Date and place of thesis defense:
23.07.2009. Faculty of Law
mr. sc. Samir ZupareviŠ
prof. dr. Sead DizdareviŠ
Non-Discrimination guarantees in the European system for protection of Human Rights and Freedoms
After 1950s year and a adoption of Article 14 European Convention of Human Rights and Fundamental Freedoms, unlawful worse treatment of individuals because of its racial and religious identity is now under a protection of special supranational mechanisms for the protection of Human Rights within the Law of the European Communities and the European Union.
The main issue that needs to be addressed here is whether it is justified criticism traditional versions form of equality in the European Court of Human Rights case law. The primary is found that a fundamental principle of formal equality operates unequally on members racial and religious minorities. The European states are now found themselves in situation that their broad autonomy in disputes regarding racial and religious discrimination is quite limited in finding ways for a protection of marginalized groups listed. It should be thank a positive obligations for states which are imposed first of all judicial practice of European Court of Justice and then directives of the European Communities. Measures of positive discrimination are influenced by the same and are limited time of action.
Assent of states to signature of an agreement that will respect the prohibition of discrimination from the European Convention or EC directives for every person under its jurisdiction, still does not mean that the goverment is able to perform its obligations. There are many examples of states that signed the various international agreements, but shows a lack of will to ensure an effective remedy for victims of discrimination. Or, that is EU member state required by directives to make the appropriate anti-discrimination law, but it has also failed to bring. All this proves that the basis of prohibiting racial and religious discrimination, that are under the European Convention, can not be considered as final and permanently established.
Without normative evolution of national legislation in the areas covering EC directives have not adequate mechanism for appeal, which left the victims of discrimination because of unlawful differentiation by the national authorities. Useful effect of these complaints into the European system of protection of human rights and fundamental freedoms in front of the Court of Human Rights and the Court of Justice will be far greater if individuals who belong to racial and religious minorities gets to right that they will be refer to their legal rights without any discrimination before the national courts. Although the Council of Ministers of the European Union, in a series of its directives to combat discrimination, to require by member states that into the domestic legal order, they have provided for under the law an adequate remedy against violations of fundamental human rights and freedoms, victims of racial and religious discrimination are still not in law enough protected from such obviously harmful phenomena. EU member states are bounded by equality directives only within the aim that they want to achieve, while is the choice of form and resources left to national authorities. These directives are only implemented in the EU Member States, and not in other European countries including Bosnia and Herzegovina.
Scientific study of racial and religious discrimination in the European system for protection of human rights refers to three very important existential areas of human life: racism and religious discrimination in the employment sector, social sector, housing sector and education. Especially important is the protection against discrimination in the workplace and social sector. In the above mentioned areas, member of racial and religious minorities can make money for his existence in two different ways: their own work or through social assistance. Discrimination in the labor market exists in the employment sector, the workplace, and in case of unfair dismissal. Racism and religious discrimination in the housing sector concerns on problems of limited access to housing, inappropriate housing and segregation. Discrimination in the education sphere selects several themes of particular interest, including the issue of segregation, especially regarding the Roma, the issues of religious symbols and faith schools.
First, it is necessary to emphasize a main concepts-categoric device providing term and form of discrimination. This is primarily to process elements of a structure of discrimination ( the basis of differentiation and collectiveness ) and to give terms in affirmative action and positive discrimination, and also characteristics of direct and indirect racial and religious discrimination. A particular feature of the European system of protection of Human Rights consists a primary responsibilities of the state to protect from discrimination. The primary responsibility of the state member of the Council of Europe and signatory to the European Convention is expressed in number of the provisions of the European Convention, the most significant of which certainly is the obligation of the state, within its jurisdiction, secure the effective legal remedy for all the persons who considers himself victim of racial and religious discrimination in the violation of human rights and freedoms. One of the most important decisions in respect to a position of the state in the European system for the protection of human rights is certainly the principe of the subsidiary role of the European judicial tribunals: the European Court of Human Rights and theá European Court of Justice.
There are two concept of combating racial and religious discrimination in the European system for protection of human rights and freedoms: individualistic and collectivistic approach. Individualistic attitude upholds the principle of formal or < blind < justice for every person, regardless of identity of certain features. This concept defines the equal rights for all, regardless of what some have a better starting position then others who were disempowered of their rights esspecially in the past. Collectivistic view upholds by effective or substantial justice, which recognizes racial and religious minorities more favorable treatment in relation to most people. This concept of collective or group justice gives priority to members of such minorities to achieve their real social equality with majority. The European Convention of Human Rights and Fundamental Freedoms does not obliges Members of States to recognize special rights of racial and religious minorities. On several occasions, the European Court of Human Rights had confirmed that national authorities in principe enjoy the Margin of Appreciation in terms of the limits of respect of conventional rights.
Discriminatory treatment of private housing and company toward the members of marginalized groups justify constitutional guarantee rights to property. Content of this guarantees to conforms the right owner to peaceful enjoyment of property assets, but that is subject to different restrictions. However, the main issue that needs to be addressed here is whether it is possible to establish a fair balance between the requirements for protection of private autonomy and of the general interest of the community. EC directives allow emloyers a certain degree of freedom in the conduct of business policy that is focused with particular nature of business activities. Anyway, difference of treatment is discriminatory if it "has no objective and reasonable justification," that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aims sought to be realised."
However, legal and political development of the recent years compellingly requirements use of modern Anti-Discrimination standards in EU Member States. These standards are necessary due to conservative attitude of jurisprudence the European Court of Human Rights, which decided itself for primacy of the margin of appreciation by comparison with control mehanism of the European legal order. The standards consist of dynamic interpretation of non-discrimination by the European Court of Human Rights and the European Court of Justice, and systematic and abstract law regulations of affirmative action and positive discrimination.
Critique of "European interest" highlights the need to respect the doctrine margin of appreciation in limiting conventional rights. The state much better recognize local needs and determine conditions for the enjoyment of human rights with regard to any international or supranational judicial tribunal. Recognition of traditional ways of life, racial and religious minorities can not be exempt from respect with the law that each individual imposes values community as a whole, such as justice, environment preservation or professional qualifications of employees. However, the rhetoric identity-neutral justice is opposed doctrine identity < coloured < real justice. This doctrine shows that the conventional discourse of individual rights is not able to solve the problem of non-discrimination guarantees.
One of the most important commitments in respect of act of discrimination is the study of the list of proof that can be used before domestic courts of European countries. Special attention has been focused on indirect evidence, which include statistics. The European system for protection of Human Rights is incomplete without special determination of the social groups that are most vulnerable with racism and religious discrimination. Minority groups that share according to status include nationals, migrants, refugees and Asylum seekers. In the marginalized groups that are allocated for its special characteristics include Roma, Muslim, black, Chinese, Vietnamese, etc.
The European Convention for the Protection of Human Rights, in particular Protocol No. 12, and the Treaty establishing the European Communities, the Directive Council of Ministers 2000/43/EC and 2000/78/EC, provides adequate protection against discrimination in relation other international documents on human rights. However, this system of protection is not the most successful of its kind in the world. Canadian-American system of protection against racial and religious discrimination is still the most successful system of this kind in the world. EC directives have adopted procedures for combating racial and religious discrimination, which have long developed in practice in Canada and the United States. Although, it is an important model of modern anti-diskrimination legislation in Europe, this does not mean that the experiences of these countries can be fully and uniformly applied in European countries. There are differences in legal traditions of individual European countries. However, it is important that the member states of European Union that have adopted comprehensive anti-discrimination legislation, accepted the obligation supranational judicial control of respect of non-discrimination imposed EC directives. Enactment of this legislation is in contradiction with the individualistic concept of law.
On the weakness implementation of the non-discrimination guarantees, in addition to the objective difficulty of imperfections of the legal text, there are prejudices arising because of different racial, national, ethnic, religious, cultural, political and ideological characteristics of the population in any state.
Finally, after receipt of the Council of Europe and the ratification of the European Convention for the protection of human rights and freedoms in Bosnia and Herzegovina, should be as, complete as possible, exploit the great advantages and opportunities that provides EC directives, although Bosnia and Herzegovina has not yet become EU member state. This advantage should be used especially by making a comprehensive anti-diskrimination legislation of Bosnia and Herzegovina as a basic presumption for all the other deeper and the most complex changes in the sphere of legal, economic and social development. The obligation that guarantee a comprehensive prohibition of discrimination certainly belongs to the state of Bosnia and Herzegovina, as it is, after all, the case with all other member states of Council of Europe and the European Union. In this way, Bosnia and Herzegovina acquires one of the conditions that the European Union is required for admission to its membership. And, since the European Union is primarily economic supranational organization, it is as a basic condition for the receipt of its membership expires specific economic demands, and these requirements can not be successfully meet if the state violates the prohibition of racial and religious discrimination. This of course does not mean that, in the European Union member states with a long democratic tradition and rule of law, no reported difficulties in the protection of various forms of discrimination, regardless of the established mechanisms of legal remedies represent an attractive novelty in the European system of protection and preservation of non-discrimination guarantees .
In Bosnia and Herzegovina there should be applied the most acceptable means that will enable a state and entity authorities to make available adequate and effective remedy for the achievement of the required rights or rights to fair compensation to the victims of discrimination. Also, it is necessary to establish the competent coordinating authority of Bosnia and Herzegovina for entity policy harmonization in the combat against discrimination.
State institutions of Bosnia and Herzegovina are inefficient, irrational, incompetent, dependent from political influence. Courts often require high standards for proving acts of discrimination, and are expected to be a great help and support institutions of the Council of Europe and the European Union. Bosnia and Herzegovina will successfully solve the problem of non-discrimination, when the protection of the guarantees is "cleansed" of its political dimensions.
Key words: racial discrimination, religious discrimination, affirmative action, positive discrimination, European Court of Human Rights, European Court of Justice, margin of appreciation doctrine, anti-discrimination legislation.