ĐORĐEVIĆ v. CROATIA JUDGMENT
45
application of Article 14 does not presuppose a breach of those provisions –
and to this extent it is autonomous – there can be no room for its application
unless the facts in issue fall within the ambit of one or more of the latter
(see, for example, Van Buitenen v. the Netherlands, no. 11775/85,
Commission decision of 2 March 1987, unreported, and Cha’are Shalom Ve
Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000-VII).
158. The Court has also held that even in a situation where the
substantive provision is not applicable, Article 14 may still be applicable
(see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 58,
9 December 2010). Consequently, admissibility issues concerning
Article 14 may be assessed separately.
159. As to the present case, the Court will examine under Article 14 the
issue of exhaustion of domestic remedies in relation to the Prevention of
Discrimination Act. In this connection the Court notes that it has already
examined the issue of exhaustion of domestic remedies as regards a
discrimination complaint separately from the exhaustion issues concerning
the main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04,
19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and
2041/05, §§ 104-08, 25 October 2011). This approach goes hand in hand
with the principle that where a substantive Article of the Convention or its
Protocols has been relied on both on its own and in conjunction with
Article 14 and a separate breach has been found of the substantive Article
the Court may not always consider it necessary to examine the case under
Article 14 as well, though the position is otherwise if a clear inequality of
treatment in the enjoyment of the right in question is a fundamental aspect
of the case (see Dudgeon, cited above, § 67; Chassagnou and Others, cited
above, § 89; and Timishev, cited above, § 53).
160. As regards the present case, the Court notes that the Prevention of
Discrimination Act contains specific reference to discrimination based on
health condition and invalidity, as well as on ethnic origin (see section 1 of
the Act). It provides for a range of remedies, including the acknowledgment
of discrimination, a ban on discriminatory acts and compensation for
damage. Remedies may also be used against the national authorities in the
event of their alleged failure to take action (see paragraph 74 above).
161. Protection against discrimination is to be sought before the ordinary
courts, and an appeal against the first-instance judgment is provided for, as
well as a constitutional complaint. The right not to be discriminated against
is also guaranteed by the Croatian Constitution, and the Convention is
directly applicable in Croatia. In order to comply with the principle of
subsidiarity, applicants, before bringing their complaints before the Court,
have first to afford the national courts the opportunity of remedying their
situation and addressing the issues they wish to bring before the Court.
162. Against the above background, the Court considers that an action
pursuant to the provisions of the Prevention of Discrimination Act