Bosnia and Herzegovina - Racist Country In Need of International Help

Bosnia and Herzegovina is very clearly and legally confirmed racist country.

The European Commission against Racism and Intolerance (ECRI) is the Council of Europe’s independent human rights monitoring body specialised in combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance. In its general policy recommendation No. 7, adopted on 13 December 2002, ECRI defines racism as “the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons”.

Bosnia and Herzegovina is clearly racist country

Bosnia and Herzegovina is racist country by its constitution as it is proven in the judgment of the European Court of Human Rights in the case of Sejdić and Finci vs. Bosnia and Herzegovina.

These two great human rights activits, Mr. Sejdić and Finci, have earned Nobel prize for Peace. They have taken stand against the fascistic and racist constitution of Bosnia and Herzegovina and WON!

Long awaited official conclusion that discrimination in Bosnia and Herzegovina exists, finally has been published by European court for human rights.

What, by the education, average citizen in EU country knows by heart, is that all people are equal by the law, but in Bosnia and Herzegovina is the opposite.

Not just average citizen, but majority of citizens are absolutely convinced that racism and ethnic origin are of great importance for their future. Would they be friendly to each other, the sole idea of being for one’s nation would not be unnatural.

Bosnia is racist country

The European court for human rights clearly said that discrimination by ethnic origin is racism.

When thinking that some schools in Bosnia and Herzegovina are completely separated by the ethnic origin, we can observe that racism is the mainstream politics in Bosnia and Herzegovina.

Literacy is the key to awareness of the people. Now we have to ask: Where ARE the thinking people of Bosnia and Herzegovina?

There are many. Many are aware. But majority is illiterate, living in far away villages, and not being able to read and hear and understand their own biased TV station. Unspoken of Court rulings in regards to human rights.

And only small number of those who are aware, dare to speak. The result is degraded people under fascist and racism regime.

Bosnia is RACIST country. That is DE FACTO, confirmed.

Bosnia is country — country led by few, not by people. People are responsible to choose their leaders as they can turn-over the situation, but they don’t and it is not predictable when those Bosnian people would make the change.

Leaders and the government is RACIST and that has been shown in the court. When the constitution itself is RACIST, then their politicians are racist.

Of course that BOSNIA IS RACIST COUNTRY. Since the fall of communism major pathetic politicians knew how to separate the country based on ethnicity, they formed nationalist parties and segregated people based on their origins. That is RACISM by definition.

But people? People are just people. They want to live and work, they wanna have a normal life. If they cannot be responsible enough for their lives, food and cloths, how they can be in the situation to recognize who is who, which is the lamb and which is the wolf in sheep’s clothing. They do have responsibility, but overall, how can illiterate people make right decisions?!

Bosnian leadership is racist leadership. Every single name in Bosnian politics, including libertarian parties and any non-nationalist party is racist, as they do not and did not give a stand against the segregation and virtually all politicians did agree and still agree that Bosnia shall remain racist country.

The two people, which actually won against racist country Bosnia and Herzegovina, one Roma and other Jew, deserve the Nobel price for Peace.

We wish them all the best in their future!

Court judgment Sejdić and Finci vs. Bosnia and Herzegovina

GRAND CHAMBER
CASE OF SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA
(Applications nos. 27996/06 and 34836/06)
JUDGMENT
STRASBOURG
22 December 2009
This judgment is final but may be subject to editorial revision.
 
In the case of Sejdić and Finci v. Bosnia and Herzegovina,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa, President, 
 Christos Rozakis, 
 Nicolas Bratza, 
 Peer Lorenzen, 
 Françoise Tulkens, 
 Josep Casadevall, 
 Giovanni Bonello, 
 Lech Garlicki, 
 Khanlar Hajiyev, 
 Ljiljana Mijović, 
 Egbert Myjer, 
 David Thór Björgvinsson, 
 George Nicolaou, 
 Luis López Guerra, 
 Ledi Bianku, 
 Ann Power, 
 Mihai Poalelungi, judges, 
and Vincent Berger, Jurisconsult,
Having deliberated in private on 3 June and 25 November 2009,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE

1.  The case originated in two applications (nos. 27996/06 and 34836/06)
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 two citizens of Bosnia and Herzegovina, Mr
Dervo Sejdić and Mr Jakob Finci (“the applicants”), on 3 July and
18 August 2006 respectively.

2.  The applicants complained of their ineligibility to stand for election
to the House of Peoples and the Presidency of Bosnia and Herzegovina
on the ground of their Roma and Jewish origin. They invoked Articles 3,
13 and 14, Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12.

3.  The applications were allocated to the Fourth Section of the Court
(Rule 52 § 1 of the Rules of Court). On 11 March 2008 a Chamber
of that Section decided to give notice of the applications to the
Government. Under the provisions of Article 29 § 3 of the Convention,
it decided to examine the merits of the applications at the same time
as their admissibility. On 10 February 2009 the Chamber, composed of
the following judges: Nicolas Bratza, Lech Garlicki, Giovanni Bonello,
Ljiljana Mijović, David Thór Björgvinsson, Ledi Bianku and Mihai
Poalelungi, and also of Fatoş Aracı, Deputy Section Registrar,
relinquished jurisdiction in favour of the Grand Chamber, none of the
parties having objected to relinquishment (Article 30 of the Convention
and Rule 72). The composition of the Grand Chamber was determined
according to the provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24.

4.  The parties filed written observations on the admissibility
and merits. Third-party comments were also received from the Venice
Commission, the AIRE Centre and the Open Society Justice Initiative,
which had been given leave to intervene in the written procedure (Article
36 § 2 of the Convention and Rule 44 § 2).

5.  A hearing took place in public in the Human Rights Building,
Strasbourg, on 3 June 2009 (Rule 54 § 3). There appeared before the
Court:

(a)  for the Government 
Ms Z. IBRAHIMOVIĆ, Deputy Agent, 
Ms B. SKALONJIĆ Assistant Agent, 
Mr F. TURČINOVIĆ, Adviser;
(b)  for the applicants 
Mr F.J. LEON DIAZ, 
Ms S. P. ROSENBERG, 
Mr C. BALDWIN, Counsel.
The Court heard addresses by Ms Ibrahimović, Mr Leon Diaz, Ms Rosenberg and Mr Baldwin. The second applicant was also present at the hearing.
THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Relevant background to the present case

6.  The Constitution of Bosnia and Herzegovina (hereinafter referred
to as “the Constitution” or “the State Constitution” when it is
necessary to distinguish it from the Entity Constitutions) is an annex
to the General Framework Agreement for Peace in Bosnia and Herzegovina
(“the Dayton Peace Agreement”), initialled at Dayton on 21 November
1995 and signed in Paris on 14 December 1995. Since it was part of
a peace treaty, the Constitution was drafted and adopted without
the application of procedures which could have provided democratic
legitimacy. It constitutes the unique case of a constitution which
was never officially published in the official languages of the country
concerned but was agreed and published in a foreign language, English. The
Constitution confirmed the continuation of the legal existence of Bosnia
and Herzegovina as a State, while modifying its internal structure. In
accordance with the Constitution, Bosnia and Herzegovina consists of two
Entities: the Federation of Bosnia and Herzegovina and the Republika
Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity
Boundary Line in the Brčko area, but the parties agreed to a binding
arbitration in this regard (Article V of Annex 2 to the Dayton Peace
Agreement). Pursuant to an arbitral award of 5 March 1999, the Brčko
District has been created under the exclusive sovereignty of the State.

7.  In the Preamble to the Constitution, Bosniacs, Croats and Serbs are
described as “constituent peoples”. At the State level, power-sharing
arrangements were introduced, making it impossible to adopt decisions
against the will of the representatives of any “constituent people”,
including a vital interest veto, an Entity veto, a bicameral system
(with a House of Peoples composed of five Bosniacs and the same number
of Croats from the Federation of Bosnia and Herzegovina and five Serbs
from the Republika Srpska) as well as a collective Presidency of three
members with a Bosniac and a Croat from the Federation of Bosnia and
Herzegovina and a Serb from the Republika Srpska (for more details see
paragraphs 12 and 22 below).

B.  The present case

8.  The applicants were born in 1956 and 1943 respectively. They have
held and still hold prominent public positions. Mr Sejdić is now the Roma
Monitor of the OSCE Mission to Bosnia and Herzegovina, having previously
served as a member of the Roma Council of Bosnia and Herzegovina (the
highest representative body of the local Roma community) and a member of
the Advisory Committee for Roma (a joint body comprising representatives
of the local Roma community and of the relevant ministries). Mr Finci is
now serving as the Ambassador of Bosnia and Herzegovina to Switzerland,
having previously held positions that included being the President of
the Inter-Religious Council of Bosnia and Herzegovina and the Head of
the State Civil Service Agency.

9.  The applicants describe themselves to be of Roma and Jewish origin
respectively. Since they do not declare affiliation with any of the
“constituent peoples”, they are ineligible to stand for election
to the House of Peoples (the second chamber of the State parliament)
and the Presidency (the collective Head of State). Mr Finci obtained
official confirmation in this regard on 3 January 2007.

II.  RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE

A.  Dayton Peace Agreement

10.  The Dayton Peace Agreement, initialled at the Wright-Patterson
Air Force Base near Dayton (the United States) on 21 November 1995
and signed in Paris (France) on 14 December 1995, was the culmination
of some 44 months of intermittent negotiations under the auspices of
the International Conference on the former Yugoslavia and the Contact
Group. It entered into force on the latter date and contains twelve
Annexes.

1.  Annex 4 (the Constitution of Bosnia and Herzegovina)

11.  The Constitution makes a distinction between “constituent
peoples” (persons who declare affiliation with Bosniacs1, Croats
and Serbs) and “others” (members of ethnic minorities and persons
who do not declare affiliation with any particular group because of
intermarriage, mixed parenthood, or other reasons). In the former
Yugoslavia, a person's ethnic affiliation was decided solely by that
person, through a system of self-classification. Thus, no objective
criteria, such as knowledge of a certain language or belonging to a
specific religion were required. There was also no requirement of
acceptance by other members of the ethnic group in question. The
Constitution contains no provisions regarding the determination of
one's ethnicity: it appears that it was assumed that the traditional
self-classification would suffice.

12.  Only persons declaring affiliation with a “constituent people”
are entitled to run for the House of Peoples (the second chamber of the
State parliament) and the Presidency (the collective Head of State). The
following are the relevant provisions of the Constitution:

Article IV

“The Parliamentary Assembly shall have two chambers: the House of
Peoples and the House of Representatives.

1.  House of Peoples. The House of Peoples shall comprise 15 Delegates,
two-thirds from the Federation (including five Croats and five Bosniacs)
and one-third from the Republika Srpska (five Serbs).

a.  The designated Croat and Bosniac Delegates from the Federation shall
be selected, respectively, by the Croat and Bosniac Delegates to the
House of Peoples of the Federation2. Delegates from the Republika Srpska
shall be selected by the National Assembly of the Republika Srpska3.

b.  Nine members of the House of Peoples shall comprise a quorum,
provided that at least three Bosniac, three Croat, and three Serb
Delegates are present.

2.  House of Representatives. The House of Representatives shall comprise
42 Members, two-thirds elected from the territory of the Federation,
one-third from the territory of the Republika Srpska.

a.  Members of the House of Representatives shall be directly elected
from their Entity in accordance with an election law to be adopted by
the Parliamentary Assembly. The first election, however, shall take
place in accordance with Annex 3 to the General Framework Agreement.

b.  A majority of all members elected to the House of Representatives
shall comprise a quorum.

3.  Procedures.

a.  Each chamber shall be convened in Sarajevo not more than 30 days after its selection or election.

b.  Each chamber shall by majority vote adopt its internal rules and
select from its members one Serb, one Bosniac, and one Croat to serve as
its Chair and Deputy Chairs, with the position of Chair rotating among
the three persons selected.

c.  All legislation shall require the approval of both chambers.

d.  All decisions in both chambers shall be by majority of those present
and voting. The Delegates and Members shall make their best efforts to see
that the majority includes at least one-third of the votes of Delegates
or Members from the territory of each Entity. If a majority vote does not
include one-third of the votes of Delegates or Members from the territory
of each Entity, the Chair and Deputy Chairs shall meet as a commission
and attempt to obtain approval within three days of the vote. If those
efforts fail, decisions shall be taken by a majority of those present
and voting, provided that the dissenting votes do not include two-thirds
or more of the Delegates or Members elected from either Entity.

e.  A proposed decision of the Parliamentary Assembly may be declared to
be destructive of a vital interest of the Bosniac, Croat, or Serb people
by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates
selected in accordance with paragraph l (a) above. Such a proposed
decision shall require for approval in the House of Peoples a majority of
the Bosniac, of the Croat, and of the Serb Delegates present and voting.

f.  When a majority of the Bosniac, of the Croat, or of the Serb Delegates
objects to the invocation of paragraph (e), the Chair of the House of
Peoples shall immediately convene a Joint Commission comprising three
Delegates, one each selected by the Bosniac, by the Croat, and by the
Serb Delegates, to resolve the issue. If the Commission fails to do so
within five days, the matter will be referred to the Constitutional Court,
which shall in an expedited process review it for procedural regularity.

g.  The House of Peoples may be dissolved by the Presidency or by the
House itself, provided that the House's decision to dissolve is approved
by a majority that includes the majority of Delegates from at least two
of the Bosniac, Croat, or Serb peoples. The House of Peoples elected in
the first elections after the entry into force of this Constitution may
not, however, be dissolved.

h.  Decisions of the Parliamentary Assembly shall not take effect before publication.

i.  Both chambers shall publish a complete record of their deliberations
and shall, save in exceptional circumstances in accordance with their
rules, deliberate publicly.

j.  Delegates and Members shall not be held criminally or civilly
liable for any acts carried out within the scope of their duties in the
Parliamentary Assembly.

4.  Powers. The Parliamentary Assembly shall have responsibility for:

a.  Enacting legislation as necessary to implement decisions of the
Presidency or to carry out the responsibilities of the Assembly under
this Constitution.

b.  Deciding upon the sources and amounts of revenues for the operations
of the institutions of Bosnia and Herzegovina and international
obligations of Bosnia and Herzegovina.

c.  Approving a budget for the institutions of Bosnia and Herzegovina.

d.  Deciding whether to consent to the ratification of treaties.

e.  Such other matters as are necessary to carry out its duties or as
are assigned to it by mutual agreement of the Entities.”

Article V

“The Presidency of Bosnia and Herzegovina shall consist of three
Members: one Bosniac and one Croat, each directly elected from the
territory of the Federation, and one Serb directly elected from the
territory of the Republika Srpska.

 
1.  Election and Term.

a.  Members of the Presidency shall be directly elected in each Entity
(with each voter voting to fill one seat on the Presidency) in accordance
with an election law adopted by the Parliamentary Assembly. The first
election, however, shall take place in accordance with Annex 3 to the
General Framework Agreement. Any vacancy in the Presidency shall be
filled from the relevant Entity in accordance with a law to be adopted
by the Parliamentary Assembly.

b.  The term of the Members of the Presidency elected in the first
election shall be two years; the term of Members subsequently elected
shall be four years. Members shall be eligible to succeed themselves
once and shall thereafter be ineligible for four years.

2.  Procedures.

a.  The Presidency shall determine its own rules of procedure, which
shall provide for adequate notice of all meetings of the Presidency.

b.  The Members of the Presidency shall appoint from their Members a
Chair. For the first term of the Presidency, the Chair shall be the
Member who received the highest number of votes. Thereafter, the method
of selecting the Chair, by rotation or otherwise, shall be determined
by the Parliamentary Assembly, subject to Article IV § 3.

c.  The Presidency shall endeavor to adopt all Presidency Decisions
(i.e., those concerning matters arising under Article V § 3 (a)-(e))
by consensus. Such decisions may, subject to paragraph (d) below,
nevertheless be adopted by two Members when all efforts to reach consensus
have failed.

d.  A dissenting Member of the Presidency may declare a Presidency
Decision to be destructive of a vital interest of the Entity from
the territory from which he was elected, provided that he does so
within three days of its adoption. Such a Decision shall be referred
immediately to the National Assembly of the Republika Srpska, if the
declaration was made by the Member from that territory; to the Bosniac
Delegates of the House of Peoples of the Federation, if the declaration
was made by the Bosniac Member; or to the Croat Delegates of that body,
if the declaration was made by the Croat Member. If the declaration is
confirmed by a two-thirds vote of those persons within ten days of the
referral, the challenged Presidency Decision shall not take effect.

3.  Powers. The Presidency shall have responsibility for:

a.  Conducting the foreign policy of Bosnia and Herzegovina.

b.  Appointing ambassadors and other international representatives of
Bosnia and Herzegovina, no more than two-thirds of whom may be selected
from the territory of the Federation.

c.  Representing Bosnia and Herzegovina in international and European
organizations and institutions and seeking membership in such
organizations and institutions of which Bosnia and Herzegovina is not
a member.

d.  Negotiating, denouncing, and, with the consent of the Parliamentary
Assembly, ratifying treaties of Bosnia and Herzegovina.

e.  Executing decisions of the Parliamentary Assembly.

f.  Proposing, upon the recommendation of the Council of Ministers,
an annual budget to the Parliamentary Assembly.

g.  Reporting as requested, but not less than annually, to the
Parliamentary Assembly on expenditures by the Presidency.

h.  Coordinating as necessary with international and nongovernmental
organizations in Bosnia and Herzegovina.

i.  Performing such other functions as may be necessary to carry out
its duties, as may be assigned to it by the Parliamentary Assembly,
or as may be agreed by the Entities.”

13.  The constitutional arrangements contested in the present case
were not included in the Agreed Basic Principles which constituted the
basic outline for what the future Dayton Peace Agreement would contain
(see paragraphs 6.1 and 6.2 of the Further Agreed Basic Principles of
26 September 1995). Reportedly, the international mediators reluctantly
accepted these arrangements at a later stage because of strong demands
to this effect from some of the parties to the conflict (see Nystuen4,
Achieving Peace or Protecting Human Rights: Conflicts between Norms
Regarding Ethnic Discrimination in the Dayton Peace Agreement, Martinus
Nijhoff Publishers, 2005, p. 192, and O'Brien5, The Dayton Agreement
in Bosnia: Durable Cease-Fire, Permanent Negotiation, in Zartman
and Kremenyuk (eds), Peace versus Justice: Negotiating Forward- and
Backward-Looking Outcomes, Rowman & Littlefield Publishers, 2005, p. 105).

14.  Fully aware that these arrangements were most probably conflicting
with human rights, the international mediators considered it to be
especially important to make the Constitution a dynamic instrument
and provide for their possible phasing out. Article II § 2 of the
Constitution was therefore inserted (see Nystuen, cited above, p. 100). It
reads as follows:

“The rights and freedoms set forth in the European Convention for the
Protection of Human Rights and Fundamental Freedoms and its Protocols
shall apply directly in Bosnia and Herzegovina. These shall have priority
over all other law.”

While the Constitutional Court of Bosnia and Herzegovina, in decisions U
5/04 of 31 March 2006 and U 13/05 of 26 May 2006, held that the European
Convention on Human Rights did not have priority over the Constitution,
it came to a different conclusion in decision AP 2678/06 of 29 September
2006. In the latter decision, it examined a discrimination complaint
concerning the appellant's ineligibility to stand for election to
the Presidency on the ground of his ethnic origin (a Bosniac from the
Republika Srpska) and rejected it on the merits. The relevant part of
the majority opinion reads as follows (the translation has been provided
by the Constitutional Court):

“18. The appellants argue that their rights have been violated,
taking into account the fact that Article II § 2 of the Constitution of
Bosnia and Herzegovina stipulates that the rights and freedoms set forth
in the European Convention and its Protocols shall apply directly in
Bosnia and Herzegovina and that they shall have priority over all other
law. Therefore, the appellants are of the opinion that the candidacy of
Ilijaz Pilav for a member of the Presidency of Bosnia and Herzegovina
was rejected exclusively based on his national/ethnic origin in which
they see a violation of Article 1 of Protocol No. 12 to the European
Convention which guarantees that the enjoyment of any right set forth
by law shall be secured without discrimination and that no one shall be
discriminated against by any public authority on any ground including
the national/ethnic origin.


...

22. There is no dispute that the provision of Article V of the
Constitution of Bosnia and Herzegovina, as well as the provision of
Article 8 of the Election Act 2001 have a restrictive character in
a way that they restrict the rights of citizens with respect to the
candidacy of Bosniacs and Croats from the territory of the Republika
Srpska and the Serbs from the territory of the Federation of Bosnia and
Herzegovina to stand for election as members of the Presidency of Bosnia
and Herzegovina. However, the purpose of those provisions is strengthening
of the position of constituent peoples in order to secure that the
Presidency is composed of the representatives from amongst these three
constituent peoples. Taking into account the current situation in Bosnia
and Herzegovina, the restriction imposed by the Constitution and Election
Act 2001, which exist with respect to the appellants' rights in terms of
differential treatment of the appellant's candidacy in relation to the
candidacy of other candidates who are Serbs and are directly elected from
the territory of the Republika Srpska, is justified at this moment, since
there is a reasonable justification for such treatment. Therefore, given
the current situation in Bosnia and Herzegovina and specific nature of its
constitutional order as well as bearing in mind the current constitutional
and law arrangements, the challenged decisions of the Court of Bosnia
and Herzegovina and the Central Election Commission did not violate the
appellants' rights under Article 1 of Protocol No. 12 to the European
Convention and Article 25 of the International Covenant on Civil and
Political Rights since the mentioned decisions are not arbitrary and are
based on the law. It means that they serve a legitimate aim, that they
are reasonably justified and that they do not place an excessive burden
on the appellants given that the restrictions imposed on the appellants'
rights are proportional to the objectives of general community in terms
of preservation of the established peace, continuation of dialogue, and
consequently creation of conditions for amending the mentioned provisions
of the Constitution of Bosnia and Herzegovina and Election Act 2001.”


15.  As regards amendments to the Constitution, its Article X provides
as follows:

“1.  Amendment procedure. This Constitution may be amended by a decision
of the Parliamentary Assembly, including a two-thirds majority of those
present and voting in the House of Representatives.

2.  Human Rights and Fundamental Freedoms. No amendment to this
Constitution may eliminate or diminish any of the rights and freedoms
referred to in Article II of this Constitution or alter the present
paragraph.”

On 26 March 2009 the Parliamentary Assembly successfully amended
the Constitution for the first time, in accordance with the above
procedure. The amendment at issue concerned the status of the Brčko
District.

2.  Annex 10 (the Agreement on Civilian Implementation)

16.  The Agreement on Civilian Implementation outlines the mandate of the
High Representative – the international administrator for Bosnia and
Herzegovina, established with the authorisation of the United Nations
Security Council by an informal group of States actively involved
in the peace process (called the Peace Implementation Council) as an
enforcement measure under Chapter VII of the United Nations Charter
(see UNSC Resolution 1031 of 15 December 1995).

17.  It is well known that the High Representative's powers are
extensive (see Berić and Others v. Bosnia and Herzegovina (dec.),
nos. 36357/04 et {$company}., ECHR 2007-XII). On numerous
occasions, he has imposed ordinary legislation and has amended the
Entity Constitutions (the Entity Constitutions, as opposed to the State
Constitution, are not part of the Dayton Peace Agreement). Whether
the High Representative's powers also cover the State Constitution is,
however, less clear. The Dayton Peace Agreement is silent on this matter,
but an episode concerning a typing error in the State Constitution would
suggest a negative answer. Several months after the entry into force of
the Dayton Peace Agreement, some of the international lawyers who had
been present during the Dayton negotiations realised that a reference in
Article V § 2 (c) was wrong (the reference to Article III § 1 (a)-(e)
was meant to have been a reference to Article V § 3 (a)-(e)). In November
1996 the High Representative, Mr Bildt, wrote a letter to the United
States Secretary of State, Mr Christopher, and proposed to correct the
error by invoking Annex 10 to the Dayton Peace Agreement. Mr Christopher
considered that Mr Bildt's authority under Annex 10 did not extend to
the State Constitution (see the text of their correspondence in Nystuen,
cited above, pp. 80-81). Shortly thereafter, the error was corrected
without any formal decision: the High Representative simply informed the
Presidency of Bosnia and Herzegovina and published a corrected version
of the State Constitution. What is relevant to the present case is that
the official position of High Representatives has ever since been that
the State Constitution is beyond their reach. The speech by Lord Ashdown,
in his capacity as High Representative, to the Venice Commission confirms
this (see the Session Report from the 60th Plenary Session of the Venice
Commission, CDL-PV(2004)003 of 3 November 2004, p. 18). The relevant
part of his speech reads as follows:

“If Bosnia and Herzegovina wishes to join the EU and NATO it will
need a fully functioning state and nothing less. Bosnia and Herzegovina
political leaders are already beginning to realise that they face a
choice: to maintain the current constitution and pay the economic, social
and political consequences, or make the constitutional changes required to
make Bosnia and Herzegovina a stable, functional and prosperous country
within the European Union.

I do not believe that the people of Bosnia and Herzegovina will accept
that their constitution should be a barrier to their security and
prosperity.

However, we cannot remove that barrier for them.

It has consistently been the view of Peace Implementation Council and
successive High Representatives, including me, that, provided the Parties
observe Dayton – and there remains a question mark on this in respect
of Republika Srpska's compliance with The Hague, then the Constitution
of Bosnia and Herzegovina should be changed only by the prescribed
procedures by the Parliamentary Assembly of Bosnia and Herzegovina and
not by the International Community. In other words, that, provided Dayton
is observed, the powers of the High Representative begin and end with
the Dayton texts, and that any alteration to the Constitution enshrined
therein is a matter for the people of Bosnia and Herzegovina and their
elected representatives to consider.”

B.  Election Act 2001

18.  The Election Act 2001 (published in Official Gazette of Bosnia
and Herzegovina no. 23/01 of 19 September 2001, amendments published in
Official Gazette nos. 7/02 of 10 April 2002, 9/02 of 3 May 2002, 20/02
of 3 August 2002, 25/02 of 10 September 2002, 4/04 of 3 March 2004, 20/04
of 17 May 2004, 25/05 of 26 April 2005, 52/05 of 2 August 2005, 65/05 of
20 September 2005, 77/05 of 7 November 2005, 11/06 of 20 February 2006,
24/06 of 3 April 2006, 32/07 of 30 April 2007, 33/08 of 22 April 2008
and 37/08 of 7 May 2008) entered into force on 27 September 2001. The
relevant provisions of this Act provide:
Section 1.4 § 1

“Each citizen of Bosnia and Herzegovina who has attained eighteen (18)
years of age shall have the right to vote and to be elected pursuant to
this law.”

Section 4.8

“In order to be certified for the elections, an independent candidate
must present to the Central Election Commission his or her application
for participation in the elections, which is to contain at least:

1.  one thousand five hundred (1,500) signatures of registered voters for
elections for members of the Presidency of Bosnia and Herzegovina; ...”

Section 4.19 §§ 5 -7

“The list of candidates shall contain the name and surname of
every candidate on the list, their personal identification number
(JMBG number), permanent residence address, declared affiliation with
a particular 'constituent people' or the group of 'others', valid ID
card number and place of issue, as well as a signature of the president
of the political party or presidents of the political parties in the
coalition. Each candidate's declaration of acceptance of candidacy, a
statement confirming the absence of impediments referred to in section
1.10 § 1(4) of this Act and a statement indicating his or her property
situation referred to in section 15.7 of this Act shall be attached to
the list. The declaration and statements must be duly certified.


The declaration of affiliation with a particular 'constituent people'
or the group of 'others' referred to in the paragraph [immediately]
above shall be used for purposes of the exercise of the right to hold
an elected or appointed position for which such declaration is required
in the election cycle for which the list has been submitted.

A candidate shall be entitled not to declare his or her affiliation to a
'constituent people' or the group of 'others'. However, any such failure
to declare affiliation shall be considered as a waiver of the right
to hold an elected or appointed position for which such declaration
is required.”

Section 8.1

“The members of the Presidency of Bosnia and Herzegovina who are
directly elected from the territory of the Federation of Bosnia and
Herzegovina – one Bosniac and one Croat, shall be elected by voters
registered to vote in the Federation of Bosnia and Herzegovina. A voter
registered to vote in the Federation of Bosnia and Herzegovina may vote
for either the Bosniac or Croat member of the Presidency, but not for
both. The Bosniac and Croat member who receives the highest number of
votes among candidates from the same constituent people shall be elected.

The member of the Presidency of Bosnia and Herzegovina who is directly
elected from the territory of the Republika Srpska – a Serb – shall
be elected by voters registered to vote in the Republika Srpska. The
candidate who receives the highest number of votes shall be elected.

The mandate for the members of the Presidency of Bosnia and Herzegovina
shall be four (4) years.”

Section 9.12a

“Croat and Bosniac delegates from the Federation of Bosnia and
Herzegovina to the House of Peoples of Bosnia and Herzegovina shall be
elected by the Croat and Bosniac caucus, as appropriate, in the House
of Peoples of the Federation of Bosnia and Herzegovina.

Croat and Bosniac delegates to the House of Peoples of the Federation
of Bosnia and Herzegovina shall elect delegates from their respective
constituent people.

Serb delegates and delegates of the 'others' to the House of Peoples of
the Federation of Bosnia and Herzegovina shall not participate in the
process of electing Bosniac and Croat delegates for the House of Peoples
of Bosnia and Herzegovina from the Federation of Bosnia and Herzegovina.

Delegates from the Republika Srpska (five Serbs) to the House of Peoples
of Bosnia and Herzegovina shall be elected by the National Assembly of
the Republika Srpska.

Bosniac and Croat delegates and delegates of the 'others' to the National
Assembly of the Republika Srpska shall participate in the process of
electing delegates from the Republika Srpska to the House of Peoples of
Bosnia and Herzegovina. “

Section 9.12c

“Bosniac or Croat delegates to the House of Peoples of Bosnia and
Herzegovina shall be elected in such a way that each political entity
participating in the Bosniac or Croat caucus or each delegate from the
Bosniac or the Croat caucus in the House of Peoples of the Federation
of Bosnia and Herzegovina, shall have the right to nominate one or more
candidates to the list for the election of Bosniac or Croat delegates
to the House of Peoples of Bosnia and Herzegovina.

Each list may include more candidates than the number of delegates to
be elected to the House of Peoples of Bosnia and Herzegovina.”

Section 9.12e

“Election of delegates from the Republika Srpska to the House of
Peoples of Bosnia and Herzegovina shall be conducted in such a way that
each political party or each delegate to the National Assembly of the
Republika Srpska shall have the right to nominate one or more candidates
to the list for the election of Serb delegates to the House of Peoples
of Bosnia and Herzegovina.

Each list may include more candidates than the number of delegates to
be elected to the House of Peoples of Bosnia and Herzegovina.”

C.  United Nations

19.  The International Convention on the Elimination of All Forms of
Racial Discrimination, adopted under the auspices of the United Nations on
21 December 1965, entered into force in respect of Bosnia and Herzegovina
on 16 July 1993. The relevant part of its Article 1 provides:

“In this Convention, the term 'racial discrimination' shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.”

The relevant part of Article 5 of the Convention reads as follows:

“In compliance with the fundamental obligations laid down in article
2 of this Convention, States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the
right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights:

...

(c) Political rights, in particular the right to participate in elections
– to vote and to stand for election – on the basis of universal and
equal suffrage, to take part in the Government as well as in the conduct
of public affairs at any level and to have equal access to public service;

...”

The “concluding observations” on Bosnia and Herzegovina of the
Committee on the Elimination of Racial Discrimination, the body of
independent experts set up to monitor the implementation of this treaty,
read, in the relevant part, as follows (document CERD/C/BIH/CO/6 of 11
April 2006, § 11):

“The Committee is deeply concerned that under Articles IV and V of
the State Constitution, only persons belonging to a group considered
by law to be one of Bosnia and Herzegovina's 'constituent peoples'
(Bosniaks, Croats, and Serbs), which group also constitutes the dominant
majority within the Entity in which the person resides (e.g., Bosniaks
and Croats within the Federation of Bosnia and Herzegovina, and Serbs
within the Republika Srpska), can be elected to the House of Peoples and
to the tripartite Presidency of Bosnia and Herzegovina. The existing
legal structure therefore excludes from the House of Peoples and the
Presidency all persons who are referred to as 'Others', that is persons
belonging to national minorities or ethnic groups other than Bosniaks,
Croats, or Serbs. Although the tripartite structure of the State
party's principal political institutions may have been justified, or
even initially necessary to establish peace following the armed conflict
within the territory of the State party, the Committee notes that legal
distinctions that favour and grant special privileges and preferences
to certain ethnic groups are not compatible with Articles 1 and 5 (c)
of the Convention. The Committee further notes that this is especially
true when the exigency for which the special privileges and preferences
were undertaken has abated. (Arts. 1 (4) and 5 (c)).

The Committee urges the State party to proceed with amending the relevant
provisions of the State Constitution and the Election Law, with a view
to ensuring the equal enjoyment of the right to vote and to stand for
election by all citizens irrespective of ethnicity.”

20.  The International Covenant on Civil and Political Rights, adopted
under the auspices of the United Nations on 16 December 1966, entered
into force in respect of Bosnia and Herzegovina on 6 March 1992. The
following are its relevant provisions:

Article 2 § 1

“Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth
or other status.”

Article 25

“Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:

(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in
his country.”

Article 26

“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such
as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”

The “concluding observations” on Bosnia and Herzegovina of the Human
Rights Committee, the body of independent experts set up to monitor the
implementation of this treaty, read, in the relevant part, as follows
(document CCPR/C/BIH/CO/1 of 22 November 2006, § 8):

“The Committee is concerned that after the rejection of the relevant
constitutional amendment on 26 April 2006, the State Constitution and
Election Law continue to exclude 'Others', i.e. persons not belonging
to one of the State party's 'constituent peoples' (Bosniaks, Croats and
Serbs), from being elected to the House of Peoples and to the tripartite
Presidency of Bosnia and Herzegovina. (arts. 2, 25 and 26)

The State party should reopen talks on the constitutional reform in
a transparent process and on a wide participatory basis, including all
stakeholders, with a view to adopting an electoral system that guarantees
equal enjoyment of the rights under article 25 of the Covenant to all
citizens irrespective of ethnicity.”

D.  Council of Europe

21.  In becoming a member of the Council of Europe in 2002, Bosnia and
Herzegovina undertook to “review within one year, with the assistance
of the European Commission for Democracy through Law (Venice Commission),
the electoral legislation in the light of Council of Europe standards,
and to revise it where necessary” (see Opinion 234 (2002) of the
Parliamentary Assembly of the Council of Europe of 22 January 2002, § 15
(iv) (b)). Thereafter, the Parliamentary Assembly of the Council of Europe
has periodically reminded Bosnia and Herzegovina of this post-accession
obligation and urged it to adopt a new constitution before October 2010
with a view to replacing “the mechanisms of ethnic representation
by representation based on the civic principle, notably by ending the
constitutional discrimination against 'Others'” (see Resolution 1383
(2004) of 23 June 2004, § 3; Resolution 1513 (2006) of 29 June 2006,
§ 20; and Resolution 1626 (2008) of 30 September 2008, § 8).

22.  The Venice Commission, the Council of Europe's advisory body on
constitutional matters, adopted a number of opinions in this connection.

The Opinion on the constitutional situation in Bosnia and Herzegovina
and the powers of the High Representative (document CDL-AD(2005)004 of
11 March 2005) reads, in the relevant part, as follows:

“1. On 23 June 2004 the Parliamentary Assembly of the Council of Europe
adopted Resolution 1384 on “Strengthening of democratic institutions
in Bosnia and Herzegovina”. Paragraph 13 of the Resolution asks the
Venice Commission to examine several constitutional issues in Bosnia
and Herzegovina.

...

29. Bosnia and Herzegovina is a country in transition facing severe
economic problems and desiring to take part in European integration. The
country will only be able to cope with the numerous challenges resulting
from this situation if there is a strong and effective government. The
constitutional rules on the functioning of the state organs are however
not designed to produce strong government but to prevent the majority from
taking decisions adversely affecting other groups. It is understandable
that in a post-conflict situation there was (and is) insufficient
trust between ethnic groups to allow government on the basis of the
majoritarian principle alone. In such a situation specific safeguards
have to be found which ensure that all major groups, in Bosnia and
Herzegovina the constituent peoples, can accept the constitutional rules
and feel protected by them. As a consequence the Bosnia and Herzegovina
Constitution ensures the protection of the interests of the constituent
peoples not only through territorial arrangements reflecting their
interests but also through the composition of the state organs and the
rules on their functioning. In such a situation, a balance has indeed to
be struck between the need to protect the interests of all constituent
peoples on the one hand and the need for effective government on the
other. However, in the Bosnia and Herzegovina Constitution, there are many
provisions ensuring the protection of the interests of the constituent
peoples, inter alia: the vital interest veto in the Parliamentary
Assembly, the two chamber system and the collective Presidency on an
ethnic basis. The combined effect of these provisions makes effective
government extremely difficult, if not impossible. Hitherto the system
has more or less functioned due to the paramount role of the High
Representative. This role is however not sustainable.

The vital interest veto

30. The most important mechanism ensuring that no decisions are taken
against the interest of any constituent people is the vital interest
veto. If the majority of the Bosniac, Croat or Serb delegates in the
House of Peoples declare that a proposed decision of the Parliamentary
Assembly is destructive to a vital interest of their people, the majority
of Bosniac, Serb and Croat delegates have to vote for the decision for it
to be adopted. The majority of delegates from another people may object
to the invocation of the clause. In this case a conciliation procedure
is foreseen and ultimately a decision is taken by the Constitutional
Court as to the procedural regularity of the invocation. It is noteworthy
that the Constitution does not define the notion of vital interest veto,
contrary to the Entity Constitutions which provide a (excessively broad)
definition.

31. It is obvious, and was confirmed by many interlocutors, that this
procedure entails a serious risk of blocking decision-making. Others
argued that this risk should not be overestimated since the procedure has
rarely been used and the Constitutional Court in a decision of 25 June
2004 started to interpret the notion [see decision U-8/04 on the vital
interest veto against the Framework Law on Higher Education]. The decision
indeed indicates that the Court does not consider that the vital interest
is a purely subjective notion within the discretion of each member of
parliament and which would not be subject to review by the Court. On the
contrary, the Court examined the arguments put forward to justify the
use of the vital interest veto, upheld one argument and rejected another.

32. The Commission is nevertheless of the opinion that a precise and
strict definition of vital interest in the Constitution is necessary. The
main problem with veto powers is not their use but their preventive
effect. Since all politicians involved are fully conscious of the
existence of the possibility of a veto, an issue with respect to which
a veto can be expected will not even be put to the vote. Due to the
existence of the veto, a delegation taking a particularly intransigent
position and refusing to compromise is in a strong position. It is
true that further case-law from the Constitutional Court may provide
a definition of the vital interest and reduce the risks inherent in
the mechanism. This may however take a long time and it also seems
inappropriate to leave such a task with major political implications
to the Court alone without providing it with guidance in the text of
the Constitution.

33. Under present conditions within Bosnia and Herzegovina, it seems
unrealistic to ask for a complete abolition of the vital interest
veto. The Commission nevertheless considers that it would be important
and urgent to provide a clear definition of the vital interest in the
text of the Constitution. This definition will have to be agreed by
the representatives of the three constituent peoples but should not
correspond to the present definition in the Entity Constitutions which
allows practically anything being defined as vital interest. It should
not be excessively broad but focus on rights of particular importance
to the respective peoples, mainly in areas such as language, education
and culture.

Entity veto

34. In addition to the vital interest veto, Article IV § 3 (d) of the
Constitution provides for a veto by two-thirds of the delegation from
either Entity. This veto, which in practice seems potentially relevant
only for the Republika Srpska, appears redundant having regard to the
existence of the vital interest veto.

Bicameral system

35. Article IV of the Constitution provides for a bicameral system
with a House of Representatives and a House of Peoples both having the
same powers. Bicameral systems are typical for federal states and it is
therefore not surprising that the Bosnia and Herzegovina Constitution
opts for two chambers. However, the usual purpose of the second chamber
in federal states is to ensure a stronger representation of the smaller
entities. One chamber is composed on the basis of population figures
while in the other either all entities have the same number of seats
(Switzerland, USA) or at least smaller entities are overrepresented
(Germany). In Bosnia and Herzegovina this is quite different: in both
chambers two-thirds of the members come from the Federation of Bosnia
and Herzegovina, the difference being that in the House of Peoples
only the Bosniacs and Croats from the Federation and the Serbs from the
Republika Srpska are represented. The House of Peoples is therefore not
a reflection of the federal character of the state but an additional
mechanism favouring the interests of the constituent peoples. The main
function of the House of Peoples under the Constitution is indeed as
the chamber where the vital interest veto is exercised.

36. The drawback of this arrangement is that the House of Representatives
becomes the chamber where legislative work is done and necessary
compromises are made in order to achieve a majority. The role of the House
of Peoples is only negative as a veto chamber, where members see as their
task to exclusively defend the interests of their people without having
a stake in the success of the legislative process. It would therefore
seem preferable to move the exercise of the vital interest veto to the
House of Representatives and abolish the House of Peoples. This would
streamline procedures and facilitate the adoption of legislation without
endangering the legitimate interests of any people. It would also solve
the problem of the discriminatory composition of the House of Peoples.

The collective Presidency

37. Article V of the Constitution provides for a collective Presidency
with one Bosniac, one Serb and one Croat member and a rotating chair. The
Presidency endeavours to take its decisions by consensus (Article V § 2
(c)). In case of a decision by a majority, a vital interest veto can be
exercised by the member in the minority.

38. A collective Presidency is a highly unusual arrangement. As regards
the representational functions of Head of State, these are more easily
carried out by one person. At the top of the executive there is already
one collegiate body, the Council of Ministers, and adding a second
collegiate body does not seem conducive to effective decision-making. This
creates a risk of duplication of decision-making processes and it becomes
difficult to distinguish the powers of the Council of Ministers and of
the Presidency. Moreover, the Presidency will either not have the required
technical knowledge available within ministries or need substantial staff,
creating an additional layer of bureaucracy.

39. A collective Presidency therefore does not appear functional
or efficient. Within the context of Bosnia and Herzegovina, its
existence seems again motivated by the need to ensure participation by
representatives from all constituent peoples in all important decisions. A
single President with important powers seems indeed difficult to envisage
for Bosnia and Herzegovina.

40. The best solution therefore would be to concentrate executive
power within the Council of Ministers as a collegiate body in which
all constituent peoples are represented. Then a single President as
Head of State should be acceptable. Having regard to the multi-ethnic
character of the country, an indirect election of the President by
the Parliamentary Assembly with a majority ensuring that the President
enjoys wide confidence within all peoples would seem preferable to direct
elections. Rules on rotation providing that a newly elected President may
not belong to the same constituent people as his predecessor may be added.

...

74. In the present case, the distribution of posts in the State organs
between the constituent peoples was a central element of the Dayton
Agreement making peace in Bosnia and Herzegovina possible. In such
a context, it is difficult to deny legitimacy to norms that may be
problematic from the point of view of non-discrimination but necessary
to achieve peace and stability and to avoid further loss of human
lives. The inclusion of such rules in the text of the Constitution
[of Bosnia and Herzegovina] at that time therefore does not deserve
criticism, even though they run counter to the general thrust of the
Constitution aiming at preventing discrimination.

75. This justification has to be considered, however, in the light
of developments in Bosnia and Herzegovina since the entry into force
of the Constitution. Bosnia and Herzegovina has become a member of the
Council of Europe and the country has therefore to be assessed according
to the yardstick of common European standards. It has now ratified the
[European Convention on Human Rights] and Protocol No. 12 [thereto]. As
set forth above, the situation in Bosnia and Herzegovina has evolved in a
positive sense but there remain circumstances requiring a political system
that is not a simple reflection of majority rule but which guarantees
a distribution of power and positions among ethnic groups. It therefore
remains legitimate to try to design electoral rules ensuring appropriate
representation for various groups.

76. This can, however, be achieved without entering into conflict with
international standards. It is not the system of consensual democracy
as such which raises problems but the mixing of territorial and ethnic
criteria and the apparent exclusion from certain political rights of
those who appear particularly vulnerable. It seems possible to redesign
the rules on the Presidency to make them compatible with international
standards while maintaining the political balance in the country.

77. A multi-ethnic composition can be ensured in a non-discriminatory way,
for example by providing that not more than one member of the Presidency
may belong to the same people or the Others and combining this with
an electoral system ensuring representation of both Entities. Or, as
suggested above, as a more radical solution which would be preferable in
the view of the Commission, the collective Presidency could be abolished
and replaced by an indirectly elected President with very limited powers.

...

80. The House of Peoples is a Chamber with full legislative
powers. Article 3 of Protocol No. 1 to the [European Convention on
Human Rights] is thereby applicable and any discrimination on ethnic
grounds is thereby prohibited by Article 14 of the [Convention]. As to
a possible justification, the same considerations as with respect to
the Presidency apply. While it is a legitimate aim to try to ensure an
ethnic balance within Parliament in the interest of peace and stability,
this can justify ethnic discrimination only if there are no other means
to achieve this goal and if the rights of minorities are adequately
respected. For the House of Peoples it would for example be possible to
fix a maximum number of seats to be occupied by representatives from
each constituent people. Or, as argued above, a more radical solution
which would have the preference of the Commission, could be chosen and
the House of Peoples simply be abolished and the vital national interest
mechanism be exercised within the House of Representatives.”

The Opinion on different proposals for the election of the Presidency
of Bosnia and Herzegovina (CDL-AD(2006)004 of 20 March 2006), in the
relevant part, provides:

“1. By letter dated 2 March 2006 the Chairman of the Presidency of
Bosnia and Herzegovina, Mr Sulejman Tihić, asked the Venice Commission
to provide an Opinion on three different proposals for the election of
the Presidency of this country. This request was made in the framework of
negotiations on constitutional reform between the main political parties
in Bosnia and Herzegovina. The issue of the election of the Presidency
remains to be resolved in order to reach agreement on a comprehensive
reform package.

...

Comments on Proposal I

8. Proposal I would consist of maintaining the present rules on the
election and composition of the Presidency, with one Bosniac and
one Croat elected from the territory of the Federation and one Serb
elected from the territory of Republika Srpska. In its [Opinion on the
constitutional situation in Bosnia and Herzegovina and the powers of
the High Representative] the Commission raised serious concerns as to
the compatibility with Protocol No. 12 to the European Convention of
Human Rights of such a rule, which formally excludes Others as well as
Bosniacs and Croats from Republika Srpska and Serbs from the Federation
from being elected to the Presidency. Maintaining this rule as it stands
should therefore be excluded and Proposal I be rejected.

Comments on Proposal II

9. Proposal II, which is not drafted as text to be included in the
Constitution but as a summary of possible constitutional content,
maintains the system of directly electing two members of the Presidency
from the Federation and one from Republika Srpska, however without
mentioning any ethnic criteria for the candidates. The de jure
discrimination pointed out in the Venice Commission Opinion would
therefore be removed and adoption of this proposal would constitute a step
forward. The Proposal also includes a rotation of the President of the
Presidency every 16 months. Within the logic of a collective Presidency,
this appears as a rational solution.

10. By contrast, the Proposal lacks clarity as to the pluri-ethnic
composition of the Presidency. The collective Presidency was introduced,
and supposedly will now be maintained, in order to ensure that no
single state organ is dominated by a representative of a single
constituent people. As it stands, under the proposal it would be
possible to, for example, elect two Bosniacs from the Federation to the
Presidency. Legally, this drawback could be remedied in the framework of
the Proposal by providing that not more than one member of the Presidency
may belong at the same time to the same constituent people or the group
of Others. It is the understanding of the Commission that the intention
is indeed to include such a provision in the Constitution in case this
proposal is adopted.

11. However, the problem would result of having to possibly exclude from
the Presidency candidates who have received a higher number of votes. In
the Federation it is quite possible that two Bosniacs would attain
the highest number of votes. In this case, a candidate who obtained
more votes would have to be barred from the Presidency in favour of a
candidate who obtained fewer votes. These issues should be regulated
clearly at the level of the Constitution and not be left to ordinary law.

12. As a further drawback, de facto Bosniacs and Croats from the
Republika Srpska and Serbs from the Federation would also continue to
have no realistic possibility to elect a candidate of their preference.

13. Furthermore, the election of the Head of State would continue to take
place on an Entity basis while it would be desirable to move it to the
State level as part of the overall approach of strengthening the State.

14. As a minor issue, the proposal would also allow members of the
Presidency to hold a leadership position in a political party. This
does not seem in line with the overall aim of constitutional reform of
transforming the Presidency from an executive body into a (collective)
Head of State.

15. To sum up, Proposal II is a clear improvement with respect to the
present constitutional situation. However, it has a number of drawbacks,
including the risk that candidates with less votes than others are elected
and it does not contribute to the overall aims of the constitutional
reform of moving power to the Council of Ministers and strengthening
the State level.

Proposal III

16. Proposal III differs more markedly from the present constitutional
situation by introducing a complicated procedure of indirect elections
for the Presidency. As set forth above, the main preference of the
Commission is for the indirect election of a single President with reduced
powers. But also in the case of a collective Presidency, the Commission
maintains its preference for indirect elections.

17. The reason is, first of all, that one of the main aims of the
constitutional reform would be to reduce the powers of the Presidency and
to concentrate executive power in the Council of Ministers. This change
will be more difficult to bring about if the Presidency does have the
legitimacy of a direct popular vote.

18. Moreover, in an indirect election it is easier to devise mechanisms
ensuring the desired pluri-ethnic composition of the Presidency. It
offers more possibilities for inter-ethnic cooperation and compromise
while direct elections for de facto separate ethnic slots provide an
incentive to vote for the person considered as the strongest advocate of
the respective constituent people and not for the candidate best suited
to defend the interests of the country as a whole.

19. Finally, the Proposal moves the election to the State parliament. It
is indeed desirable and in line with the overall aim of strengthening
the State to have the election of the Head of State at this level.

20. From the point of view of the overall approach, Proposal III therefore
seems preferable. There are nevertheless some drawbacks.

21. First of all, the proposal seems complicated with too many steps and
possibilities for stalemate. Nominations can be put forward by members
of the House of Representatives or the House of Peoples, the selection
of the candidates takes place by the three separate ethnic caucuses in
the House of Peoples and thereafter the slate of candidates has to be
confirmed both by the three caucuses in the House of Peoples and by the
House of Representatives.

22. Within the parameters of the proposal, it would seem preferable to
have a simpler procedure with more focus on the House of Representatives
as the body having direct democratic legitimacy derived from the people
as a whole. The possibility to nominate candidates should be reserved to
members of the House of Representatives, selection among these candidates
could take place in the three separate ethnic caucuses of the House of
Peoples to ensure that the interests of all three constituent peoples
are respected and the slate of candidates would have to be confirmed
by the majority of the composition of the House of Representatives,
ensuring that all three members have legitimacy as representatives of
the people of Bosnia and Herzegovina as a whole.

23. In addition, it should be clarified how the positions of the President
and Vice- Presidents are to be distributed. As it stands, Proposal III
leaves this important decision implicitly to backroom dealing between
the three ethnic caucuses since a slate identifying President and
Vice-Presidents has to be submitted to the House of Representatives,
while no indication is provided on how this choice has to be made. This
seems the worst possible solution and likely to lead to stalemate. The
rotation envisaged by Proposal II seems more feasible.

24. There are also other aspects of Proposal III which are not in
accordance with the preferences of the Venice Commission. In its
above-mentioned Opinion, the Commission argued in favour of abolishing
the House of Peoples. Giving it a strong role in the selection of the
Presidency cannot therefore be considered a positive step. The role
of ethnic caucuses makes the election of candidates not belonging to
a constituent people extremely unlikely. This is however not peculiar
to this Proposal but reflects the political situation. The proposal
at least ensures that the representatives of the Others in the House
of Representatives will take part in the vote and that Serbs from the
Federation and Bosniacs and Croats from Republika Srpska are no longer
disadvantaged since their representatives in the State parliament will
be able to vote for the candidates of their choice.

25. Even in the framework of a collective Presidency, solutions for
indirect elections could be devised, which would appear preferable. For
example, within the House of Representatives, slates of three candidates
not coming from the same constituent people or the group of Others could
be nominated and the vote could take place between such slates. This would
nevertheless be a different proposal and not an amendment to Proposal III.

26. To sum up, Proposal III is also a clear improvement with respect
to the present situation. If it were to be adjusted as suggested in
paragraphs 22 and 23, it would appear suitable as a solution (although
not an ideal one) for the first stage of constitutional reform.

Conclusions

27. In conclusion, the Commission strongly welcomes that the political
parties in Bosnia and Herzegovina have found the courage to try adopting
a comprehensive constitutional reform before the forthcoming elections
in October 2006. It acknowledges that a reform adopted at this stage
can have an interim character only, as a step towards the comprehensive
reform the country clearly needs.

28. With respect to the three proposals submitted to the Commission,
adoption of the first proposal could only be regarded as a failure of
constitutional reform on this issue and should be excluded. By contrast,
both Proposal II and Proposal III deserve, subject to some additions
and amendments, to be considered at the present stage as important steps
forward, but by no means as ideal solutions.

29. Between Proposal II and Proposal III, the Commission would - though
not without hesitation - give preference to Proposal III, subject to some
adjustments as indicated above. An indirect election in line with the aim
of the constitutional reform of reducing the powers of the Presidency
makes it easier to ensure a balanced composition of the Presidency and
thereby corresponds better to the raison d'être of this - unusual -
institution. The Proposal also moves the election to the State level,
in accordance with the overall aim to strengthen the State of Bosnia and
Herzegovina. However, sight should not be lost of the ultimate aim of
constitutional reform in this area: having in future a single President
elected in a manner ensuring that he or she enjoys trust beyond the
ethnic group to which he or she belongs.”

The Opinion on the draft amendments to the Constitution of Bosnia and
Herzegovina (CDL-AD(2006)019 of 12 June 2006) provides, in the relevant
part, as follows:

“1. By letter dated 21 March 2006 the Chairman of the Presidency of
Bosnia and Herzegovina, Mr Sulejman Tihić, asked the Venice Commission
to give an Opinion on the text of the agreement on the modalities of
the first phase of constitutional reform reached by the leaders of
political parties in Bosnia and Herzegovina on 18 March 2006. Since the
constitutional reform has to be adopted urgently in order to make it
possible to take it into account at the parliamentary elections scheduled
for October 2006, he expressed the wish to receive the Opinion of the
Venice Commission 'shortly'.

...

 
Amendment II to Article IV of the Constitution on the Parliamentary Assembly

22. The main aim of the Amendment is to move from a bicameralism with two
equal chambers to a new system where the House of Peoples (...) would
have only limited powers with a focus on the vital national interests
veto. The new structure of the Article, systematically putting the House
of Representatives (...) first, reflects this aim. The reform would
be a step in the direction of the Venice Commission recommendation to
abolish the House of Peoples and to streamline decision-making within
the State institutions.

...

24. Sub-section (d) would increase the number of members of the House
of Peoples from 15 to 21. The justification of the increase in the
membership of this House is less apparent since its powers are greatly
reduced. Nevertheless, this is an issue entirely within the discretion
of the national authorities. If they feel that this increase is required
to ensure that the House adequately represents the political spectrum,
this step seems justifiable.

25. More problematic is the circumstance that membership in this House
remains limited under sub-section (d) to people belonging to one of the
three constituent peoples. In its Opinion [on the constitutional situation
in Bosnia and Herzegovina and the powers of the High Representative]
the Venice Commission noted that the previous composition of this House
along similar lines seemed to contradict Article 14 of the [European
Convention on Human Rights] in conjunction with Article 3 of Protocol
No. 1 [thereto].

26. Following the reform the House of Peoples would however no longer
be a full legislative chamber but a body dealing mainly with the vital
national interests veto. It seems therefore questionable whether Article 3
of Protocol No. 1 and thereby Article 14 of the [Convention] would still
be applicable. The problem of the compatibility of this provision with
Protocol No. 12 [to the Convention] remains however. In the absence of
any case-law on this Protocol, it can be interpreted only with prudence...

27. In the present case the legitimate aim could be seen in the main
role of the House as a body in which the vital national interests veto is
exercised. The Bosnia and Herzegovina Constitution reserves the right to
exercise this veto to the three constituent peoples and does not give it
to the Others. From that perspective it would not seem required to include
“Others” in the composition of this House. The other responsibilities
of the House, to participate in the election of the Presidency and to
approve constitutional amendments- though not beyond criticism-, do not
lead to a different result. They show that the function of the House of
Peoples is to be a corrective mechanism, ensuring that the application
of the democratic principle reflected in the composition of the House of
Representatives does not disturb the balance among the three constituent
peoples. The need for such a mechanism seems still to be felt in Bosnia
and Herzegovina. In that case it seems possible to regard this need as
a legitimate aim justifying an unequal treatment of Others in respect
to representation in the House of Peoples.

...

 
Amendment III to Article V of the Constitution on the Presidency

43. The main aim of the Amendments is to strengthen the powers of the
Council of Ministers and increase its efficiency and reduce the role
of the Presidency. This is entirely in line with the Opinion [on the
constitutional situation in Bosnia and Herzegovina and the powers of the
High Representative] of the Venice Commission. In addition, the Commission
would have preferred having a single President instead of a collective
Presidency. This does however not seem politically possible at the
moment. Nevertheless Amendment III takes a first step in this direction.


...

46. The Venice Commission adopted an Opinion on the three
alternative proposals for electing the Presidency at its last session
(CDL-AD(2006)004). It would serve no purpose to re-open this discussion
at the present moment. The absence of a dead-lock breaking mechanism
if the House of Representatives refuses to confirm the proposal of the
House of Peoples is however a concern.

...”

23.  The European Commission against Racism and Intolerance (ECRI) is the
Council of Europe's independent human rights monitoring body specialised
in combating racism, racial discrimination, xenophobia, anti-Semitism
and intolerance. In its general policy recommendation No. 7, adopted on
13 December 2002, ECRI defines racism as “the belief that a ground
such as race6, colour, language, religion, nationality or national or
ethnic origin justifies contempt for a person or a group of persons,
or the notion of superiority of a person or a group of persons”.
E.  Organisation for Security and Cooperation in Europe (OSCE)

24.  In a report concerning the general elections held in 2006, the
OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR),
the lead agency in Europe in election observation, held as follows:

“The 1 October general elections in Bosnia and Herzegovina were the
first elections since the 1995 Dayton Agreement to be fully administered
by the Bosnia and Herzegovina authorities. The manner in which these
elections were conducted was generally in line with international
standards for democratic elections, although further efforts are
needed, particularly with regard to the vote count. Therefore, overall,
the elections represented further progress in the consolidation of
democracy and the rule of law. However, it was regrettable that, due to
constitutional ethnicity-based limitations to the right to stand for
office, the elections were again in violation of Protocol No. 12 to
the European Convention on Human Rights (ECHR) and of the commitments
made to the Council of Europe, as well as article 7.3 of the OSCE 1990
Copenhagen Document.”

F.  European Union

25.  In 2008 Bosnia and Herzegovina signed and ratified a Stabilization
and Association Agreement (SAA) with the European Union and thereby
committed itself to addressing the European Partnership priorities. One of
the key priorities for Bosnia and Herzegovina, expected to be accomplished
within one to two years, is to “amend electoral legislation regarding
members of the Bosnia and Herzegovina Presidency and House of Peoples
delegates to ensure full compliance with the European Convention on Human
Rights and the Council of Europe post-accession commitments” (see Annex
to Council Decision 2008/211/EC of 18 February 2008 on the principles,
priorities and conditions contained in the European Partnership with
Bosnia and Herzegovina and repealing Decision 2006/55/EC, Official
Journal of the European Union L 80/21 (2008)).

On 14 October 2009 the European Commission adopted its annual strategy
document explaining its policy on EU enlargement. The 2009 progress
reports were published on the same date, where the Commission services
monitor and assess the achievements of each of the candidate countries and
potential candidates (such as Bosnia and Herzegovina) over the last year.

THE LAW

I.  THE APPLICANTS' PRINCIPAL COMPLAINTS

26.  The applicants took issue with their ineligibility to stand for
election to the House of Peoples and the Presidency on the ground of
their Roma and Jewish origin, which, in their view, amounted to racial
discrimination. They relied on Article 14, Article 3 of Protocol No. 1
and Article 1 of Protocol No. 12.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention
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.”

Article 3 of Protocol No. 1 to the Convention provides:

“The High Contracting Parties undertake to hold free elections at
reasonable intervals by secret ballot, under conditions which will
ensure the free expression of the opinion of the people in the choice
of the legislature.”

Article 1 of Protocol No. 12 to the Convention provides:

“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.”

A.  Admissibility

27.  Although the respondent State did not raise any objection as to the Court's competence ratione personae, this issue calls for consideration ex officio by the Court.
1.  Whether the applicants may claim to be “victims”

28.  It is reiterated that in order to be able to lodge a petition
by virtue of Article 34 of the Convention, a person, non-governmental
organisation or group of individuals must be able to claim to be the
victim of a violation of the rights set forth in the Convention. In order
to claim to be a victim of a violation, a person must be directly affected
by the impugned measure. The Convention does not, therefore, envisage
the bringing of an actio popularis for the interpretation of the rights
set out therein or permit individuals to complain about a provision of
national law simply because they consider, without having been directly
affected by it, that it may contravene the Convention. It is, however,
open to applicants to contend that a law violates their rights, in the
absence of an individual measure of implementation, if they belong to
a class of people who risk being directly affected by the legislation
or if they are required either to modify their conduct or risk being
prosecuted (see Burden v. the United Kingdom [GC], no. 13378/05, §§
33-34, 29 April 2008, and the authorities cited therein).

29.  In the present case, given the applicants' active participation
in public life, it would be entirely coherent that they would in fact
consider running for the House of Peoples or the Presidency. The
applicants may therefore claim to be victims of the alleged
discrimination. The fact that the present case raises the question of
the compatibility of the national Constitution with the Convention is
irrelevant in this regard (see, by analogy, Rekvényi v. Hungary [GC],
no. 25390/94, ECHR 1999-III).

2.  Whether the respondent State may be held responsible

30.  The Court notes that the Constitution of Bosnia and Herzegovina is
an annex to the Dayton Peace Agreement, itself an international treaty
(see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR
2005-XII). The power to amend it was, however, vested in the Parliamentary
Assembly of Bosnia and Herzegovina, which is clearly a domestic body
(see paragraph 15 above). In addition, the practice set out in paragraph
17 above confirms that the powers of the international administrator for
Bosnia and Herzegovina (the High Representative) do not extend to the
State Constitution. In those circumstances, leaving aside the question
whether the respondent State could be held responsible for putting in
place the contested constitutional provisions (see paragraph 13 above),
the Court considers that it could nevertheless be held responsible for
maintaining them.

3.  Conclusion

31.  The Court declares the applicants' principal complaints admissible.

B.  Merits

1.  The applicants' submissions

32.  Despite being citizens of Bosnia and Herzegovina, the applicants are
denied by the Constitution any right to stand for election to the House
of Peoples and the Presidency on the grounds of their race/ethnicity
(ethnic discrimination has been held by the Court to be a form of racial
discrimination in Timishev v. Russia, nos. 55762/00 and 55974/00, § 56,
ECHR 2005-XII). The applicants submitted that difference in treatment
based expressly on race or ethnicity was not capable of justification
and amounted to direct discrimination. In this regard, they referred
to the Court's case-law (notably, Timishev, cited above, § 58, and
D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 176, ECHR
2007-...) and to European Union legislation (such as Council Directive
2000/43/EC of 29 June 2000 – the “Race Directive” – implementing
the principle of equal treatment between persons irrespective of racial or
ethnic origin, which in Article 2 explicitly included under its definition
of indirect discrimination the possibility of objectively justifying the
treatment, but made no such justification possible under its definition of
direct discrimination). They further submitted that this impossibility of
justification was particularly important in a case concerning the right
to stand for election (they referred to Aziz v. Cyprus, no. 69949/01,
§ 28, ECHR 2004-V).

33.  Even on the assumption that a justification was possible, the
applicants maintained that the respondent Government would still
bear a very heavy burden when seeking to establish an objective and
reasonable justification, given both the basis of the complaint (direct
racial and ethnic discrimination) and the areas to which it applied
(political participation and representation at the highest level of
state). Furthermore, the length of time during which the exclusion had
continued increased even more the burden on the respondent Government
to justify it (they referred to a decision of the UN Human Rights
Committee of 8 April 1981 in the case of Silva and Others v. Uruguay,
§ 8.4). The applicants concluded that the respondent Government had
failed to demonstrate that the difference in treatment was justified in
the instant case.

2.  The Government's submissions

34.  The Government referred to the case of Ždanoka v. Latvia ([GC],
no. 58278/00, ECHR 2006-IV), in which the Court had reaffirmed that the
Contracting Parties enjoyed considerable latitude in establishing rules
within their constitutional order to govern parliamentary elections
and the composition of the parliament, and that the relevant criteria
could vary according to the historical and political factors peculiar
to each State. The current constitutional structure in Bosnia and
Herzegovina was established by a peace agreement following one of the
most destructive conflicts in recent European history. Its ultimate
goal was the establishment of peace and dialogue between the three
main ethnic groups – the “constituent peoples”. The Government
maintained that the contested constitutional provisions, excluding
persons who did not declare affiliation with a “constituent people”
from the House of Peoples and the Presidency, should be assessed against
this background. They claimed that the time was still not ripe for a
political system which would be a simple reflection of majority rule,
given, in particular, the prominence of mono-ethnic political parties
and the continued international administration of Bosnia and Herzegovina.

35.  The Government invited the Court to distinguish the present case
from the case of Aziz (cited above): while Turkish Cypriots living in
the Government-controlled area of Cyprus were prevented from voting
at any parliamentary election, citizens of Bosnia and Herzegovina
belonging to the group of “others” (such as the applicants in the
present case) were entitled to stand as candidates for election to the
House of Representatives of Bosnia and Herzegovina and the Entities'
legislatures. They concluded that the difference in treatment was
justified in the particular circumstances.

3.  The third parties' submissions

36.  The Venice Commission, in its submissions of 22 October 2008, took
the view that the constitutional provisions contested in the present
case breached the prohibition of discrimination. These submissions were
along the lines of the Opinions cited in paragraph 22 above.

37.  The AIRE Centre and the Open Society Justice Initiative, in their
submissions of 15 August 2008, argued likewise. Based on an analysis of
the Contracting Parties' legal systems, the AIRE Centre concluded that
a European consensus had emerged that it was appropriate to withdraw
an individual's right to stand for office only as a result of his or
her conduct, as opposed to innate or inalienable characteristics. The
Open Society Justice Initiative underlined that political participation
represented one of the rights and responsibilities that maintained the
legal bond between a citizen and a State. In most jurisdictions, the
rights to vote, to be elected and to stand for office were what most
clearly distinguished a citizen from an alien. Restrictions on these
rights, particularly on the suspect grounds of race and ethnicity,
were, therefore, not only discriminatory, but undermined the meaning
of citizenship itself. Aside from being an important right linked with
citizenship, political participation was particularly important for
ethnic minorities and essential to overcoming their marginalization and
bringing them into the mainstream. This was particularly true following an
ethnic conflict, where legally entrenched distinctions based on ethnicity
could exacerbate tensions, rather than fostering the constructive and
sustainable relations between all ethnicities that were essential to a
viable multiethnic State.

4.  The Court's assessment

(a)  As regards the House of Peoples of Bosnia and Herzegovina

38.  The applicants relied on Article 14 of the Convention taken in
conjunction with Article 3 of Protocol No. 1, Article 3 of Protocol
No. 1 taken alone and Article 1 of Protocol No. 12. The Court considers
that this complaint should first be examined under the first-mentioned
provisions.

(i)  Applicability of Article 14 in conjunction with Article 3 of Protocol No. 1

39.  It is recalled that Article 14 complements the other substantive
provisions of the Convention and the Protocols thereto. It has no
independent existence since it has effect solely in relation to
“the enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the 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 at issue fall
“within the ambit” of one or more of the latter (see, among many other
authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985, § 71, Series A no. 94; Petrovic v. Austria, 27 March
1998, § 22, Reports 1998-II; and Şahin v. Germany [GC], no. 30943/96,
§ 85, ECHR 2003-VIII). The prohibition of discrimination in Article
14 thus extends beyond the enjoyment of the rights and freedoms which
the Convention and the Protocols require each State to guarantee. It
applies also to those additional rights falling within the general scope
of any Convention article, for which the State has voluntarily decided
to provide. This principle is well entrenched in the Court's case-law
(see Case “relating to certain aspects of the laws on the use of
languages in education in Belgium” v. Belgium (Merits), 23 July 1968,
§ 9, Series A no. 6; Stec and Others v. the United Kingdom (dec.) [GC],
nos. 65731/01 and 65900/01, § 40, ECHR 2005-X; and E.B. v. France [GC],
no. 43546/02, § 48, ECHR 2008-...).

40.  The Court must decide, therefore, whether elections to the House
of Peoples of Bosnia and Herzegovina fall within the “ambit”
or “scope” of Article 3 of Protocol No. 1. In this connection,
it is reiterated that this provision applies only to elections of a
“legislature”, or at least of one of its chambers if it has two or
more. However, the word “legislature” has to be interpreted in the
light of each State's constitutional structure (see Matthews v. the United
Kingdom [GC], no. 24833/94, ECHR 1999-I, § 40) and, in particular, its
constitutional traditions and the scope of the legislative powers of the
chamber in question. Furthermore, the travaux préparatoires demonstrate
(vol. VIII, pp. 46, 50 and 52) that the Contracting Parties took into
account the particular position of certain parliaments which included
non-elective chambers. Thus, Article 3 of Protocol No. 1 was carefully
drafted so as to avoid terms which could be interpreted as an absolute
obligation to hold elections for both chambers in each and every bicameral
system (see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 53,
Series A no. 113). At the same time, however, it is clear that Article 3
of Protocol No. 1 applies to any of a parliament's chambers to be filled
through direct elections.

41.  As regards the House of Peoples of Bosnia and Herzegovina, the
Court notes that its composition is the result of indirect elections,
its members being appointed by the Entities' legislatures. In addition,
the Court observes that the extent of the legislative powers enjoyed
by it is a decisive factor here. The House of Peoples indeed enjoys
wide powers to control the passage of legislation: Article IV § 3 (c)
of the Constitution specifically provides that no legislation can be
adopted without the approval of both chambers. Furthermore, the House
of Peoples, together with the House of Representatives, decides upon
the sources and amounts of revenues for the operations of the State
institutions and international obligations of Bosnia and Herzegovina
and approves a budget of the State institutions (see Article IV § 4
(b)-(c) of the Constitution). Lastly, its consent is necessary before a
treaty can be ratified (see Articles IV § 4 (d) and V § 3 (d) of the
Constitution). Elections to the House of Peoples, therefore, fall within
the scope of Article 3 of Protocol No. 1.

Accordingly, Article 14 taken in conjunction with Article 3 of Protocol
No. 1 is applicable.

(ii)  Compliance with Article 14 in conjunction with Article 3 of Protocol No. 1

42.  The Court reiterates that discrimination means treating differently,
without an objective and reasonable justification, persons in similar
situations. “No objective and reasonable justification” means that
the distinction in issue does not pursue a “legitimate aim” or that
there is not a “reasonable relationship of proportionality between
the means employed and the aim sought to be realised” (see, among many
authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 81, 18 February
2009). The scope of a Contracting Party's margin of appreciation in this
sphere will vary according to the circumstances, the subject matter and
the background (ibid., § 82).

43.  Ethnicity and race are related concepts. Whereas the notion
of race is rooted in the idea of biological classification of human
beings into subspecies on the basis of morphological features such as
skin colour or facial characteristics, ethnicity has its origin in the
idea of societal groups marked in particular by common nationality,
religious faith, shared language, or cultural and traditional origins
and backgrounds. Discrimination on account of a person's ethnic origin
is a form of racial discrimination (see the definition adopted by the
International Convention on the Elimination of All Forms of Racial
Discrimination in paragraph 19 above and that adopted by the European
Commission against Racism and Intolerance in paragraph 23 above). Racial
discrimination is a particularly egregious kind of discrimination and,
in view of its perilous consequences, requires from the authorities
special vigilance and a vigorous reaction. It is for this reason
that the authorities must use all available means to combat racism,
thereby reinforcing democracy's vision of a society in which diversity
is not perceived as a threat but as a source of enrichment (see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR
2005-VII, and Timishev, cited above, § 56).

44.  In this context, where a difference in treatment is based on race or
ethnicity, the notion of objective and reasonable justification must be
interpreted as strictly as possible (see D.H. and Others, cited above,
§ 196). The Court has also held that no difference in treatment which
is based exclusively or to a decisive extent on a person's ethnic origin
is capable of being objectively justified in a contemporary democratic
society built on the principles of pluralism and respect for different
cultures (ibid., § 176). That being said, Article 14 does not prohibit
Contracting Parties from treating groups differently in order to correct
“factual inequalities” between them. Indeed, in certain circumstances
a failure to attempt to correct inequality through different treatment
may, without an objective and reasonable justification, give rise to
a breach of that Article (Case “relating to certain aspects of the
laws on the use of languages in education in Belgium”, cited above,
§ 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV;
and D.H. and Others, cited above, § 175).

45.  Turning to the present case, the Court observes that in order to
be eligible to stand for election to the House of Peoples of Bosnia
and Herzegovina, one has to declare affiliation with a “constituent
people”. The applicants, who describe themselves to be of Roma and
Jewish origin respectively and who do not wish to declare affiliation with
a “constituent people”, are, as a result, excluded (see paragraph 11
above). The Court notes that this exclusion rule pursued at least one aim
which is broadly compatible with the general objectives of the Convention,
as reflected in the Preamble to the Convention, namely the restoration
of peace. When the impugned constitutional provisions were put in place
a very fragile cease-fire was in effect on the ground. The provisions
were designed to end a brutal conflict marked by genocide and “ethnic
cleansing”. The nature of the conflict was such that the approval of
the “constituent peoples” (namely, the Bosniacs, Croats and Serbs)
was necessary to ensure peace. This could explain, without necessarily
justifying, the absence of representatives of the other communities
(such as local Roma and Jewish communities) at the peace negotiations
and the participants' preoccupation with effective equality between the
“constituent peoples” in the post-conflict society.

46.  It is nevertheless the case that the Court is only competent
ratione temporis to examine the period after the ratification of the
Convention and Protocol No. 1 thereto by Bosnia and Herzegovina. The
Court does not need to decide whether the upholding of the contested
constitutional provisions after ratification of the Convention could
be said to serve a “legitimate aim” since for the reasons set out
below the maintenance of the system in any event does not satisfy the
requirement of proportionality.

47.  To begin with, the Court observes significant positive developments
in Bosnia and Herzegovina since the Dayton Peace Agreement. It is true
that progress might not always have been consistent and challenges remain
(see, for example, the latest progress report on Bosnia and Herzegovina
as a potential candidate for EU membership prepared by the European
Commission and published on 14 October 2009, SEC/2009/1338). It is
nevertheless the case that in 2005 the former parties to the conflict
surrendered their control over the armed forces and transformed them into
a small, professional force; in 2006 Bosnia and Herzegovina joined NATO's
Partnership for Peace; in 2008 it signed and ratified a Stabilisation
and Association Agreement with the European Union; in March 2009 it
successfully amended the State Constitution for the first time; and it
has recently been elected a member of the United Nations Security Council
for a two-year term beginning on 1 January 2010. Furthermore, whereas
the maintenance of an international administration as an enforcement
measure under Chapter VII of the United Nations Charter implies that the
situation in the region still constitutes a “threat to international
peace and security”, it appears that preparations for the closure of
that administration are under way (see a report by Mr Javier Solana, EU
High Representative for the Community and Common Foreign and Security
Policy, and Mr Olli Rehn, EU Commissioner for Enlargement, on EU's
Policy in Bosnia and Herzegovina: The Way Ahead of 10 November 2008,
and a report by the International Crisis Group on Bosnia's Incomplete
Transition: Between Dayton and Europe of 9 March 2009).

48.  In addition, while the Court agrees with the Government that
there is no requirement under the Convention to abandon totally the
power-sharing mechanisms peculiar to Bosnia and Herzegovina and that
the time may still not be ripe for a political system which would be a
simple reflection of majority rule, the Opinions of the Venice Commission
(see paragraph 22 above) clearly demonstrate that there exist mechanisms
of power-sharing which do not automatically lead to the total exclusion
of representatives of the other communities. In this connection, it is
recalled that the possibility of alternative means achieving the same
end is an important factor in this sphere (see Glor v. Switzerland,
no. 13444/04, § 94, 30 April 2009).

49.  Lastly, by becoming a member of the Council of Europe in 2002
and by ratifying the Convention and the Protocols thereto without
reservations, the respondent State has voluntarily agreed to meet the
relevant standards. It has specifically undertaken to “review within
one year, with the assistance of the European Commission for Democracy
through Law (Venice Commission), the electoral legislation in the light
of Council of Europe standards, and to revise it where necessary”
(see paragraph 21 above). Likewise, by ratifying a Stabilization and
Association Agreement with the European Union in 2008, the respondent
State committed itself to “amend[ing] electoral legislation regarding
members of the Bosnia and Herzegovina Presidency and House of Peoples
delegates to ensure full compliance with the European Convention on
Human Rights and the Council of Europe post-accession commitments”
within one to two years (see paragraph 25 above).

50.  Thus, the Court concludes that the applicants' continued
ineligibility to stand for election to the House of Peoples of Bosnia
and Herzegovina lacks an objective and reasonable justification and has
therefore breached Article 14 taken in conjunction with Article 3 of
Protocol No. 1.

(iii)  The complaints under Article 3 of Protocol No. 1 taken alone and
Article 1 of Protocol No. 12

51.  Having regard to its finding in the preceding paragraph, the Court
considers that it is not necessary to examine separately whether there
has also been a violation of Article 3 of Protocol No. 1 taken alone or
under Article 1 of Protocol No. 12 as regards the House of Peoples.

(b)  As regards the Presidency of Bosnia and Herzegovina

52.  The applicants relied on Article 1 of Protocol No. 12 only.
(i)  Applicability of Article 1 of Protocol No. 12

53.  The Court notes 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 of discrimination.

54.  The applicants contested constitutional provisions rendering
them ineligible to stand for election to the Presidency of Bosnia and
Herzegovina. Therefore, whether or not elections to the Presidency fall
within the scope of Article 3 of Protocol No. 1 (see Boškoski v. “the
former Yugoslav Republic of Macedonia” (dec.), no. 11676/04, ECHR
2004-VI), this complaint concerns a “right set forth by law” (see
sections 1.4 and 4.19 of the Election Act 2001 reproduced in paragraph
18 above) which makes Article 1 of Protocol No. 12 applicable. This has
not been contested before the Court.

(ii)  Compliance with Article 1 of Protocol No. 12

55.  The notion of discrimination has been interpreted consistently in
the Court's jurisprudence concerning Article 14 of the Convention. In
particular, this jurisprudence has made it clear that “discrimination”
means treating differently, without an objective and reasonable
justification, persons in similar situations (see paragraphs 42-44 above
and the authorities cited therein). The authors used the same term,
discrimination, in Article 1 of Protocol No. 12. Notwithstanding the
difference in scope between those provisions, the meaning of this term
in Article 1 of Protocol No. 12 was intended to be identical to that in
Article 14 (see the Explanatory Report to Protocol No. 12, § 18). The
Court does not therefore see any reason to depart from the settled
interpretation of “discrimination”, noted above, in applying the
same term under Article 1 of Protocol No. 12 (as regards the case-law
of the UN Human Rights Committee on Article 26 of the International
Covenant on Civil and Political Rights, a provision similar – although
not identical – to Article 1 of Protocol No. 12 to the Convention,
see Nowak, CCPR Commentary, N.P. Engel Publishers, 2005, pp. 597-634).

56.  The lack of a declaration of affiliation by the present applicants
with a “constituent people” also rendered them ineligible to stand for
election to the Presidency. An identical constitutional pre-condition
has already been found to amount to a discriminatory difference in
treatment in breach of Article 14 as regards the House of Peoples
(see paragraph 50 above) and, moreover, the notions of discrimination
prohibited by Article 14 and by Article 1 of Protocol No. 12 are to be
interpreted in the same manner (the preceding paragraph). It follows that
the constitutional provisions which render the applicants ineligible for
election to the Presidency must also be considered discriminatory and a
breach of Article 1 of Protocol No. 12, the Court not considering that
there is any pertinent distinction to be drawn in this regard between
the House of Peoples and the Presidency of Bosnia and Herzegovina.

Accordingly, and for the detailed reasons outlined in paragraphs 47-49
above in the context of Article 14, the Court finds that the impugned
pre-condition for eligibility for election to the Presidency constitutes
a violation of Article 1 of Protocol No. 12.

II.  THE APPLICANTS' REMAINING COMPLAINTS

A.  Article 3 of the Convention

57.  The first applicant submitted that his ineligibility to stand for
election to the House of Peoples and the Presidency on the ground of
his Roma origin effectively reduced him and other members of the Roma
community as well as other members of national minorities in Bosnia and
Herzegovina to the status of second-class citizens. This, in his view,
amounted to a special affront to his human dignity in breach of Article
3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”

58.  The Court has held in previous cases that racial discrimination
could, in certain circumstances, of itself amount to degrading treatment
within the meaning of Article 3 (see East African Asians v. the United
Kingdom, nos. 4403/70 et al., Commission's report of 14 December
1973, § 208, Decisions and Reports 78, and Cyprus v. Turkey [GC],
no. 25781/94, § 310, ECHR 2001-IV). In the present case, however,
the Court observes that the difference of treatment complained of
did not denote any contempt or lack of respect for the personality of
the applicant and that it was not designed to, and did not, humiliate
or debase but was intended solely to achieve the aim referred to in
paragraph 45 above.

This complaint is therefore manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention and must be rejected under Article
35 § 4.

B.  Article 13 of the Convention

59.  The applicants complained under Article 13 of the Convention that
they had not had an effective domestic remedy for their discrimination
complaints. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

60.  The Court reiterates that Article 13 does not guarantee a remedy
allowing a challenge to primary legislation before a national authority
on the ground of being contrary to the Convention (see A. and Others
v. the United Kingdom [GC], no. 3455/05, § 135, 19 February 2009). Since
the present case concerns the content of constitutional provisions,
as opposed to an individual measure of implementation, the complaint
is manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected under Article 35 § 4.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

61.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention
or the Protocols thereto, and if the internal law of the High Contracting
Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

62.  The applicants made no claim in respect of pecuniary damage. In
respect of non-pecuniary damage, the first applicant claimed 20,000 euros
(EUR) and the second applicant EUR 12,000. The Government maintained
that the claims were unjustified.

63.  The Court considers that the finding of a violation, constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants.
B.  Costs and expenses

64.  The first applicant was represented pro bono and he only claimed
EUR 1,000 for his counsel's appearance at the hearing before the Court
on 3 June 2009. The second applicant claimed EUR 33,321 for the entire
case. This included 270 hours worked by his two counsel and another
member of the legal team, Ms Cynthia Morel of the Minority Rights Group
International, at EUR 82.45 per hour in preparing the application,
observations and just satisfaction claim before the Chamber and Grand
Chamber, together with disbursements such as an expert report by Mr
Zoran Pajić of Expert Consultancy International Ltd, meetings of the
legal team with the applicant in New York and Sarajevo, and the costs
of the hearing before the Grand Chamber. The applicant explained that
involvement of a third lawyer, Ms Cynthia Morel, had been necessary
given the range and complexity of issues to be addressed.

65.  The Government maintained that the above claims were unnecessarily
incurred and excessive. In particular, they contested the need for
the second applicant to use foreign-based lawyers, whose fees were
incomparably higher than those of local lawyers, and whose appointment
had had the effect of inflating the expenses for travel and communication.

66.  The Court disagrees with the Government that applicants must choose
locally-based lawyers to represent them before the Court, notwithstanding
the fact that such lawyers may be able to offer a service of the
same quality as foreign-based lawyers (as evidenced in the present
case). Accordingly, the disparity between the amounts claimed in the
present case is not sufficient in itself to render the higher of them
unnecessary or unreasonable. That being said, the Court considers the
amount claimed by the second applicant to be excessive and awards the
second applicant EUR 20,000 under this head. The first applicant's costs
and expenses should be met in full.

C.  Default interest

67.  The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1.  Decides unanimously to join the applications;

2.  Declares by a majority the applicants' principal complaints as regards
their ineligibility to stand for election to the House of Peoples of
Bosnia and Herzegovina admissible;

3.  Declares unanimously the applicants' principal complaints as regards
their ineligibility to stand for election to the Presidency of Bosnia
and Herzegovina admissible;

4.  Declares unanimously the remainder of the applications inadmissible;

5.  Holds by fourteen votes to three that there has been a violation
of Article 14 taken in conjunction with Article 3 of Protocol No. 1 as
regards the applicants' ineligibility to stand for election to the House
of Peoples of Bosnia and Herzegovina;

6.  Holds unanimously that there is no need to examine the same complaint
under Article 3 of Protocol No. 1 taken alone or under Article 1 of
Protocol No. 12;

7.  Holds by sixteen votes to one that there has been a violation of
Article 1 of Protocol No. 12 as regards the applicants' ineligibility
to stand for election to the Presidency of Bosnia and Herzegovina;

8.  Holds unanimously that the finding of a violation constitutes
in itself sufficient just satisfaction for any non-pecuniary damage
sustained by the applicants;

9.  Holds

(a)  by sixteen votes to one that the respondent State is to pay the
first applicant, within three months, EUR 1,000 (one thousand euros)
in respect of costs and expenses, to be converted into convertible marks
at the rate applicable at the date of settlement, plus any tax that may
be chargeable to the first applicant;

(b)  by fifteen votes to two that the respondent State is to pay the
second applicant, within three months, EUR 20,000 (twenty thousand euros)
in respect of costs and expenses, to be converted into convertible marks
at the rate applicable at the date of settlement, plus any tax that may
be chargeable to the second applicant;

(c)  unanimously that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;

10.  Dismisses unanimously the remainder of the second applicant's claim
for just satisfaction.

Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 22 December 2009.

Vincent Berger Jean-Paul Costa  
 Jurisconsult President
 
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
–  the partly concurring and partly dissenting opinion of Judge Mijović, joined by Judge Hajiyev;
–  the dissenting opinion of Judge Bonello.
J.-P.C. 
V.B. 

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE MIJOVIĆ, JOINED BY JUDGE HAJIYEV

I.  GENERAL REMARKS

In the Sejdić and Finci v. Bosnia and Herzegovina judgment, the Grand
Chamber has found a violation of Article 14 taken in conjunction with
Article 3 of Protocol No. 1 as regards that State's constitutional
arrangements in respect of the House of Peoples, and a violation
of Article 1 of Protocol No. 12 with regard to the constitutional
arrangements on the State Presidency of Bosnia and Herzegovina.

Although I had a few reservations concerning the Grand Chamber's reasoning
on the latter point, I had no difficulties in sharing the majority's
view that the constitutional arrangements concerning the State Presidency
structure amount to a violation of the prohibition of discrimination. On
the other hand, and to my regret, my opinion on the former point differs
significantly from the conclusion reached by the majority.

Since this is the very first case related to the general prohibition
of discrimination as enshrined in Article 1 of Protocol No. 12, and
a case that tackles the essence of the internal State structure of
Bosnia and Herzegovina, there have been huge expectations on the part of
the public. In addition, the fact that this is the very first case of
its kind in the Court's case-law, in the sense that it might result in
serious constitutional turmoil and rearrangements in one of the Council
of Europe member States, has contributed to those expectations.

The specific characteristics not only of the creation of Bosnia and
Herzegovina, but also of its accession to the Council of Europe, have
further increased the importance of this case. It might be said that
all of the weak features of Bosnia and Herzegovina's statehood, visible
but ignored at the moment of its accession to the Council of Europe,
have shown themselves to their full extent in this case.

My general remarks are firstly related to the fact that, as Judge Bonello
has correctly pointed out in his dissenting opinion, the Grand Chamber has
failed to analyze both the historical background and the circumstances in
which the Bosnia and Herzegovina Constitution was imposed. I believe that,
in so doing, the Court has set aside its previous case-law, in which it
examines all the relevant factors that are important in making a final
evaluation. I consider those circumstances to be particularly important
in this case, because it is precisely those circumstances that led to
the current State structure of Bosnia and Herzegovina.
 
II.  FACTUAL BACKGROUND

The first thing I wondered in this case was whether Bosnia and Herzegovina
was totally aware of the possible consequences of ratifying all Convention
Protocols when they did so.

Specifically, Bosnia and Herzegovina is one of the seventeen Council
of Europe member States which have ratified Protocol No. 12. Given
that thirty other member States decided not to do so, this illustrates
different approaches towards Protocol No. 12 and the issues covered by it.

The two applications before us deal with the very heart of the
post-war organisational structure of the State, put in place by the
1995 Constitution of Bosnia and Herzegovina, which was, from a technical
point of view, a part or, more accurately, an annex to an international
peace settlement – the Dayton Peace Agreement (hereinafter “the
DPA”). Once the masters of war had decided to become masters of peace,
after long and difficult negotiations between political representatives of
the Bosniacs, Croats and Serbs under the supervision of the international
community, they created a state that was of an unprecedented shape, one
that was previously totally unknown in international and constitutional
law.

The Dayton Peace Agreement constituted Bosnia and Herzegovina, comprising
of two entities, while the Preamble to the Constitution reads that
only Bosniacs, Serbs and Croats are constituent peoples. The other
ethnic groups, which did not take sides in the conflict, were simply set
aside. Their legal position, an extremely sensitive issue, was left for
some calmer and politically less sensitive time.

In accordance with the DPA constitutional arrangements, persons belonging
to national (ethnic) minorities cannot be candidates for the State
Presidency and the House of Peoples of the State Parliament, although
these two State institutions are not the only bodies where the balance of
power between three constituent peoples was designated by this settlement
(see, for example, the structure of the Constitutional Court, which
consists of two Bosniacs, two Croats, two Serbs and three foreign judges).

In the present case, the distribution of posts in the State organs
between the constituent peoples was a central element of the DPA, making
peace in Bosnia and Herzegovina possible. In such a context, denying
legitimacy to norms that may be problematic from the point of view of
non-discrimination but were necessary to achieve peace and stability
and to avoid further loss of human lives would be very difficult.

That is the key aspect of the sensitive nature of these applications,
because the changes in the composition of specific political institutions
requested by the applicants would actually require changes in the
existing balance of power, which could rekindle the serious tensions
that are still present in Bosnia and Herzegovina.

Aware of the necessity for constitutional reform, in 2006 the
international community pushed the leading politicians of Bosnia
and Herzegovina to enter into negotiations with a view to adopting an
electoral system that would guarantee equal enjoyment of political rights
to all citizens, irrespective of ethnicity, but these proved completely
unsuccessful. Talks have now been reopened, which means that, in dealing
with the instant cases, the Court is entering a highly sensitive area,
one that concerns an issue that has already received tremendous public
attention.

The applicants in these two cases are a Rom and a Jew. They complained
that, despite possessing experience comparable to that of the highest
elected officials, they were prevented by the Constitution of Bosnia and
Herzegovina and the Election Act 2001 from standing as candidates for
the Presidency and the House of Peoples of the Parliamentary Assembly,
solely on the ground of their ethnic origin, which, in their opinion,
amounted to discrimination.

III.  STATE STRUCTURE OF BOSNIA AND HERZEGOVINA

As noted above, the Constitution of Bosnia and Herzegovina was the
result of long and difficult negotiations between representatives of the
Bosniacs, Croats and Serbs, under the supervision of the international
community. Its complex power-sharing arrangements concern mainly the
Bosniacs, Croats and Serbs, as direct parties to the 1992-95 war, and so
the main political institutions were designed to achieve a balance of
power between the three constituent peoples. Other ethnic groups were
not taken into consideration at that time, since they had not taken
sides in the conflict. After the war these minority groups became part
of all power-sharing arrangements at the entity levels. This has not
been the case at the State level, however, and that is the reason for
the applicants' complaints.

Power-sharing arrangements at the State level, particularly those
concerning the structure of the House of Peoples and the State Presidency,
provide that only those who declare affiliation with one of the three
main ethnic groups are entitled to hold a position in these two State
organs. It must be added that, in the context of Bosnia and Herzegovina,
ethnic affiliation is not to be taken as a legal category, since it
depends exclusively on one's self-classification, which represents stricto
sensu a subjective criterion. It actually means that everyone has a right
to declare (or not) his or her affiliation with one ethnic group. It is
not obligatory to do so. There is neither a legal obligation to declare
one's ethnic affiliation, nor objective parameters for establishing
such affiliation.

Affiliation becomes an important issue only if an individual wishes to
become involved in politics. A declaration of ethnic affiliation is thus
not an objective and legal category, but a subjective and political one.

IV.  VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12

Although I had a few reservations concerning the Grand Chamber's reasoning
with regard to the violation of Article 1 of Protocol No. 12, I had no
difficulties in sharing the majority's view that Bosnia and Herzegovina's
constitutional arrangements concerning the State Presidency structure
represent a violation of the general prohibition of discrimination.

My dissension regarding this part of the Grand Chamber's judgment arises
from my expectations that the Court would use this case, as the very
first of its kind, to lay down specific first principles, standards or
tests that might be considered universal and applicable to future cases
concerning general discrimination. Those expectations obviously turned
out to be unrealistic, since the Court has merely reiterated the very
same reasoning and justification as those applied in finding a violation
of Article 14 with regard to the complaint concerning the constitutional
arrangements on the House of Peoples.

In addition, the Court treated this complaint as being of less importance,
thus creating the impression that Article 1 of Protocol No. 12 was
applied only because it was not possible to apply Article 3 of Protocol
No. 1. The relevant reasoning on Article 1 of Protocol No. 12 was set out
in only two paragraphs, in which the Court came to the conclusion that
there was no “pertinent distinction to be drawn between the House of
Peoples and the Presidency of Bosnia and Herzegovina” with regard to
discriminatory constitutional arrangements. In contrast, I believe that
there were a few distinctive elements that should have been discussed.

The tripartite structure of the Bosnia and Herzegovina State Presidency
is, like many other State institutions in that country, a result of
the political compromise achieved by the peace accord. Its structure
was intended to establish a mechanism of balance and to prevent the
supremacy of any one people in the decision-making process. In my
opinion, the key question that required an answer in this case whether
that tripartite structure was ever justified, and whether it continues
to be justified. From the perspective of the case-law on Article 1
of Protocol 12, it would have been not only interesting but also very
useful had the Court decided to give its view on this point. Instead,
it merely reiterated the arguments concerning the tests applied in the
Article 14 part of judgment, an approach that I find disappointing.

Hypothetically speaking, were it not occurring in a State built on
atrocities, massacres and bloodshed, I would be of the opinion that,
even taken alone, the obligation on an individual to declare his or her
affiliation with an ethnic group in order to stand as a candidate for
a public position is unacceptable and sufficient to find a violation of
the prohibition of discrimination based on ethnic affiliation.

Turning back to the State Presidency structure, if Bosnia and Herzegovina
were a stable and self-sustainable State, the ineligibility of minorities,
but also the ineligibility of all those who are unable or unwilling
to declare their ethnic affiliation in order to stand as candidates
for public positions would be the essence of discrimination. However,
since Bosnia and Herzegovina was created as result of pressure from
the international community and, fourteen years later, still does not
function as an independent and sovereign State, it cannot be said that
it represents a State that is sufficiently stable to withstand the
above approach.

On the other hand, if nothing is done in order to improve the current
situation, there is no chance that progress will occur. The elimination
of mistrust among ethnicities is, in my opinion, a process that must
be developed very carefully, step by step. If the time has come for a
change in the post-conflict State structure (and here I emphasise again
that the Court has not embarked on any such evaluation), I hope that
a change in the composition of the State Presidency could be the first
step. The State Presidency is an institution that represents the State
as a whole7, while the House of Peoples has an important and sensitive
role in the protection of “vital national interests”.

V.  VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL NO. 1

Regrettably, I cannot share the majority's opinion as regards Article 14
taken in conjunction with Article 3 of Protocol No. 1 for the following
reasons.

First of all, the issue of the applicability of Article 3 of Protocol
No. 1 is very questionable. Article 3 of Protocol No. 1 protects the right
to free elections, although there is no definite and commonly accepted
answer to the question whether this covers both direct and indirect
elections8. Relying on its case-law, however, the Court states that
Article 3 of Protocol No. 1 was “carefully drafted so as to avoid
terms which could be interpreted as an absolute obligation to hold
elections for both chambers in each and every bicameral system” (see
paragraph 40 of the judgment). At the same time, as the Grand Chamber
points out, it is clear that Article 3 of Protocol No. 1 applies to any
of a parliament's chambers to be filled through direct elections. Direct
or indirect, it should be clarified that in Bosnia and Herzegovina, no
elections are envisaged for the members of the House of Peoples. They
are appointed by the entity Parliaments, which means that the complaints
before the Court are of a purely theoretical nature, since there have
been no previous elections nor is there an obligation on the entity
Parliaments to appoint any particular candidate. The composition of the
House of Peoples is not the result of an electoral process. The members
of the House of Peoples are to be designated/selected by a majority in
the Republika Srpska National Assembly or a majority in the Clubs of
Bosniacs and Croats in the Parliament of the Federation of Bosnia and
Herzegovina9. Given that the original version of the Constitution was
written in English, even a linguistic approach confirms that we are
not in the presence of elections, but of appointments. In particular,
Article IV of the Constitution reads that House of Peoples “shall
comprise 15 delegates”, and that “the designated delegates shall be
selected” by the respective entity Parliaments10.

The concept of the right to free elections in Bosnia and Herzegovina
simply does not include per se the right to stand for election to the
House of Peoples, since members of this House are, as noted, not elected,
but designated/selected by the entity Parliaments.

The elections would still be indirect if the lists of candidates were
announced during an electoral campaign or at any other moment before their
appointment (and as such were transparent to the public), or if there
were any criteria they had to fulfil in order to be appointed. However,
their names do not appear on electoral ballots or lists. A fact that
has been totally ignored by the Court is that neither the Constitution
of Bosnia and Herzegovina nor the Election Act set out the criteria
that candidates must fulfil in order to stand for election to the House
of Peoples. There is not a single domestic provision that prescribes
the structure, political party or even political option from which
candidates are to be picked11. It is thus theoretically possible that
any individual, including those who are not even engaged in public life,
could be selected. Accordingly, the procedure for designating members of
the House of Peoples does not depend on their political party membership;
there are no formal ties between these delegates and voters and the
candidates' names are unknown to the general public, voters included,
before they are nominated by members of the entity Parliaments. What
is formally needed is only their declaration of ethnic affiliation,
which is of no legal relevance for anything other than their membership
of the House of Peoples. Strictly speaking, it is clear that the
applicants cannot be “elected”, not because of their ethnicity,
but because of the absence of provisions which allow for the election
of delegates in general, since the members of this House are exclusively
appointed. Equally, a complaint might be lodged by individuals belonging
to one of the three constituent peoples, claiming that there are no free
elections to the House of Peoples for them either, since the only way
for somebody to become a member of this House is through appointment by
an entity Parliament. Accordingly, there is no general right for anyone
to stand for election to the House of Peoples and there are no elections
of this kind. Consequently, if this procedure is to be established as
discriminatory, could the same discrimination criteria be applied to
those parliamentary systems that prescribe that second chamber seats
are hereditary (as in the British House of Lords) or conditioned by
public function (as in the German Bundesrat)? I am of the opinion that an
affirmative answer in respect of such systems would be as inappropriate
as it is in respect of Bosnia and Herzegovina.

The fact that the only formal condition to be fulfilled by delegates
to the House of Peoples concerns one's ethnic affiliation shows that
the House of Peoples was designed to secure ethnic balance in the
legislature. It is a well-established fact that mechanisms of this kind
made peace in Bosnia and Herzegovina possible, and it is obvious that
even fourteen years later there is still no common and mutual approach
towards possible constitutional rearrangements in that State12.

My second point of disagreement with the Grand Chamber's decision on
admissibility is related to the legal nature of the House of Peoples. The
Grand Chamber's understanding is that it is the second chamber of
the Bosnia and Herzegovina Parliamentary Assembly, a point on which
I disagree.

Generally speaking, an upper house is usually distinct from the lower
house in one (or more) of the following respects: it has less power
than the lower house, including that of expressing a reservation on
certain decisions of the lower house; it has limited powers, such as
those concerning certain constitutional amendments that may require
its approval; it is an advisory or “revising” chamber, so that its
powers of direct action are often reduced in some way; it represents
administrative or federal units; if elected, its members often sit for
longer terms than those of the lower house (if composed of peers or
nobles, members hold their seats for life) and if elected, they are
elected in sections for staggered terms, rather than all at once.

As regards their institutional structure, there is a great variety in the
way the members of an upper chamber are assembled. They can be elected
directly or indirectly, appointed, selected through hereditary means,
or a certain mixture of all these systems can be applied. As noted above,
the German Bundesrat is quite unique in that its members are members of
the cabinets of the German Länder who are merely delegated and can be
recalled at any time, as is the British House of Lords, where the seats
are partly hereditary.

As shown above, the upper chamber is, as a rule, designed to represent
administrative or federal units, which is not the case in Bosnia and
Herzegovina, since the House of Peoples represents not only the entities
of Bosnia and Herzegovina, but also ethnicities (that is, constituent
peoples). Both chambers of the Parliamentary Assembly are equal and they
form two parts, which cannot function independently. Each and every draft
text has to be discussed and adopted by both houses, while the special
role of the House of Peoples is to protect “vital national interests”.

With regard to the applicability of Article 3 of Protocol No. 1, the
Grand Chamber found the extent of the legislative powers enjoyed by the
House of Peoples to be decisive13 while, in my opinion, it is quite the
opposite. Specifically, both houses have the same powers14, since all
legislation “shall require the approval of both chambers”15. This
in fact confirms that they have equal standing, although ethnic
representation in the House of Peoples is of some relevance only when
it comes to the vital interests of the constituent peoples: “[a]
proposed decision of the Parliamentary Assembly may be declared to be
destructive of a vital interest of the Bosniac, Croat, or Serb people
by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates
selected in accordance with paragraph l(a)... Such a proposed decision
shall require for approval in the House of Peoples a majority of the
Bosniac, of the Croat, and of the Serb Delegates present and voting”16.

Constitutional provisions related to those powers that are not divided
between the House of Representatives and the House of Peoples (see
footnote 2 on this page) illustrate that the Parliamentary Assembly
of Bosnia and Herzegovina has a unique structure that does not
allow any categorisation according to commonly accepted academic
models. Additionally, Article X of the Constitution provides that
the Constitution “may be amended by a decision of the Parliamentary
Assembly”, which is to be interpreted as stating that both houses are
to decide on any such question.

An implied conclusion in this judgment, namely that the applicants in this
case, who are of Roma and Jewish origin, are prevented from participating
in the legislature of Bosnia and Herzegovina because they are not eligible
to stand for election to the House of Peoples, would be wrong, since
both Houses have the same powers and the applicants have the entirely
plausible option of becoming members of the House of Representatives,
where candidature is independent of ethnicity17.

The House of Peoples is a veto chamber where members perceive their
exclusive task as being that of defending the interests of their peoples,
and that is exactly what makes it a sui generis mechanism. Fourteen years
after the DPA, does Bosnia and Herzegovina still need this mechanism? That
is another question that should be addressed as a justification for a
finding on the merits only if Article 3 of Protocol 1 is applicable.

To sum up, my opinion is that Article 3 of Protocol No. 1 is not
applicable in this case because the right of any individual to stand for
election to the House of Peoples per se simply does not exist in domestic
law; the House of Peoples is a non-elective organ, having neither the
typical characteristics nor the powers of a second chamber, and its
structure places it outside the ambit of Article 3 of Protocol No. 1.

As regards the merits of this complaint, the main question is whether
the current differential treatment is discriminatory. The definition
that has been developed in the Court's case-law on Article 14 is that
a difference of 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.

The majority's conclusion that the relevant constitutional provisions were
not intended to establish ethnic domination, as argued by the applicants,
but indeed to stop a brutal conflict and to secure effective equality
between the warring parties, i.e. constituent peoples, is correct, as is
the majority's conclusion that the impact of these provisions is different
treatment on ethnic grounds. However, was this arrangement justified,
and if yes, are the relevant grounds still present and significant? The
Grand Chamber preferred to leave this question half-answered, while I
thought that a detailed answer to this question would have been the most
important response. Differential treatment of individuals belonging to
“Others” was an issue left to be dealt with once the situation in
Bosnia and Herzegovina was less sensitive, and from that perspective
the Court has accepted that it was initially justified.

However, what is the situation now, fourteen years after the
DPA? Returning to the facts that initially justified the impugned
arrangements and so far as losses are concerned, at least 100,000
inhabitants of Bosnia and Herzegovina disappeared or were killed during
the war. Almost 1.3 million people from the pre-war population (28%)
became refugees living outside Bosnia and Herzegovina. In the absence of
war and allowing for the usual death, birth and migration rates, at the
end of 1995 Bosnia and Herzegovina would have had 4.5 million inhabitants,
while in reality there were only 2.9 million people in the country at the
end of 1995. It has been fourteen years since the armed conflict ended,
but is there real and significant progress as argued by the Grand Chamber?

The latest Amnesty International report on Bosnia and Herzegovina states
that “13 years after the war ended an estimated 13,000 people still
remained missing. The use of nationalist rhetoric increased in BiH and
the country continued to be deeply divided along ethnic lines”18.

According to the Ministry of Human Rights and Refugees of Bosnia and
Herzegovina, more than 1.2 million people have not yet returned to their
pre-war homes. Those that have returned are often faced with inadequate
access to housing and employment. About 2,700 families still live in
so-called collective housing establishments. Some of the returnees have
not been able to repossess their property, either because it was destroyed
or because there is no willingness on the part of the authorities to let
them reintegrate19. Nor does the political situation appear better. The
State has been run by political parties bearing nationalist flags and
using nationalist rhetoric. Many war-crimes suspects are still free,
although there is a process of transferring war-crimes cases from the
ICTY to domestic courts. Judicial and prosecutorial authorities are still
supervised and instructed by international judges and prosecutors. All
these facts were sufficient reasons for the United Nations, the European
Union and the Peace Implementation Council to extend (in November 2009)
the mandate of the High Representative. There are other signs that
the international community sees no significant progress in Bosnia and
Herzegovina (for example, international military forces are still present,
as is the EUPM). On official websites, many States warn their citizens not
to travel to Bosnia and Herzegovina on safety grounds. The 2006 elections
showed that most voters still preferred nationalist rule because they
felt safe being led by “their own people”. Children in schools are
separated20, and cities that had a mixed population before the war are
still divided. On becoming a member of the Council of Europe Bosnia
and Herzegovina undertook, among other commitments, to “review within
one year, with the assistance of the Venice Commission, the electoral
legislation in the light of the CoE's standards and to revise it where
necessary.” The fact that, in spite of this commitment undertaken on
its accession to the Council of Europe, Bosnia and Herzegovina has not
yet honoured it shows that there is no consensus among leading political
parties.

In the light of the above, can one be absolutely certain of the lack
of justification for these constitutional arrangements today? On the
other hand, if they are still justified, do such arrangements pursue
a legitimate aim? As the Venice Commission has correctly pointed out,
“the distribution of posts in the state organs between the constituent
peoples was a central element of the DPA making peace in BiH possible. In
such a context it is difficult to deny legitimacy to norms that may be
problematic from the point of view of non-discrimination but necessary
to achieve peace and stability and to avoid further loss of human
lives”. Peace has been achieved, but the stability factor remains
questionable. It may be that, as pointed out by Judge Feldman of the
Bosnia and Herzegovina Constitutional Court in his concurring opinion,
“...[I regard] the justification as being temporary rather than
permanent, ... but the time has not yet arrived when the State will have
completed its transition away from the special needs which dictated the
unusual architecture of the state under the Dayton Agreement and the
Constitution of Bosnia and Herzegovina”21. In Ždanoka v. Latvia22,
the Court found that “it is not surprising that a newly established
democratic legislature should need time for reflection in a period
of political turmoil to enable it to consider what measures were
required to sustain its achievements”. In the same judgment23,
the Court further stated that the domestic authorities should be left
“sufficient latitude to assess the needs of their society in building
confidence in the new democratic institutions, including the national
parliament, and to answer the question whether the impugned measure
is still needed...” Are the special constitutional arrangements
in Bosnia and Herzegovina still deemed necessary and can the current
situation still be justified, despite the passing of time? Is it up to
the European Court of Human Rights to determine when the time for change
has arrived? I would hesitate to give a firm and definite answer to these
questions. “Identity through citizenship” would be a desirable change,
but ethnic distinction, in the Court's case-law, is considered unnecessary
and therefore discriminatory where the same result (legitimate aim) could
be achieved through a measure that does not rely on a racial or ethnic
differentiation, or on the application of criteria other than those based
on birth1. However, what other method would maintain the ethnic balance
and build the confidence that is so needed in Bosnia and Herzegovina? The
Court has not answered this question either; it concludes only that “the
applicants' continued ineligibility to stand for election to the House
of Peoples of Bosnia and Herzegovina lacks an objective and reasonable
justification and has therefore breached Article 14 taken in conjunction
with Article 3 of Protocol No. 1” (see paragraph 50 of the judgment).

Accordingly, the test of proportionality between the means employed
and the aim sought to be realised in this case has not been tried at
all. I see this as a missed opportunity to provide more decisive and
convincing arguments or at least a ground for comparison with other
member States. The law of most, if not all, member States of the Council
of Europe provides for certain distinctions based on nationality with
regard to certain rights and the Court's case-law allows a certain margin
of appreciation to national authorities in assessing whether and to what
extent differences justify a different treatment in law2. Additionally,
the scope of the margin of appreciation in the Court's case-law varies
“according to the circumstances”, as pointed out in Rasmussen
v. Denmark3. As the Court has found, “There are numerous ways of
organising and running electoral systems and a wealth of differences,
inter alia, in historical development, cultural diversity and political
thought within Europe which it is for each Contracting State to mould into
their own democratic vision”4. For the sake of the Court's case-law,
it would have been very interesting to see how far the Court would have
interpreted the margin of appreciation left to the State in this case.

VI.  COSTS AND EXPENSES

Finally, I disagree with the majority's decision to award the second
applicant EUR 20,000 in respect of costs and expenses, while the first
applicant was awarded only EUR 1,000. This discrepancy was explained by
the fact that the second applicant's team of representatives included
three international members and/or experts and that they held meetings in
New York and Sarajevo, while the first applicant was represented pro bono
and claimed only EUR 1,000 for his counsel's appearance at the hearing
before the Court28. Since the submissions of both applicants were of
comparable quality, I find it simply unfair to award them drastically
different amounts.
 
DISSENTING OPINION OF JUDGE BONELLO

On principle and in the abstract, I cannot but share the reasoning of
the majority as to the significance of non-discrimination in securing the
enjoyment of electoral rights. I voted, with major reservations, to find
the two applications admissible. But I also voted, with fewer hesitations,
against finding a violation of the Convention. These two cases may appear
to be the simplest the Court has had to deal with to date, but they
may well be, concurrently, among the more insidious. There is nothing
so obvious as finding damnable those provisions in a constitutional
set-up that prevent Roma and Jews from standing for election. So far,
an open and shut violation, hardly worth wasting time on.

Behind this invitation to get on with more challenging business, however,
lurk issues which have disturbed me deeply and to which, I confess,
I heard no satisfactory answers from the Court. Certainly, persuasive
answers exist, were the Court to shove history out of its front door. I
believe the present judgment does precisely that: it has divorced Bosnia
and Herzegovina from the realities of its own recent past.

After the extravagantly violent events of 1992 which witnessed horrific
blood baths, ethnic massacre and vendettas without frontiers, the
international community intervened: first in an attempt to achieve a
truce between Bosniacs, Serbs and Croats, and later a more permanent
settlement – the Dayton Peace Accords of 1995. These were hammered
out in protracted and persistent negotiations which aimed at creating
institutional bodies based almost exclusively on systems of checks and
balances between the three belligerent ethnicities. It was ultimately a
most precarious equilibrium that was laboriously reached, resulting in a
fragile tripartite symmetry born from mistrust and nourished on suspicion.

Only the action of that filigree construction extinguished the inferno
that had been Bosnia and Herzegovina. It may not be perfect architecture,
but it was the only one that induced the contenders to substitute dialogue
for dynamite. It was based on a distribution of powers, tinkered to its
finest details, regulating how the three ethnicities were to exercise
power-sharing in the various representative organs of the State. The
Dayton agreements dosed with a chemist's fastidiousness the exact ethnic
proportions of the peace recipe.

Now this Court has taken it upon itself to disrupt all that. Strasbourg
has told both the former belligerents and the peace-devising do-gooders
that they got it all wrong. They had better start all over again. The
Dayton formula was inept, the Strasbourg non-formula henceforth takes
its place. Back to the drawing board.

The questions I ask myself are closely linked with both the admissibility
and the merits of the two applications: does it fall within this Court's
remit to behave as the uninvited guest in peace-keeping multilateral
exercises and treaties that have already been signed, ratified and
executed? I would be the first to want the Court not to be too small
for its ideals. I would be the last to want the Court to be too big for
its boots.

A second question follows: the Court has almost unlimited powers
when it comes to granting remedies to established violations of
Convention-acknowledged human rights – and that surely is as it should
be. But do these almost unlimited powers include that of undoing an
international treaty, all the more so if that treaty was engineered by
States and international bodies, some of which are neither signatories
of the Convention nor defendants before the Court in this case? More
specifically, does the Court have jurisdiction, by way of granting relief,
to subvert the sovereign action of the European Union and of the United
States of America, who together fathered the Dayton Accords, of which
the Bosnia and Herzegovina Constitution - impugned before the Court
- is a mere annex? I do not offer facile answers to these questions,
but believe them to be cogent enough for the Court to have tackled them
preliminarily and in some depth. It did not.

Again, one cannot possibly disagree with the almost platitudinous preamble
of the Convention that human rights “are the foundation of peace in the
world”. Sure they are. But what of exceptionally perverse situations
in which the enforcement of human rights could be the trigger for war
rather than the conveyor of peace? Are the rights of the two applicants
to stand for election so absolute and compelling as to nullify the
peace, security and public order established for the entire population
– including themselves? Is the Court aware of its responsibility in
reopening the Dayton process, in order to bring it into line with its
judgment? And will it face up to the enormities of failure, should the
new Strasbourg dawn fail to turn up for its appointment?

The whole structure of the Convention is based on a primordial sovereignty
of human rights, but, saving the very core rights (to which that of
standing for election certainly does not belong), always subject to their
exercise in conformity with the rights of others and with the over-riding
social good. I cannot see the Convention wanting the applicants to stand
for election come hell or high water. Election candidates, even with
Armageddon as the price.

I would be the first to bellow how invaluable the values of equality and
non discrimination are – but then national peace and reconciliation are
at least equally so. The Court has canonised the former and discounted
the latter. With all due respect to the Court, the judgment seems to
me an exercise in star-struck mirage-building which neglects to factor
in the rivers of blood that fertilised the Dayton Constitution. It
prefers to embrace its own sanitised state of denial, rather than open
its door to the scruffy world outside. Perhaps that explains why, in
the recital of the facts, the judgment declined to refer even summarily
to the tragedies which preceded Dayton and which ended exclusively on
account of Dayton. The Court, deliberately or otherwise, has excluded
from its vision not the peel, but the core of Balkan history. The Court
felt compelled to disgrace the Dayton constitution, but has not felt
compelled to put something equally peace-salving in its place.

I also question the Court's finding that the situation in Bosnia and
Herzegovina has now changed and that the previous delicate tri-partite
equilibrium need no longer prevail. That may well be so, and I just hope
it is. In my view, however, a judicial institution so remote from the
focus of dissention can hardly be the best judge of this. In traumatic
revolutionary events, it is not for the Court to establish, by a process
of divination, when the transitional period is over, or when a state of
national emergency is past and everything is now business as usual. I
doubt that the Court is better placed than the national authorities
to assess the point in time when previous fractures consolidate, when
historical resentments quell and when generational discords harmonise. I
find that claims such as these, arguably based on self-delusory wishful
thinking, show little or no respect for the inexhaustible resources of
rancour. The Court does ill to shut its mind to histories in which hate
validates culture.

The Court has ordered the respondent State to fling the Dayton accords
in the liquidizer and then to start looking for something else. I,
for my part, doubt that any State should be placed under any legal
or ethical obligation to sabotage the very system that saved its
democratic existence. It is situations such as these that make judicial
self-restraint look more like a credit than a flaw.

The Court has repeatedly accepted that the enjoyment of the majority of
basic human rights – not least, the right to stand for election –
is subject to intrinsic restrictions and extrinsic curtailment. It can
be abridged for objective and reasonable considerations. The exercise of
fundamental rights can suffer limitations for the purposes of security and
public order and in keeping with the general interest of the community. It
can shrink as a consequence of exceptional historical realities, such as
terrorism and organised crime or in the aftermath of national emergencies.

Strasbourg has, over the years, approved quite effortlessly the
restriction of electoral rights (to vote in or stand for elections) based
on the widest imaginable spectrum of justifications: from absence of
language proficiency29 to being in detention30 or having previously been
convicted of a serious crime31; from a lack of “four years' continuous
residence”32 to nationality and citizenship requirements33; from being
a member of parliament in another State34 to having double nationality35;
from age requirements36 to being below 40 years old in senate elections37;
from posing a threat to the stability of the democratic order38 to
taking the oath of office in a particular language;39 from being a
public officer40 to being a local civil servant;41 from the requirement
that would-be candidates cannot stand for election unless endorsed by
a certain number of voters' signatures42 to the condition of taking an
oath of allegiance to the monarch.43

All these circumstances have been considered sufficiently compelling by
Strasbourg to justify the withdrawal of the right to vote or to stand for
election. But a clear and present danger of destabilising the national
equilibrium has not. The Court has not found a hazard of civil war,
the avoidance of carnage or the safeguard of territorial cohesion to
have sufficient social value to justify some limitation on the rights
of the two applicants.

I do not identify with this. I cannot endorse a Court that sows ideals
and harvests massacre.

1 Bosniacs were known as Muslims until the 1992-95 war. The term
“Bosniacs” (Bošnjaci) should not be confused with the term
“Bosnians” (Bosanci) which is commonly used to denote citizens of
Bosnia and Herzegovina irrespective of their ethnic origin.

2 Members of the House of Peoples of the Federation of Bosnia and
Herzegovina are appointed by the Cantonal parliaments (the Federation of
Bosnia and Herzegovina consists of ten Cantons). Members of the Cantonal
parliaments are directly elected.

3 Members of the National Assembly of the Republika Srpska are directly
elected.

4 Ms Nystuen participated in the Dayton negotiations and the preceding
constitutional discussions as a legal adviser to the European Union
Co-Chairman of the International Conference on the Former Yugoslavia, Mr
Bildt, who was heading the European Union delegation within the Contact
Group. Thereafter, until 1997, she worked as a legal adviser to Mr Bildt
in his capacity as High Representative for Bosnia and Herzegovina.


5 Mr O’Brien participated in the Dayton negotiations as a Contact
Group lawyer, as well as in most major negotiations concerning the former
Yugoslavia from 1994 to 2001.

6 Since all human beings belong to the same species, ECRI rejects
theories based on the existence of different “races”. However, in
this Recommendation ECRI uses this term in order to ensure that those
persons who are generally and erroneously perceived as belonging to
“another race” are not excluded from the protection provided for by
the legislation.

7 See the powers of the State Presidency in the Constitution, Article V 3.

8 In this judgment, the standpoint that it applies to both direct and
indirect elections has been explained only by the travaux préparatoires
for Protocol No. 1; see paragraph 40 of the judgment.

9  See Article IV of the BiH Constitution

10 This is about the distinction between the notions of “election”
and “selection”: linguistically, while “election” implies an
unlimited choice, “selection” implies a preferable/limited one.

11 There is only one exception, which stipulates that members of the
cantonal houses of peoples are to be appointed from among the members
of cantonal parliaments.

12 As noted above, talks began in 2006 on constitutional reform
(the “April Package”), but these were unsuccessful (the “April
Package”). Talks have now been reopened (the “Butmir Package”)., but
it appears that the politicians are sticking to their previous positions.


13  See paragraph 41 of the judgment.

14 Article IV 4 of the BiH Constitution – Powers The Parliamentary
Assembly shall have responsibility for:

(a) Enacting legislation as necessary to implement decisions of the
Presidency or to carry out the responsibilities of the Assembly under
this Constitution.

(b) Deciding upon the sources and amounts of revenues for the operations
of the institutions of Bosnia and Herzegovina and international
obligations of Bosnia and Herzegovina.

(c) Approving a budget for the institutions of Bosnia and Herzegovina.

(d) Deciding whether to consent to the ratification of treaties.

(e) Such other matters as are necessary to carry out its duties or as
are assigned to it by mutual agreement of the Entities.

15 See the BiH Constitution, Article IV 3 c.

16 Ibid., Article IV 3 e.

17 The BiH Constitution provides (Article IV 2) that “the House of
Representatives shall comprise 42 Members, two-thirds elected from
the territory of the Federation, one-third from the territory of the
Republika Srpska” and “Members of the House of Representatives shall
be directly elected from their Entity in accordance with an election
law to be adopted by the Parliamentary Assembly”.

18 See http://www.amnesty.org/en/region/bosnia-herzegovina/report-2009.

19 See http://www.mhrr.gov.ba/izbjeglice/?id=6.

20 See Council of Europe Monitoring Report, 2008, SG/Inf(2008)2.


21 See Concurring opinion of Judge Feldman to the decision
of the Constitutional Court of BiH AP-2678/06-2006,
http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid=67930.

22 See Ždanoka v. Latvia [GC], no. 58278/00, § 131, ECHR 2006-IV .

23 Ibid, § 134.


24 See Inze v. Austria, 28 October 1987, § 44, Series A no. 126.

25 See Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, Series A
no. 113 and Yumak and Sadak v. Turkey [GC], no. 10226/03, 8 July 2008.

26 See Rasmussen v. Denmark,  28 November 1984, § 40, Series A no. 87.

27 See Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX.

28 See paragraph 64 of the judgment.


29 Clerfayt et al. v. Belgium, no. 27120/95, Commission
decision of 8 September 1997, (DR) 90, p. 35.

30 Holland v. Ireland, no. 24827/94, Commission decision of 14 April 1998,
(DR) 93, p. 15.

31 H. v. Netherlands, no. 9914/82, Commission decision of 4 July 1983,
(DR) 33, p.242.

32 Polacco and Garofalo v. Italy, no, 23450/94, Commission decision of
15 September 1997, (DR) 90, p. 5.

33 Luksch v. Italy, no. 27614/95, Commission decision of 21 May 1997,
(DR) 89, p. 76.

34 M. v. the United Kingdom, no. 19316/83, Commission decision of 7
March 1984, (DR) 37, p. 129.

35 Ganscher v. Belgium, no. 28858/95, Commission decision of 21 November
1966, (DR) 87, p. 130.

36 W, X, Y and Z v. Belgium, nos. 6745 and 6746/74, Yearbook XVIII
(1957), p. 236.

37 Ibid.

38 Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006-IV.

39 Fryske Nasjonale Partij et al v. The Netherlands, no. 11100/84,
Commission decision of 12 December 1985, (DR) 45, p. 240.

40 Gitonas and Others v. Greece, 1 July 1997, § 40, Reports of Judgments
and Decisions 1997-IV.

41 Ahmed and Others v. the United Kingdom, 2 September 1998, § 75,
Reports 1998-VIA.

42 Asensio Serqueda v. Spain, no. 23151/94, (DR) 77, p. 122.

43 McGuinness v. the United Kingdom (dec.), no. 39511/98, ECHR 1999-V.


SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA SEPARATE OPINIONS

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA JUDGMENT 

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA 
  JUDGMENT – SEPARATE OPINIONS

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA  
 JUDGMENT – SEPARATE OPINIONS

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA  
 JUDGMENT – SEPARATE OPINIONS

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA  
 JUDGMENT – SEPARATE OPINIONS

SEJDIĆ AND FINCI v. BOSNIA AND HERZEGOVINA  
 JUDGMENT – SEPARATE OPINIONS

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