FOURTH SECTION
CASE OF STANKOVIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 11103/23)
JUDGMENT
Art 1 P12 • General prohibition of discrimination • No discrimination between self-employed persons and employees in relation to the right to salary compensation during periods of temporary incapacity to work under the domestic legal framework in force at the material time • Applicant, a self‑employed insured person, not in a relatively similar situation to that of insured employees
Prepared by the Registry. Does not bind the Court.
STRASBOURG
19 May 2026
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stanković v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lado Chanturia, President,
Lorraine Schembri Orland,
Faris Vehabović,
Anja Seibert-Fohr,
Ana Maria Guerra Martins,
Anne Louise Bormann,
András Jakab, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 11103/23) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of Bosnia and Herzegovina, Ms Dragana Stanković (“the applicant”), on 28 February 2023;
the decision to give notice to the Government of Bosnia and Herzegovina (“the Government”) of the application;
the decision to grant the applicant leave to present her own case under Rule 36 § 2 in fine of the Rules of Court; and
the parties’ observations;
Having deliberated in private on 10 February and 28 April 2026,
Delivers the following judgment, which was adopted on that last-mentioned date:
INTRODUCTION
1. The application concerns allegations of discrimination between individuals in liberal professions and those employed under an employment contract with regard to the allocation of healthcare benefits during periods of temporary incapacity to work. It raises issues under Article 1 of Protocol No. 12 to the Convention and Article 14 of the Convention taken in conjunction with Article 8.
2. The applicant was born in 1986 and lives in Banja Luka.
3. The Government were represented by their acting Agent, Mr A. Hasanefendić.
4. The facts of the case may be summarised as follows.
5. The applicant is a self‑employed lawyer. She was affiliated to the compulsory health insurance scheme operated by the Republika Srpska Health Insurance Fund (“the Fund”), as regulated by the Health Insurance Act and the Contributions Act (see paragraphs 11 and 15 below).
6. On 16 August 2019, during her pregnancy‑related sick leave, the applicant submitted a request to the Fund under the Health Insurance Act, seeking compensation for her salary during a period of temporary incapacity to work from 1 May to 4 July 2019 in the amount of 1,401.18 convertible marks (BAM – approximately 717 euros (EUR)).
7. On 18 September 2019 the Fund found that the applicant, as a self‑employed insured person, had not been entitled to compensation for her salary during the period of temporary incapacity to work because only insured employees were entitled to that benefit (section 31 of the Health Insurance Act; see paragraph 11 below). On 2 December 2019 the second‑instance administrative body upheld that decision.
8. On 10 November 2020, in judicial review proceedings, the Banja Luka District Court upheld the refusal of the applicant’s request.
9. On 8 January 2021 the applicant lodged a constitutional appeal, alleging a violation of her rights under Articles 13 and 14 of the Convention and Article 1 of Protocol No. 12. She also raised complaints under several provisions of the International Covenant on Economic, Social and Cultural Rights, in particular Article 10 (protection of the family).
10. On 18 October 2022 the Constitutional Court held that the applicant had not been subjected to discrimination in the enjoyment of her rights and rejected the remainder of her complaints as manifestly ill‑founded. In its assessment of the discrimination complaint under Article 1 of Protocol No. 12 to the Convention, the Constitutional Court found that the applicant’s circumstances were not analogous, or relevantly similar, to those of insured employees in so far as the two groups concerned had different rights and obligations. Moreover, although the rate of health insurance contributions was uniformly set at 10.2% for all insured persons, the basis for calculating contributions differed. For employed individuals, contributions were assessed on the basis of their total taxable income, whereas for self‑employed persons, the contribution basis was set at a minimum amount equivalent to the average gross salary in the Republika Srpska for the preceding year (see paragraph 15 below). In the light of that difference and the margin of appreciation accorded to States in the field of social rights, the Constitutional Court concluded that the applicant had not been subjected to discriminatory treatment. The Constitutional Court’s decision was served on the applicant on 31 October 2022.
11. Persons employed under an employment contract and those in liberal professions were both affiliated to the compulsory health insurance scheme under the Health Insurance Act 1999 (Zakon o zdravstvenom osiguranju, Official Gazette of the Republika Srpska (“OG RS”) nos. 18/99, 51/01, 51/03, 57/03, 17/08, 1/09, 106/09, 39/16, 110/16, 94/19, 44/20 and 37/22).
12. The relevant provisions of the Act read as follows:
Section 2
“All citizens of the Republika Srpska, as well as other persons in accordance with the law, shall be covered by compulsory health insurance.”
Section 4
“Rights arising from health insurance shall include:
- healthcare;
- compensation for salary during periods of temporary incapacity to work; and
- other rights established by law and by the Fund’s regulations.
...”
Section 10
“Persons who are subject to compulsory health insurance under this Act (‘insured persons’) shall include:
(1) persons employed under an employment contract (‘insured employees’);
...
(3) persons who independently perform an economic or professional activity;
...”
Section 31
“The right to compensation for net salary during periods of temporary incapacity to work shall be granted to insured employees working in State and private enterprises and institutions.
Salary compensation in respect of the first 30 days of temporary incapacity to work shall be provided by the employer from its own funds, and from the 30th day – up to a maximum of 12 months – net salary compensation shall be provided by the Fund.”
Section 32
“The basis for calculating salary compensation during a period of temporary incapacity to work shall be the net salary that the employee would have earned if he or she had been working, but the amount cannot be higher than the net salary taken as the basis for calculating and paying health insurance contributions.”
Section 33
“Salary compensation during a period of temporary incapacity to work shall be set at no less than 70% of the basis for compensation set out in the previous section, and may not exceed 90% of the salary that the insured person would have earned if he or she had been working.”
Section 34
“The Fund shall, through its own internal instruments, regulate in more detail the method for determining the net salary compensation payable by the Fund, and other matters related to such compensation.
General instruments of State‑owned enterprises, private companies and institutions shall regulate in more detail matters related to salary compensation payable by the employer.”
Section 35
“Salary compensation shall be payable to insured persons, in accordance with the provisions of this Act, in the following circumstances:
(1) if they temporarily lack capacity to work owing to illness or injury;
(2) if they are unable to perform work duties on account of undergoing medical examinations;
(3) if they are placed in isolation as carriers of infection or on account of the occurrence of an infectious disease in their surroundings;
(4) if they are designated to provide care for a sick member of their immediate family, under the conditions prescribed by this Act or by an instrument of the Fund;
(5) if they are unable to work owing to the voluntary donation of tissue or organs.”
13. The term “insured employee”, within the meaning of the Act, covered both State employees and private‑sector employees, while a self‑employed insured person was defined as any craft worker, hospitality provider, carrier or other person engaged in a business duly registered in accordance with the applicable regulations (sections 11 and 12 of the Act).
14. On 29 September 2022 a new Health Insurance Act 2022 entered into force (OG RS nos. 93/22 and 132/22) and replaced the old Act. The new Act establishes a right to salary compensation during periods of temporary incapacity to work for both insured employees and self‑employed insured individuals without distinction. The relevant sections read as follows:
Section 2
“...
In the process of exercising rights under the compulsory health insurance scheme, all insured persons shall be treated equally, regardless of race, sex, language, national affiliation, religion, social origin, birth, education, property status, political or other beliefs, social position, or any other personal characteristic.”
Section 72
“...
Temporary incapacity to work for persons who perform an economic, entrepreneurial or professional activity as their main occupation, within the meaning of this Act, shall be deemed to exist in the event of:
- illness;
- injury sustained outside of work;
- undergoing medical examinations;
- caring for a sick immediate family member;
- occupational disease;
- work‑related injury;
- implementation of a prescribed measure of mandatory isolation as carriers of infection or on account of the occurrence of an infectious disease in their surroundings;
- voluntary donation of organs or tissues;
- illness or complications related to pregnancy ...”
Section 82
“During a period of temporary incapacity to work ... salary compensation shall be provided to insured employees, and compensation to insured persons engaged in economic, entrepreneurial or professional activity, in accordance with this Act.”
Section 83
“The basis for calculating the compensation under section 82 of this Act shall be the average gross salary that the insured person would have earned had he or she been working during the six months preceding the month in respect of which the calculation is made.
...
The calculation and payment of the compensation referred to in section 82 of this Act shall be carried out by the employer applying the following percentages of the calculation basis:
(1) illness or complications related to pregnancy ..., as established by the findings and opinion of a specialist in gynaecology and obstetrics with whom the woman is registered in accordance with the regulations governing healthcare, or by the findings and opinion of a specialist in gynaecology and obstetrics from a secondary or tertiary health institution in the Republika – 100%;
(2) malignant disease and caring for a child suffering from a malignant disease – 100%;
(3) voluntary donation of organs, tissues or cells – 100%;
(4) implementation of a prescribed measure of mandatory isolation as a carrier of infection or on account of the occurrence of an infectious disease in in the person’s surroundings, in accordance with the regulations governing the protection of the population from infectious diseases – 90%;
(5) illness, injury, medical examination, and caring for a sick immediate family member, except in the case referred to in point 2 of this subsection – 70%.
...”
Section 86
“Compensation shall be provided from the funds of the compulsory health insurance scheme to persons engaged in economic, entrepreneurial or professional activity from the 31st day of incapacity if the period of incapacity to work continues uninterrupted for more than 30 days, provided that such economic, entrepreneurial or professional activity constitutes their main occupation and that the continuation of the activity ensures the uninterrupted payment of all obligations arising from contributions to the compulsory health insurance scheme.
...
The compensation referred to in subsection 1 of this section shall be provided on the basis of the percentage determined in accordance with section 83, subsection 1, of this Act, in relation to the prescribed basis on which, pursuant to the regulations governing contributions, the contribution to the compulsory health insurance scheme is assessed and paid. In any calendar year, compulsory health insurance funds may be used to provide payment of the prescribed compensation for a period of uninterrupted incapacity to work not exceeding 11 months.
...
The work performed by an employee who is employed or otherwise engaged by a person referred to in subsection 1 of this section shall not affect the employee’s entitlement to compensation during a period of incapacity to work.”
Section 88
“If the cause of the temporary incapacity to work is illness or complications related to pregnancy, 70% of the contribution basis shall be provided from compulsory health insurance funds, while the remaining 30% shall be co‑financed from the budget of the Republika ...”
15. The Contributions Act 2017 (Zakon o doprinosima, OG RS nos. 114/17, 112/19, 49/21, 119/21, 56/22, 132/22, 112/23 and 110/24), regulates the system of mandatory contributions for financing pension and disability insurance, health insurance, unemployment insurance and childcare. The contributors to this system include, inter alia, individuals residing in the Republika Srpska who independently engage in economic or professional activities (section 3 of the Act).
The relevant provisions read as follows:
Section 10
“The contribution basis [for insured employees] shall be their total taxable income ...”
Section 11
“...
For self‑employed persons, the contribution basis shall be at least equal to the average gross salary in the Republika Srpska for the preceding year, according to the most recent data of the ... Statistical Office published in the Official Gazette of the Republika Srpska ...”
16. The average gross salary in the Republika Srpska for 2018 was BAM 1,358 (approximately EUR 700). The health insurance contribution rate is set at 10.2% for all insured persons (section 22 of the Act). The health insurance contributions for employees are paid by their employer, whereas self‑employed persons pay their own contributions.
17. An employee is entitled to a salary, compensation for salary during absence from work, and other remuneration as established by law, collective agreement, general instrument and/or employment contract (sections 12 and 129 of the Labour Act (Zakon o radu, OG RS nos. 1/16, 66/18, 91/21 and 119/21)).
ALLEGED VIOLATION OF ARTICLE 1 of protocol No. 12 to the conventioN
18. The applicant complained that she had been discriminated against, as a self‑employed person, on account of the refusal of her request for compensation for her salary during a period of temporary incapacity to work as a result of pregnancy, in breach of Article 1 of Protocol No. 12 to the Convention and Article 14 read in conjunction with Article 8 of the Convention.
19. Notice of this complaint was given to the Government under Article 14 read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 12.
20. Having regard to the substance of the applicant’s complaint and the relevant context, however, the Court, which is the master of the characterisation to be given in law to the facts of any case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), finds it appropriate to examine this complaint from the standpoint of Article 1 of Protocol No. 12 to the Convention alone (see, mutatis mutandis, Negovanović and Others v. Serbia, nos. 29907/16 and 3 others, § 47, 25 January 2022). That provision reads as follows:
“1. 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.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
21. While the Government did not raise an objection as to the applicability of Article 1 of Protocol No. 12, the Court considers that it has to address this issue of its own motion (see Pinkas and Others v. Bosnia and Herzegovina, no. 8701/21, § 51, 4 October 2022).
22. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 extends the scope of protection to “any right set forth by law”. It thus introduces a general prohibition on discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019).
23. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report to Protocol No. 12, the scope of protection of Article 1 concerns four categories of cases where a person is discriminated against:
“i. in the enjoyment of any right specifically granted to an individual under national law;
ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;
iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);
iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”
The Explanatory Report further clarifies the following:
“... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear‑cut and that domestic legal systems may have different approaches as to which case comes under which category.”
24. Accordingly, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicant’s complaint falls within one of the four categories mentioned in the Explanatory Report (see ibid., § 105).
25. In this connection, the Court notes that in the present case the discrimination complaint concerns a “right set forth by law”, namely, the right to compensation for salary during periods of temporary incapacity to work (see paragraph 12 above, and section 31 of the Health Insurance Act). Consequently, the Court cannot but conclude that, for the purpose of the applicability of Article 1 of Protocol No. 12 to the Convention, the applicant’s complaint falls under category (i) of potential discrimination as referred to in the Explanatory Report (see paragraph 23 above).
26. The Court notes that the applicant’s complaint is not manifestly ill‑founded, nor is it inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
27. The applicant maintained that she had been discriminated against on the basis of her professional status as a self‑employed person. She argued that, as a self‑employed lawyer, she had been obliged to pay monthly contributions based on the average gross salary in the Republika Srpska, regardless of her actual earnings, which could have been lower, and that, despite making regular contributions, she had been denied entitlement to one of the two fundamental benefits guaranteed by the Health Insurance Act 1999.
28. The Government maintained that the rights and obligations of employed persons were regulated by the Labour Act while the rights and duties of persons engaged in liberal professions were regulated by the relevant lex specialis – that is, in the applicant’s case, the Bar Association Act. Moreover, health insurance contributions for employees were linked to their salary and paid by their employer. For those engaged in a liberal profession, however, such as the applicant, the State had established a different contribution basis, taking into account the fact that such individuals were engaged in the market in different ways with the aim of generating profit. For those reasons, the Government argued that the applicant’s situation and that of insured employees could not be considered similar.
29. Notwithstanding the difference in scope between the two Articles, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 of the Convention (see paragraph 18 of the Explanatory Report to Protocol No. 12). Accordingly, in applying the same term under Article 1 of Protocol No. 12, the Court sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55, and Napotnik v. Romania, no. 33139/13, § 70, 20 October 2020).
30. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not mean that the comparator groups have to be identical. For the purposes of Article 14, a difference in 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 aim sought to be realised (see Molla Sali v. Greece [GC], no. 20452/14, §§ 133 and 135, 19 December 2018). The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Biao v. Denmark [GC], no. 38590/10, § 90, 24 May 2016).
31. The Court has also established in its case‑law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). However, the list set out in Article 14 is illustrative and not exhaustive (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 70, ECHR 2010). The words “other status” (and a fortiori the French “toute autre situation”) have generally been given a wide meaning and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherently linked to the identity or the personality of the individual (see Clift v. the United Kingdom, no. 7205/07, §§ 55-59, 13 July 2010). The Court has thus found that the holding, or otherwise, of high office (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 115, 25 October 2011), police rank (see Beeckman and Others v. Belgium (dec.), no. 34952/07, § 24, 18 September 2018) or, in some circumstances, military rank (see Engel and Others v. the Netherlands, 8 June 1976, § 72, Series A no. 22) can be regarded as “other status” for the purposes of Article 14.
32. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy, for example (see Fábián, cited above, § 115). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Carson and Others, cited above, § 61). Any measures taken on such grounds, including the reduction of the amount of pension normally payable to the qualifying population, must nevertheless be implemented in a non‑discriminatory manner and comply with the requirements of proportionality (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 55-65, ECHR 2006-VI). In any event, irrespective of the scope of the State’s margin of appreciation, the final decision as to the observance of the Convention’s requirements rests with the Court (see Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 (extracts)).
33. Turning to the present case, the Court notes that the applicant’s complaint concerns the difference in treatment under the Health Insurance Act 1999, which was in force at the material time, between self‑employed persons and employees in relation to the right to compensation for salary during periods of temporary incapacity to work. The applicant claimed access to that benefit in respect of a period of pregnancy‑related sick leave during which she had been unable to work. As noted above, the right in question could be claimed on various grounds and was not specifically linked to pregnancy (see paragraph 11 above). Accordingly, the Court finds that, in the applicant’s case, the difference in treatment was based on “other status” within the meaning of Article 1 of Protocol No. 12 to the Convention.
34. What remains to be determined is whether the applicant, as a self‑employed person, was in a situation comparable to that of employees in relation to the benefit at issue. The Court notes at the outset, as argued by the Government and the Constitutional Court (see paragraphs 10 above), that these two groups have distinct rights and obligations governed by different legislation. Moreover, the benefit in question concerns compensation for “salary”, whereas self‑employed persons do not receive a salary; they generate income from their own work and, where applicable, from the work of their employees, which depends on the level of their economic activity.
35. By contrast, employees are expressly entitled to a salary and to compensation for their salary during periods of absence from work under the Labour Act (see paragraph 17 above). Their health insurance contributions are calculated on the basis of their net salary – that is, what they actually earn. In the event of temporary incapacity to work, employees are entitled to salary compensation on the basis of the net salary they would have earned if they had been working. Moreover, for the first 30 days of absence, such compensation is paid by the employer. Self-employed persons, having no employer, must therefore bear that initial period themselves.
36. Accordingly, although self‑employed persons, like the applicant, and employees are both affiliated to the compulsory health insurance scheme, the basis on which their contributions are calculated differs, which places them in materially different situations. As noted above, the State enjoys a wide margin of appreciation in adopting general measures of economic or social policy (see paragraph 32 above). The Court further observes that this issue has been examined in a convincing and comprehensive manner by the Constitutional Court (see paragraph 10 above).
37. Lastly, the Court notes that the new Health Insurance Act introduced in 2022 establishes a right to salary compensation during periods of temporary incapacity to work for both insured employees and self‑employed insured individuals without distinction. This does not, however, imply that the previous legal framework, which was in force at the material time, was incompatible with the requirements of the Convention (see, mutatis mutandis, Caamaño Valle v. Spain, no. 43564/17, § 68, 11 May 2021).
38. Taking all these aspects of the present case into account, the Court finds that the applicant has not demonstrated that, as a self‑employed insured person, she was in a relevantly similar situation to that of insured employees.
39. It follows that there has been no discrimination, and therefore no violation of Article 1 of Protocol No. 12 to the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY
Done in English, and notified in writing on 19 May 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Lado Chanturia
Registrar President