrimination – only if it is not in accordance with law, if it does not pursue a legitimate aim and is not proportional. That is to say that such treatment is not necessary or that less severe and available means were not used for the purpose of achieving the same goal or that the means used were not proportional to the aim sought to be achieved.²²⁷⁷

Thus, unequal treatment on the ground of sex may be justified if there are justified reasons for such treatment. Also, an employment policy may be linked with an ethnicity criterion if a balance is to be struck with respect to the representation of different ethnic groups, for instance, in administrative bodies. In order to achieve that legitimate aim, which is permissible per se, the process of selection of candidates must be, if nothing else, transparent, fair and objective and the special personal circumstances of each candidate must be taken into consideration.²²⁷⁸ Also, it is justified on the merits if the State offers its support to members of legitimate military forces only and not to members of paramilitary groups.²²⁷⁹ The State is entitled to reconstruct judicial authority personnel, which means that there is a legitimate aim defined by law. But, if the State sets a maximum age limit as a criterion for employment (of course, if the set age limit is lower than the one required for retirement), it will be considered that the State has violated the principle of proportionality.²²⁸⁰ It will be considered that the State pursues a legitimate aim in the cases of allocation of JNA apartments to soldiers and veterans of its own military force being in need of housing. However, as to the criteria to be met by the pre-war members of the JNA in order to be able to repossess their apartments, such as having BiH citizenship, the Human Rights Chamber for BiH found them not to be proportional.²²⁸¹