Thursday 7 January 2010

Part of Bosnian Constitution Contravenes ECHR

Just before Christmas the European Court of Human Rights issued a very important Grand Chamber judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina. The two men complained of their ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina because of their Roma and Jewish origin. The Bosnian Constittuion, which was drafted as part of the very complex Dayton Peace Agreements in 1995, confines the possiblity to be elected to these top state institutions to those who declare themselves to belong to the Serb, Croat or Bosniac (i.e. Muslim) people. So called 'others', to whom Sejdić and Finci themselves belong can be elected in parliament, but not in the two aforementioned institutions.

The case is legally rather simple in the sense that the discrimination in the Bosnian constitution - outright exclusion of certain groups on the basis of declared ethncity- is tantalizingly clear. Indeed the Court had no qualms in finding violations of both the right to stand for election (Article 3 of Protocol No. 1 ECHR) in conjunction with the prohibtion of discrimination of Article 14 ECHR in regard to the House of Peoples and to a violation of Article 1 of Protocol 12 regarding the possiblity to stand for election for the Presidency.

However, the case is special in at least three respects. Firstly, it is the very first time the Court found a violation of the general non-discrimination provision of Protocol 12. It is now clarified once and for all that the way of testing discrimination under this Protocol will be done in the same way and with the same legal methodology as under Article 14. Secondly, this is the first time - as far as I am aware - that the Court finds that a part of a country's highest law - its constitution (but correct me if I am wrong) - contravenes the ECHR. Thirdly, the case is politically extremely sensitive as the Court tested part of a peace agreement, which had come about after a very bloody war and protracted negotiations. It is on these issues that the Court makes some interesting remarks, although one must conclude that the political context is not given a very large role in its considerations, because of the absolute nature of the ban on 'others' which makes the differential treatment entirely disproportionate. Let me quote the relevant paragraphs in full here:

45. (...) 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.
For the applicants the outcome is no doubt good news. As one of them, Mr Finci, told the Bosnian Oslobodenje newspaper: "It has been confirmed that our constitution and electoral system are not in line with the European Human Rights Convention and it is now up to us to correct it." It is to be awaited how the Bosnian political establishment will now react. Although it is technically possible to change the constitution in such a way that the rights of the 'others' in Bosnia are also respected, it remains a politically sensitive issue - to say the least. Tensions have been rising in the past year, not only among the different local politicans, but also between them and the international administration which still holds important powers in Bosnia. Let us hope that the dissenting judges in the ECHR judgment will not see their worst fears - destabilization of Bosnia or worse - come true. This judgment is an inevitable step in the process of the re-instauration of the rule of law in Bosnia - very difficult but crucial.

The Amicus Curiae brief of the Venice Commission of the Council of Europe in this case can be found here. See also the summary and analysis of Marko Milanovic on the discussion forum of the European Journal of International Law and reactions there. A press release by Human Rights Watch can be found here.