01 Nov The difference in the treatment of judges and court clerks led to discrimination

In the case Pinkas and Others v. Bosnia and Herzegovina (application no. 8701/21, 04.10.2022) the European Court found a violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) to the European Convention on Human Rights.

The applicants are 51 nationals of Bosnia and Herzegovina who were born between 1953 and 1985. They were, or still are, judicial clerks at the Court of Bosnia and Herzegovina. The case concerns the difference in treatment regarding allowances for meals, travel and family separation between judges and judicial clerks and the court proceedings on that matter. The latter category received their allowances from January 2013 onwards only, whereas judges were paid for the period prior to that. This situation came about owing to a decision by the Constitutional Court in 2013, in which the lack of allowances up to then was ruled unconstitutional, and later civil proceedings at several levels of jurisdiction.

The Court considered that the judicial clerks (a category of public servants to which the applicants belong) and the judges at the State Court were in a relevantly similar situation for the purposes of this complaint, because the same legal regime applied to both categories of public servants in respect of meal, travel and family separation allowances.

It is not in dispute that the judicial clerks – including the applicants in the present case – were granted the work-related allowances at issue in respect of the period after January 2013 only, whereas the judges were granted those allowances also for the period before January 2013. The two categories of public servants were thus treated differently. The Court has noted that the reasoning of the domestic courts was not directly based on an identifiable characteristic, or “status”, of the litigants, but it was couched in neutral terms. There is also no reason to believe that the domestic courts had discriminatory intent.

However, the Court has held that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group. The special feature of the instant case is that the judges and the judicial clerks at the State Court brought a joint civil action relying on the same legal provisions, that the civil courts then severed their case into two cases on the grounds of their status and reached opposite conclusions regarding one of the key legal issues raised in those cases. Accordingly, the Court finds that this difference in treatment was based on “other status” within the meaning of Article 1 of Protocol No. 12.

The Government did not offer any justification for this difference in treatment. That being the case, the Court cannot but conclude that this difference in treatment had no objective and reasonable justification.

While the Court has already acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction (see paragraph 46 above), having regard to the very particular circumstances of the present case set out above and where no justification whatsoever was submitted, the Court considers that there has been a violation of Article 1 of Protocol No. 12.

Reference from the official website of the European Court of Human Rights