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SARAJEVO | The European Court of Human Rights ruled in late December that the Bosnian Constitution contains discriminatory and unlawful provisions after ethnic minority officials filed complaints in an attempt to remedy at least one aspect of the country’s institutional and constitutional absurdity.
Bosnian Jewish official Jakob Finci and Roma official Dervo Sejdic sued Bosnia and Herzegovina in 2006 to bring attention to the fact that the Bosnian Constitution allows only the three main constituent ethnic groups - Bosniaks, Bosnian Serbs, and Bosnian Croats - to run for the presidency or parliament.
The two complained that their bids to run had been rejected because they were not members of Bosnia's main ethnic groups.
The court found by a 14-3 vote that the exclusion of Jews, Roma, and other minorities in Bosnia and Herzegovina could not be justified and that the authorities must use all available means to combat racism.
"Eliminating the possibility for members of a minority to participate in the elections has no objective and reasonable justification. Therefore, it is in direct conflict with the European Convention on Human Rights, which prohibits discrimination," the Strasbourg-based court’s statement said.
In the lawsuit, Finci, the Bosnian ambassador to Switzerland and the leader of Bosnian Jewish community, presented a letter from the Bosnian Central Election Commission stating that he is ineligible to run for the presidency or parliament because he is Jewish.
“On 3 January 2007 [Finci] received written confirmation from the election commission that he was ineligible to stand in such elections because of his Jewish origin," the judges said. The commission refrained from elaborating further on the issue for ISN Security Watch, with the public relations office saying only that the commission’s work was regulated by election law.
Sejdic, a Bosnian Roma Union activist, told ISN Security Watch that he had no personal motivation for filing the lawsuit against Bosnia, as he has no intention of running for office, but wished simply to address these injustices and clear the path for minorities in the future to take part in the country’s government.
“It has been confirmed that our constitution and electoral system are not in line with the European Human Rights Convention, and this has been the situation for the past 15 years. It is now up to authorities to correct it. This verdict is against Bosnia and Herzegovina, but it is actually for its own good,” Sejdic said.
The verdict is the first time that the Human Rights Court has found a violation under the European Convention's Protocol No. 12, which prohibits discrimination.
Fadila Memisevic, president of the Bosnian branch of the Germany-based Society for Threatened Peoples, said the court’s decision represented a first step in removing the apartheid established in the country’s constitution, created under the 1995 Dayton peace deal, which ended the war in Bosnia.
“The Bosnian Constitution, written in a hurry, has to be changed in order to prevent further discrimination. The point is that in Bosnia and Herzegovina not only minorities have been discriminated against but actually all ethnic groups,” Memisevic said.
Under the Bosnian Constitution, the country’s tripartite presidency consists of one Bosnian Serb, one Bosniak, and one Bosnian Croat. The president and two vice presidents in the two entities (the Bosniak and Bosnian Croat-dominated Federation and the Bosnian Serb-dominated Republika Srpska) are elected on a similar basis, and similar arrangements apply to other senior appointments, the object being to ensure equal representation of the three main constituent peoples.
But the same arrangements preclude those citizens who are not Serb, Bosniak, or Croat from being elected. The constitution also discriminates against Bosnian Serbs in the Federation entity and Bosniaks and Bosnian Croats in Republika Srpska.
The country’s constitution and electoral law state that only members of the three constituent ethnic groups are eligible to stand for election for the tripartite presidency or the House of Peoples of the Parliamentary Assembly. Those who do not declare themselves as Bosniak, Bosnian Serb, or Bosnian Croat are defined in the constitution as "Others," and denied the right to stand for election.
Acknowledging that the constitution was largely rushed in an attempt to keep the peace right after the 1992-1995 war, the court said that the discriminatory provisions must be removed. The decision obliges Bosnian officials to reform the constitution in order to enable other ethnic groups to put forth electoral candidates.
“The court acknowledged that this system, put in place at a time when a fragile cease-fire had been accepted by all the parties to the interethnic conflict that had deeply affected the country, pursued the legitimate aim of restoring peace,” the court said.
It noted, however, that the situation in Bosnia and Herzegovina had improved considerably since the Dayton peace agreement and the adoption of the constitution, “as [attested to] by the fact that the closure of the international administration of the country was now being envisaged,” the court said in the verdict.
That said, actually realizing the court’s order will be challenging.
Some five years ago, the international community launched a campaign to reform the country’s constitution, stressing the need to make state institutions more effective and to meet the criteria for EU and NATO integration.
Talks to that end are ongoing, but progress has stalled. The Bosnian state government, under international pressure, launched constitutional reforms in 2005, but they failed miserably. Since then, the reform process has halted and the international community has largely withdrawn from the talks.
In October, senior U.S. and EU officials presented a package of proposed constitutional changes to Bosnia's most influential leaders in Sarajevo. For some, the measures were too drastic; for others, too cosmetic. The new proposal, dubbed Dayton Two, included measures to end Bosnia's status as an international protectorate and to initiate constitutional changes to help make it a credible EU and NATO candidate.
The international community’s proposed package contains measures to strengthen the role of the state-level parliament and government, to the detriment of entity authority. It also reforms what is a highly complicated institutional setup with veto rights and ‘ethnic’ and entity voting, which have been used frequently to block reforms.
But the fact is, the Bosnian Constitution must be changed if the country is ever to move out from under the protection of the international community and toward true sovereignty.
And it is no stretch of the imagination to predict that Bosnian authorities will fail to implement Strasbourg’s decision. This year is an election year, and there is no political will to introduce constitutional changes.
The recent past is indicative of the future. In 2008, when Bosnia and Herzegovina signed the Stabilization and Association Agreement with the EU, it pledged to reform its electoral law but failed to do so.
It has had other opportunities as well. In 2002, when the country joined the Council of Europe, its officials said they were committed to reviewing electoral legislation within one year but that never happened. As a result, Bosnia faces the possibility of being kicked out of the Council of Europe membership, which would be a first in the council’s history.
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