There is no right to equality in “unlawfulness”

A special problem is related to the question of whether the right to equal treatment exists in the event of the State acting unlawfully under the same or similar circumstances. Those are the situations where the authorities or courts take decisions in favour of individuals although an obvious unlawfulness is in place and, then, third parties seek the same treatment, the same regime, i.e., the same decision because they are in the same or similar situations. The BiH Constitutional Court has been convincing so far while reasoning that no person is entitled to seek equality in “unlawfulness” because it will lead to a situation where the State will act in an unlawful manner again. In other words: there is no discriminatory treatment if an injured party facing a comparable situation is treated less favourably but lawfully because such a comparable situation, which the party refers to, was obviously resolved in an unlawful manner. In the instant case it is about the Court’s decision dealing with the complaint of the expiry of the limitation period concerning the appellant’s right and according to this decision the complaint was rightly granted although the courts, in similar situations, dismissed such complaints unlawfully.²²⁸⁷

The decision of the BiH Constitutional Court No. AP 98/03 should be interpreted in light of the aforementioned obligation of the state authorities to act in a lawful manner since such reasoning was missing in the mentioned decision. In this way an impression is created that, nevertheless, there is a possibility to submit a request for equal treatment even when it would mean that the competent authorities must decide again in an unlawful manner. Unlike in Case Nos. U 49/02 and AP 653/03, in Case No. AP 98/03 the BiH Constitutional Court failed to examine the lawfulness of the decision challenged by the appellant before the BiH Constitutional Court and the decision which was submitted for the purpose of proving that he was unequally treated. By failing to give any further reasoning or to analyse the case the Court directly established that in the comparable situation it decided, without a justified reason, in a different manner which resulted in the appellant being discriminated against. By referring to the judicial practice of the European Court, the Constitutional Court presented arguments that the domestic courts, in addition to fair and objective proceedings, must also apply the same standards in cases with a similar factual and legal substrate.²²⁸⁸ This conclusion should be supported in cases in which it is possible to interpret a relevant norm in different ways so that each interpretation may be considered theoretically lawful. The principles of legal certainty and equal treatment oblige all the authorities to envisage a possible decision in a comparable situation.²²⁸⁹ In that manner, the legal opinion from the previous decision could be changed only based on the relevant justified reasons in order to avoid arbitrariness. This applies to administrative cases where the administrative authorities, by force of law, enjoy a certain margin of appreciation or to adjudicate cases if the law allows for desecration of the court to act within the lawful borders like, for instance, in cases of determining a criminal sanction or awarding compensation for damage.²²⁹⁰

However, if it comes out that the courts and administration have acted in an unlawful manner in similar situations there is a justified reason for deviation from such a precedent case or practice. Despite the principle on obligation of equal treatment and principle of legal certainty the State cannot be forced to repeat an unlawful decision. On the one hand, public authorities – administration and courts – pursuant to the BiH Constitution are obliged to comply with the law and the BiH Constitution. On the other hand, the confidence that the court will act in an unlawful manner is not worthy of protection even if, in certain situations, such acting would have a positive effect on the individual situation.

Accordingly, there is no right to equal treatment in unlawfulness.