Case No.: CH/01/7952
Applicant: Suada SELIMOVIĆ and 7 others
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 11 January 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicants are eight former judges of the Supreme Court of the Federation of Bosnia and Herzegovina whose five-year term of office had expired in 2001. They were born between 1933 and 1937 and thus eligible for reappointment, as Federation judges may continue to serve until the mandatory retirement age of 70. The case concerns the decision by the House of Peoples of the Federation of Bosnia and Herzegovina not to approve the nomination by the President of the Federation for their re-appointment as judges to the Supreme Court. The applicants alleged that age was the decisive factor in the rejection of their re-appointment. They claim that the decision by the House of Peoples of the Federation of Bosnia and Herzegovina constitutes discrimination on the ground of age in the enjoyment of their right to public service in violation of Article 25(c) of the International Covenant on Civil and Political Rights ("ICCPR") in conjunction with Article II(2)(b) of the Human Rights Agreement.

Admissibility

The respondent Party did not object to the admissibility of the applications and, in fact, indicated that it was inclined to believe that the applicants had been discriminated against. Finding that no effective remedies were available to the applicants and thus that the question of non-exhaustion did not arise, the Chamber declared the applications admissible.

Merits

Article 25(c) of the ICCPR

Applying a three-step analysis to the discrimination claim, the Chamber first found that age was a prohibited discrimination basis covered under "other status" in Article 2 paragraph 1 of the ICCPR.

Second, the Chamber found that the applicants were, in fact, subjected to differential treatment based on their age. For this purpose, the Chamber looked at the transcript of the session of the House of Peoples, in which the applicants' appointment was voted on. It found that the speakers of both the Bosniac and the Croat Clubs in the House of Peoples had stated that judges aged 65 or more should not be re-appointed. These statements, coupled with the fact that all but one applicant were aged 65 or above, while none of the confirmed judges had reached the age of 65, led the Chamber to conclude that their age was the reason for the refusal to re-appoint the applicants.

Third, the Chamber examined whether differential treatment had any reasonable and objective justification, whether it pursued a legitimate aim and whether the means employed and aims sought were proportionally related. The Chamber noted that in the debate in the House of Peoples it had been stated that the courts of the Federation of Bosnia and Herzegovina were not working in a satisfactory way, and that renewing the composition of the Supreme Court could improve their performance. The Chamber found that this was a reasonable aim for the House of Peoples to pursue. However, the insistence on the "age structure", instead of an approach based on the assessment of merits, the Chamber observed, highlighted the unreasonableness of the criteria chosen. The Chamber found that the House of Peoples had failed to establish a reasonable relationship of proportionality between the aim pursued and the means adopted and concluded that the applicants had been discriminated against in the enjoyment of their right to have access on general terms of equality, to public service in their country.

Remedies

The Chamber ordered the Federation of Bosnia and Herzegovina to include the applicants in the current round of selection to fill vacancies on the Supreme Court, without requiring them to reapply or to be interviewed again. The Chamber rejected the applicants' claim for monetary compensation on the ground that its finding of discrimination constituted sufficient compensation for the moral damage suffered by the applicants.
Dissenting Opinions
Mr. Rona Aybay, joined by Mme. Michèle Picard and Messrs. Dietrich Rauschning and Viktor Masenko-Mavi, dissented in part, writing that the Chamber should not have found a violation of Article 25(c) of the ICCPR. Mr. Aybay argued that the question of whether some of the nominated judges who were over a certain age should or should not be approved and appointed by the House of Peoples was beyond the judicial review of any court unless serious procedural defects existed in the voting process. In reaching this conclusion, Mr. Aybay noted that a significant number of members of the House of Peoples did not take part in the decision, that the individual motives of all those who voted against the applicants could not be ascertained, and that the decisions of members of a parliamentary body should not be scrutinised or subjected to external pressures.

In a separate dissent, Mr. Victor Masenko-Mavi, joined by Mr. Dietrich Rauschning argued that Article 25(c) creates no entitlement to occupy a particular office. He pointed out that the applicants were not deprived of access to the public office, but instead were allowed to participate in the selection process up until its last stage. During this last stage, Mr. Masenko-Mavi argued, the House of Peoples used its legislative discretion properly to appoint other candidates of more suitable qualifications and age.

Mr. Mehmed Dekovic also dissented from the Chamber's conclusion that its finding of discrimination was sufficient to address the moral harm resulting from the violation. Mr. Dekovic instead concluded that monetary compensation was appropriate.

In a fourth dissenting opinion, Mr. Andrew Grotrian, joined by Mr. Jakob Möller, expressed the view that the House of Peoples was entitled to take the view that the imposition of an age threshold was an appropriate means of bringing new blood into the Supreme Court. Arguably, such an approach was preferable to the alternative suggested by the majority, namely an assessment of the judicial performance of the individual candidates. Mr. Grotrian did not consider a parliamentary body, such as the House of Peoples, well-equipped to conduct such an assessment which might carry the risk of unacceptable political interference with the judiciary. He was not satisfied, therefore, that the House of Peoples went beyond its margin of appreciation and would have found no violation of the Agreement.

Decision adopted 8 January 2002
Decision delivered 11 January 2002