Provisions of the Bosnian and Herzegovinian Constitution restricting the ability to run for the Presidency or the House of Peoples to the three “constituent peoples,” Bosniacs, Serbs, and Croats, violates the European Convention on Human Rights, the European Court of Human Rights held on December 22, 2009.
In Sedjić and Finci v. Bosnia and Herzegovina, two otherwise qualified Bosnian and Herzegovinian citizens, one Jewish, the other Roma, were deemed ineligible to run for the Presidency and the House of Peoples, solely because of their ethnicity. The Court determined that the contested constitutional provisions violate several Convention provisions, including Article 14, the prohibition of discrimination, together with Protocol No. 1 Article 3, the right to free elections, and Protocol No. 12 Article 1, the general prohibition of discrimination.
Annexed to the 1995 Dayton Peace Accords, which ended the ethnic conflict, the Bosnian and Herzegovinian Constitution distinguishes between two categories of citizens: “constituent peoples” and “others.” The Constitution requires that the House of Peoples be composed of 15 members, equally divided among each of the three constituent groups. One member of each group comprises the three-member rotating Presidency. Individuals who do not identify themselves as Bosniacs, Croats or Serbs, like the applicants in this case, are forbidden from running for these offices.
At the time of the Constitution’s enactment, mandating equal representation of the warring groups in the Presidency and the upper parliamentary house promoted the peace-keeping aims of the Dayton Peace Accords. The Court reasoned, however, that because the extreme ethnic tension between these three groups has considerably stabilized in recent years, such limitations are no longer necessary.
While acknowledging that a complete abandonment of the power-sharing mechanisms may not be suitable at this time, the Court proposed that Bosnia and Herzegovina could replace the discriminatory provisions with “mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities.” For example, the lower parliamentary house, the House of Representatives, ensures representation of both of the state’s political territories, the Federation of Bosnia and Herzegovina and the Republika Srpska. The Constitution requires that two-thirds of the House of Representatives be selected from the Federation of Bosnia and Herzegovina while the other third be chosen from the Republika Srpska, regardless of ethnicity. Mandating regional representation rather than specific ethnic groups may preserve peace between the entities without excluding non-constituent groups.
The effect of the Court’s decision on constitutional reform in Bosnia and Herzegovina remains to be determined. Debates on constitutional reform began in 2005, but have yielded no significant changes thus far. Most recently, in October 2009, U.S.-EU brokered talks in Butmir failed to produce meaningful agreement, casting uncertainty on the ability of the Court’s decision to instigate real change. Elections for the Presidency and House of Peoples will next be held in October 2010.