Information Note on the Court’s case-law 267
October 2022
Pinkas and Others v. Bosnia and Herzegovina - 8701/21
Judgment 4.10.2022 [Section IV]
Article 1 of Protocol No. 12
General prohibition of discrimination
Unjustified difference in treatment by domestic courts, on the basis of “other status”, of judicial clerks vis-à-vis judges, concerning period of entitlement to work-related allowances : violation
Facts –The applicants, a group of 51 judicial clerks at the State Court, brought a joint civil action with judges from the same court, seeking payment of meal, travel and family separation allowances from 2009 onwards, on the basis of discrimination, as the legislation regulating their salaries did not provide for those allowances at the time. Following an application by the State Court for abstract constitutionality review, in January 2013 the relevant legislation was declared unconstitutional by the Constitutional Court, regarding their specific complaint, due to its discriminatory nature.
The joint civil action was severed into two cases on the grounds of the claimants’ status. They were then heard separately. The applicants’ claim was granted only in respect of the period after January 2013 pursuant to the general rule that decisions declaring legislation unconstitutional did not have retroactive effect.
The applicants lodged a constitutional appeal. Shortly after, the judges’ civil action was ruled upon, with them being awarded allowances starting from 2009; that ruling was upheld on appeal. The applicants unsuccessfully sought to rely on that judgment in their constitutional appeal which was dismissed.
Law –
Article 6 (1):
(a) Applicability of civil limb – Although the crux of the applicants’ complaint concerned the outcome of their civil proceedings, they had also complained indirectly about the outcome of those before the Constitutional Court. Article 6 § 1 was applicable to those proceedings as well: the Constitutional Court had the power to quash the impugned decision and thus the proceedings had been directly decisive to the dispute over the applicants’ civil right.
Conclusion : Article 6 § 1 applicable
(b) Merits –Addressing the decisions given in the applicants’ civil case, the Court emphasised the principle of subsidiarity and agreed with the Constitutional Court that they had clearly been in line with domestic constitutional law and were therefore not arbitrary. Although an opposite decision had been rendered in the almost identical case concerning the judges, this had happened many months after the decision in the applicants’ case had become final. There was no existence of “profound and long-standing” differences in the domestic case-law that could lead to a breach of the fair trial requirement enshrined in Article 6 § 1.
The Constitutional Court had treated the applicants’ submission of the final decision concerning the judges’ allowances as a new complaint under Rule 22 § 3 of its Rules, rather than a legal and factual development relevant to the case under Rule 21 § 6. It had thus held that it could not take it into consideration because the applicants had notified it of the said decision, more than sixty days from the delivery of the last judgment in their own case. In this regard, the Court emphasised that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal were clearly aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty. Although the Constitutional Court had not elaborated as to why it had decided to treat the submission under the former rule and not the latter, the applicants had not complained that the way in which it had interpreted and applied its procedural rules in their case had been in itself arbitrary.
Conclusion: no violation (unanimously)
Article 1 of Protocol No. 12:
(a) Applicability – Although it was not clear whether the applicants had been entitled to the allowances also in respect of the period before January 2013, Article 1 of Protocol No. 12 extended the scope of protection not only to “any right set forth by law” but beyond that with paragraph 2 providing that no one may be discriminated against by a public authority, including the courts.
Conclusion: Article 1 of Protocol No. 12 applicable
(b) Merits – The meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 of the Convention and therefore there was no reason to depart from the established interpretation of “discrimination”. The Court considered that the judicial clerks and the judges at the State Court had been in a relevantly similar situation for the purposes of the complaint, because the same legal regime applied to both categories of public servants in respect of the allowances claimed. The fact that their legal status had been different in many other respects was irrelevant. Elements which characterised different situations, and determined their comparability, must be assessed in the light of the subject-matter and purpose of the measure which made the distinction in question. Analysis of the question of whether or not two persons or groups were in a comparable situation for the purposes of an analysis of differential treatment and discrimination was thus both specific and contextual.
Having been granted the allowances for different periods, the two categories of public servants had been treated differently. The reasoning of the domestic courts had not been directly based on an identifiable characteristic, or “status”, of the litigants, but couched in neutral terms. There was also no reason to believe that the domestic courts had discriminatory intent. However, a general policy or measure that has disproportionately prejudicial effects on a particular group might be considered discriminatory even where it was not specifically aimed at that group. Such a situation might amount to “indirect discrimination”, which did not necessarily require a discriminatory intent.
The special feature of the instant case was that the judges and the judicial clerks had brought a joint civil action relying on the same legal provisions, that the civil courts had then severed their case into two cases on the grounds of their status and had reached opposite conclusions regarding one of the key legal issues raised in those cases. As a result of that special set of circumstances, they had been treated differently with respect to the entitlement period for the allowances. Accordingly, that difference in treatment had been based on “other status” within the meaning of Article 1 of Protocol No. 12.
Given that neither the Government nor the domestic courts had offered any justification whatsoever for this difference in treatment, the difference in treatment had no objective and reasonable justification.
Conclusion: violation (unanimously)
Article 41: EUR 1,000 to each of the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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