The Constitution of Bosnia and Herzegovina which is a peace agreement between Bosnia and Herzegovina, the Republic of Croatia and the former Federal Republic of Yugoslavia makes distinction between two categories of citizens: “constituent peoples”: Bosniaks, Croats and Serbs) on the one hand and “others” on the other: Jews, Roma and other national minorities together with those who do not declare themselves to be affiliated with any ethnic group. The constitution also states that the House of Peoples of the Parliamentary Assembly and the Presidency are composed only of citizens belonging to the three constituent peoples – excluding Jews and Roma as “others” national minorities. According to Article V of the Constitution, the Presidency of Bosnia and Herzegovina shall consist of one Bosniak, one Croat and one Serb. The House of Peoples of the Parliament of Bosnia and Herzegovina, according to Article IV of the Constitution, includes fifteen delegates, two-thirds from the Federation (that is five Croats and five Bosniaks) and one-third from the Republika Srpska (five Serbs).
The 1995 Dayton Peace Agreement neglected or considered this sort of discrimination towards the “others”, as unsubstantial. The reason was that making politicians (the representatives of the three constituent people) agree and sign the Dayton Peace Agreement was the priority in order to stop the war.
Now, fifteen years later, Bosnia and Herzegovina is being rightfully sued for discrimination towards national minorities. The European Court of Human Rights (ECHR) in Strasbourg delivered the Grand Chamber judgment in the case of Sejdic and Finci versus Bosnia and Herzegovina, condemning BiH of discrimination towards its national minorities.
The applicants were Mr. Finci who is a representative of the Jewish national minority and Mr. Sejdic who is a representative of the Roma national minority in the country. They are both prominent figures in the public national life. The applicants complained that despite possessing experience comparable to the highest elected officials, they were prevented by the Constitution of Bosnia and Herzegovina from fielding candidacies for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the grounds of their ethnic origin.
In 1996 the representative of the small Jewish community, Mr. Finci, pointed out to international officials that the right of election of the smaller national minorities like the Jews and the Roma people should have been protected under Articles IV and V of the Constitution. However, since Bosnia and Herzegovina was highly ethnically divided, a recovering and barely functioning state, questions about discrimination were never raised in any mainstream political circles except in the circles of national minorities which were subject to discrimination. The ratification by Bosnia and Herzegovina of Protocol 12 of the European Convention on Human Rights (2005) means that election to the Presidency and the House of Peoples of the Parliamentary Assembly, by democratic voting must be available to all citizens. Having this in mind, Mr. Finci, the representative of the Jewish national minority, wrote a letter to the Elections Commission about his intentions to apply both for the Presidency and the House of Peoples. The response was that he was unable to nominate himself due to his ethnic origin. The same response was given to the representative of the Roma national minority, Mr. Sejdic.
Both minority leaders submitted their complaints to the European Court of Human Rights in 2006. On 22 December, 2009 the ECHR announced its judgment. It reads: Prohibiting a Rom and a Jew from standing for election to the House of Peoples of the Parliamentary Assembly and for the State Presidency amounts to discrimination and breaches their electoral rights.
BiH is found guilty on a number of counts: violation of Article 14 (prohibition of discrimination) of the European Convention of Human Rights, together with Article 3 of Protocol No. 1 (right to free elections), and violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention.
The judgment came at the right time because it will leave enough space to make changes and design electoral rules ensuring appropriate representation for various groups before the elections in 2010.
After the judgment was announced none of the leaders of the three constituent peoples gave any response to it. The judgment did not cause any debates or shown any signs of will to make changes. Since 2010 is the election year in Bosnia and Herzegovina, it seems that the politicians are rather concerned about making their campaign successful than actually working together towards making Bosnia and Herzegovina a democratic state. Noticing this current political behaviour in BiH, the OSCE called upon the authorities to implement the ECHR decision against discrimination. The OSCE underlined the importance of the authorities using all available means to combat racism, thereby reinforcing the democratic vision of a society in which diversity is not perceived as a threat but as a source of enrichment.
Moreover, the ECHR indicated that: “there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities”. The OSCE also stated that it hopes that the authorities of BiH will fully respect this landmark decision together with other decisions by the European Court of Human Rights, as well as those of relevant domestic courts and that this decision will create a momentum for a meaningful debate on the necessary constitutional changes.
During the Butmir Process, BiH politicians did show political will to make changes in adjusting the Constitution with the European Convention on Human Rights which in a way is necessary for the national minorities to soon have the right to run for the Presidency and the House of Peoples of the Parliamentary Assembly.
It is now only a matter of time until the ECHR judgment gets implemented. Whether this will happen before the elections in October 2010 or after is yet to be seen. I personally doubt that the ECHR judgment will make any difference in Bosnia and Herzegovina even though its implementation would represent the first change of the Constitution in line with the European Convention on Human Rights.
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MA student
written by Dino Fazlic , January 21, 2010
this is a well-needed step foreword albeit a late one. since there are so many other things that seem to take priority on the political agenda, the issue at hand remains neglected.
great article. hope to read similar pieces from bosnia.