The scope of protection against discrimination

The European Court holds that, where a substantive Article of the ECHR has been invoked and a separate breach has been found of the substantive Article, it is not generally necessary for the Court also to examine additional allegations on discrimination in the enjoyment of the rights or freedoms under the ECHR, though the position is otherwise if clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case. Taking into account the importance of the prohibition of discrimination enshrined in the Dayton Agreement (Article II.2(b) of Annex 6 to the Dayton Peace Agreement), the Human Rights Chamber found itself called upon to act in a different way.²²⁴⁷

According to the case-law of the European Court, followed by the BiH Constitutional Court, the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court, Article 14 of the ECHR complements the other substantive provisions of the ECHR and it has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by those provisions. Thus, the prohibition of discrimination is of an accessory nature. Nevertheless, the establishment of a violation of the prohibition of discrimination does not depend on the establishment of a violation of the right or freedom to which discrimination relates. Namely, even in cases where there is a justified interference with the rights or freedoms safeguarded by the ECHR, the possibility that the affected person has been discriminated against in the enjoyment of that right or freedom is not ruled out.²²⁴⁸ Therefore, a violation of the prohibition of discrimination may exist not only in cases where a violation of the rights or freedoms safeguarded by the ECHR has been established but also in cases where such a violation does not exist. However, in order for one to enjoy the right not to be discriminated against, the precondition is that the relevant case must fall within the scope of protection of a certain right or freedom protected by the ECHR (compatibility ratione materiae).²²⁴⁹

Article 14 of the ECHR, i.e., Article I.14 in conjunction with Article II.2(b) of Annex 6 to the Dayton Peace Agreement, affords protection against discrimination in the enjoyment of the other substantive provisions safeguarded by the ECHR, i.e., in the enjoyment of the other rights or freedoms safeguarded by Annex 6 to the Dayton Peace Agreement.²²⁵⁰ The BiH Constitutional Court holds that Article II.4 of the BiH Constitution provides for a wider scope of protection than Article 14 of the ECHR, as Article II.4 of the BiH Constitution stipulates that an individual shall be entitled to protection against discrimination not only in respect of the rights or freedoms protected by the ECHR, but also in respect of the other rights or freedoms safeguarded by the BiH Constitution, including the instruments comprised in Annex I to the BiH Constitution.²²⁵¹ The protection extends through Article II.5 of the BiH Constitution to the rights or freedoms safeguarded by Annex 7 to the Dayton Peace Agreement. In particular, pursuant to Articles II.4 and II.5 of the BiH Constitution in conjunction with Article I.3(a) of Annex 7 to the Dayton Peace Agreement, the Entities are obliged to prevent and abolish “domestic legislation and administrative practices with discriminatory intent or effect”.²²⁵² Subsequently, the BiH Constitutional Court accepted such a wide scope of protection also for Article 14 of the ECHR.²²⁵³

In the opinion of the Human Rights Commission within the BiH Constitutional Court, Article 26 of the International Covenant on Civil and Political Rights, compared to Article 14 of the ECHR and Article 2 of the International Covenant on Civil and Political Rights, goes even further as to protection. The reason for this is that the said Covenant guarantees an independent right to equality before the law and equal protection through the law.²²⁵⁴