by Annamaria Racota

On December 22, 2009, in a 14 to 3 vote, the European Court of Human Rights held in Sejdić and Finci v. Bosnia and Herzegovina that the racial or ethnic-based exclusion of Jews and Roma from Bosnia’s highest elected offices constituted unlawful discrimination. Both applicants are Bosnian citizens and prominent public figures: Jakob Finci, a Jew, and Dervo Sejdić who is of Roma origin. The Central Election Commission found Finci ineligible to run for the presidency and the House of Peoples of the Parliament Assembly because he was a Jew.

Drafted during the Dayton Peace Agreement in 1995, the Preamble of the Bosnian Constitution draws a distinction between two categories of citizens: “constituent peoples” which are Bosniaks (Bosnian Muslims), Croats, and Serbs, and “others” which are Jews, Roma, and other minorities. This distinction was included in the Constitution in an effort to appease the “constituent peoples” and thereby restore peace and end the ethnic cleansing taking place at the time.

In support of the applicants’ claim that the particular provision of the Constitution was undemocratic and discriminatory, Sheri P. Rosenberg, co-counsel to Finci, cited Article 3 (the prohibition of inhuman and degrading treatment), Article 13 (the right to an effective remedy), and Article 14 (the prohibition of discrimination) of the European Convention on Human Rights (ECHR), as well as Article 3 of Protocol No. 1 (the right to free elections) and Article 1 of Protocol No. 12 (the general prohibition of discrimination) to the ECHR.

In its analysis, the Court recognized that the situation in Bosnia and Herzegovina had improved since the Dayton Peace Agreement, it was still necessary to draw a distinction between the citizens of Bosnia, given the lack of proportionality between the ethnic minorities in the government.  The Court agreed with the Venice Commission, one of thee interveners in the case, that power-sharing mechanisms existed, which do not require the total exclusion of one group of citizens. In addition, the Court acknowledged that by joining the Council of Europe in 2002, Bosnia and Herzegovina ratified the ECHR and its Protocols and agreed to adhere to the relevant standards. Furthermore, by ratifying the Stabilization and Association Agreement with the European Union in 2008, it promised to amend the electoral legislation regarding members of the presidency and House of Peoples delegates to ensure full compliance with the ECHR within the next two years.

This case is unprecedented, marking the first time that the Court applied the Council of Europe’s anti-discrimination laws, i.e. Protocol No. 12, to member states. Also, according to Lucy Claridge, Head of Law at Minority Rights Group International, this judgement has far reaching effects because it “can be used by other minorities who lack electoral rights in other European states.”

Although the Court’s decision is binding on the Bosnian government, it will require a significant constitutional change granting equal political participation to all minorities in the country. As a result, there is skepticism that the ruling will achieve actual change. Amending the constitution requires political agreement among the various parties, an unprecedented occurrence, and it is unlikely that such an agreement will be reached in the near future.