Amicus Curiae Brief

Strasbourg, 14 October 2013 CDL-AD(2013)027 Or. Engl. Opinion No. 736 / 2013 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) AMICUS CURIAE BRIEF FOR THE CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA ON THE COMPATIBILITY WITH THE NON-DISCRIMINATION PRINCIPLE OF THE SELECTION OF THE REPUBLIC DAY OF THE REPUBLIKA SRPSKA Adopted by the Venice Commission at its 96th Plenary Session (Venice, 11-12 October 2013) on the basis of comments by: Ms Veronika BILKOVA (Member, Czech Republic) Mr Latif HUSEYNOV (Member, Azerbaijan) Mr Kaarlo TUORI (Member, Finland) _____________________________________________________________________________________________ This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int - 2 - CDL-AD(2013)027 I. Introduction 1. The Venice Commission received a request on 20 June 2013 from the Constitutional Court of Bosnia and Herzegovina (hereinafter BiH) to provide an amicus curiae brief in relation to the review of the constitutionality of Articles 2.(b) and 3.(b) of the Law on Holidays of the Republika Srpska. 2. The specific question asked is ”whether […] the selection of January 9th as the date of the observance of the holiday of the Day of the Republic can result in the discrimination against the members of the Bosniac and Croat people and Others who live in the Republika Srpska, within the meaning of Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 1(1) and Article 2(a), (b), (c), (d) of the International Convention on the Elimination of All Forms of Racial Discrimination”. 3. Ms Veronika Bilkova, Mr Kaarlo Tuori and Mr Latif Huseynov acted as rapporteurs in the preparation of this amicus curiae brief. The rapporteurs drafted their comments on the basis of the English translation of the Law. In the course of the preparation of the opinion, national Constitutional Courts were consulted for background information including domestic legislation and/or case law related to the issue under examination. 4. The present amicus curiae brief was adopted by the Venice Commission at its 96th Plenary Session (Venice, 11-12 October 2013). II. Background 5. The present analysis only deals with the question addressed to the Venice Commission by the Constitutional Court of BiH, in the light of the European and international standards in the field of the protection against discrimination. It does not address the concrete case at hand. Hence, although the original request for the review of constitutionality of the Law on Holidays of the Republika Srpska touches upon also questions of fact and procedural aspects, these will not be covered by the present document, as it is not for the Venice Commission to pronounce on these issues. 6. At the same time, there are elements of the domestic case law and issues of BiH constitutional law which are of relevance in the present analysis and need to be pointed out (see sections B and C of the present Chapter). A. International standards 7. The prohibition of discrimination is one of the most fundamental principles of current international human rights law. It is enshrined in a series of international instruments, including the 1948 Universal Declaration of Human Rights (Article 2), the 1966 International Covenant on Civil and Political Rights (Article 26), the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, Article 1) and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14 of the Convention and Protocol 12 to it). The prohibition cannot be derogated from even in time of public emergency (Article 4(1) of the ICCPR, Article 15 of the ECHR). - 3 - CDL-AD(2013)027 8. Art. 1(1) ICERD lays down that “in this Convention, the term ’racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. 9. Art 2(1) a)-d) provides that “States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.” 10. The ECHR, entered into force in BiH on 12 July 2002, states, in its Article 14 - Prohibition of discrimination: „The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 11. Art 1 of Protocol No. 12 to the ECHR provides that ”the enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. It further sets out in para 2 that “no one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1”. 12. The European Convention prohibits discrimination without defining the term. The Strasbourg Court has however progressively developed a definition of discrimination in its case-law. Under it, discrimination means “treating differently, without an objective and reasonable justification, persons in analogous, or relevantly similar, situations”.1 Discrimination also occurs “when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”2 or if “disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group”34. 1 ECtHR, Willis v. the United Kingdom, Application No. 36042/97, 2002, par. 48; D.H. and Others v. the Czech Republic, Application No. 57325/00, 2007, par. 175; Burden v. the United Kingdom, Application No. 13378/05, 2008, par. 60; Kiyutin v. Russia, Application No. 2700/10, 2011, par. 59. 2 ECtHR, Thlimmenos v. Greece, Application No. 34369/07, 2000, par. 44 3 ECtHR, D.H. and Others v. the Czech Republic, Application No. 57325/00, 2007, par. 184. 4 See also the Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin which, though not legally binding on BiH, can be used as a helpful interpretative tool reflecting the case law of the European Court. Under the Directive, direct discrimination “shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin” (Article 2(2)(a)); indirect discrimination “shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular - 4 - CDL-AD(2013)027 13. The European Court, similarly to the UN committees (CERD and HRC), is of the opinion that differentiated treatment is only considered discriminatory “if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”.5 14. The Strasbourg Court confirmed, in the Sejdić and Finci Case6, in which discrimination of a Roma and a Jew citizen of BiH was found out, that unjustified differentiated treatment based on the ethnic origin of individuals belonging to various Constituent peoples and to the Others in BiH could fall under Article 14 of the European Convention and/or Protocol 12. In this case, moreover, the European Court asserted that “discrimination on account of a person’s ethnic origin is a form of racial discrimination”.7 B. Constitutional framework 15. According to Art II.1 of the Constitution of BiH, “Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms”. 16. Art II.2 lays down that “the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in BiH” and that ”these shall have priority over all other law”. 17. Art II.4 of the Constitution provides that “the enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. 18. Finally, according to Art II.6, “Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above”.

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