Page - 280 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Wolfgang Benedek 280 addressed by the Special Chamber, which amounts to an invocation of a violation of Article 14 ECHR on prohibition of discrimination in conjunction with Article 6 on the right to a fair trial. Furthermore, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 to the ECHR were to be considered. On June 9, 2011 the HRAP, after asking the SRSG for his cooperation on KTA files and his comments, declared the complaint partly admissible. Entering into the merits of the case, the HRAP asked the SRSG for the observations of UNMIK. Of particular interest is the SRSG’s view that Article 14 would not apply to this case because of its accessory nature and because it could not be invoked in employment-related matters, while Article 6 was considered not to have been violated. The panel went to some length to review that argument drawing heavily on the jurisprudence of the European Court of Human Rights (ECtHR), starting from the “Belgian linguistics” case of 1968, which only requires that the violation falls within the provisions of the ECHR, in this case Article 6.13 The main issue in the discussion on the merits of the case was whether the proceedings of the Special Chamber met the requirements of Article 14 ECHR in conjunction with Article 6. Again the HRAP referred to the jurisprudence of the ECtHR to clarify the meaning of the concept of “indirect discrimination”, which accordingly may result from a de facto situation,14 in cases of ethnic dis- crimination, because of its invidious nature, requires “special vigilance and a vigorous reaction” by the authorities,15 and which applies the principle of reversal of proof in cases of alleged ethnic discrimination,16 which was also to be found in the Kosovo Anti-Discrimination Law. The Panel noted that the Special Chamber did not specify why it found the facts indicated by the complainant as insufficient for a prima facie case of discrimination. However, in the concrete circumstances, a more detailed demonstration of the discrimination would have placed an unjustified burden on a great number of members of minority communities.17 It observed the different attitude of the Special Chamber in the case of the privatization of the company “Termostan” in 2004, where it had accepted the argument of former Serb employees that the security situation from early 2000 onwards prevented them from coming to work as a “matter of common knowledge” not requiring further proof, and had found that their dismissal had been discriminatory,18 an approach, which was also taken in another case of 2006. Accordingly, the HRAP found divergences in the case law of the Special Chamber, which, in the absence of satisfactory explanation, compromised the prin- ciple of legal certainty.19 Furthermore, the Panel considered that the Special Chamber did not adequately take the particular situation of the complainant as a member of an ethnic community, whose persecution in the aftermaths of the conflict was a matter of common knowledge, into account.20 The Special Chamber had acted in a discriminatory way also by its failure to reverse the burden of proof as required by Article 8 of the Anti-Discrimination Law. The SRSG had not rebutted the prima facie case of discrimination. In conclusion, the Panel found a violation of Article 14 in conjunction with 13 Fillim Guga v. UNMIK, Case No. 47/08, 24. January 2014, HRAP (Opinion), paras. 56–60, http://www.unmikonline.org/ hrap/Eng/Cases%20Eng/OP_47-08_ENG.pdf (last visited Aug. 21, 2015). 14 D.H. and others v. Czech Republic [GC], no. 57325/00, 13. November 2007, ECtHR, para. 175. 15 Horváth and Kiss v. Hungary , no. 11146/11, 29. January 2013, ECtHR, para. 101. 16 D.H. and others v. Czech Republic, ECtHR, paras. 176–177. 17 See Fillim Guga v. UNMIK, HRAP, para. 76. 18 Fillim Guga v. UNMIK, HRAP, para. 70. 19 Fillim Guga v. UNMIK, HRAP, para. 74. 20 Fillim Guga v. UNMIK, HRAP, para. 81.