Amending the Discriminatory “Others” in Bosnia’s Constitution: Fifteen years since Sejdic and Finci

Bosnia and Herzegovina’s (Bosnia) Constitution disappointingly remains as one of the few

Constitutions in the world which explicitly discriminates against its citizens on the grounds of

race and ethnicity. Its Preamble begins by affirming respect for human dignity and equality,

yet a few paragraphs beneath this, Bosniacs [1], Croats and Serbs are defined as “constituent

peoples” whilst all other ethnicities are reduced to the derogatory label of “Others”.

An “Other” in Bosnia is refused the enjoyment of rights that “constituent peoples” have. For

example, they cannot stand for election to the House of Peoples [2] which is the first chamber

of the Parliamentary Assembly. Instead, these roles can only be filled by five Bosniacs, five

Croats and five Serbs. This is the same for the role of Presidency, which only consists of one

Bosniac, one Croat and one Serb. Whilst ethnic minorities are able to join the House of

Representatives, which is the second chamber, the top positions of chair and deputy chair

are only afforded to Bosniacs, Croats and Serbs.

It is crucial to mention here that these “Others” refer to approximately 400,000 individuals,

which amounts to 12% of the population. Despite being citizens of Bosnia, they are denied

the right to participate in the political scene of their country. Political participation is

paramount for ethnic minorities so that they can challenge legislation that affects them and

reduce their marginalisation.

Why is this the case? Bosnia’s Constitution was formed as part of the Dayton Agreement in

1995 where the sole aim was the establishment of peace between Bosniacs, Serbs and

Croats following the devastating war which resulted in genocide and ethnic cleansing. It was

necessary, at that time, for the House of Peoples and the Presidency to consist of Bosniacs,

Croats and Serbs only so that they could engage in dialogue and harmony. Because the

Constitution was formed in a unique manner, it was drafted and adopted without the correct

application of procedures which could have provided democratic legitimacy.

However, this justification is irrelevant today. It has been almost thirty years since the

Constitution was formed, and Bosnia has become signatory to various international human

rights treaties such as the ECHR, CERD, CESCR and more. As it continues to move

towards accession to the European Union, the ECtHR correctly asserted that Bosnia should

now be assessed against the “yardstick of common European standards” rather than the

context of the Dayton Agreement thirty years ago.

This is exceptionally necessary because throughout its Constitution, Bosnia boasts about the

importance of implementing human rights. Under Article 1(2), all the rights and freedoms set

forth in the European Convention for the Protection of Human Rights and Fundamental

Freedoms and its Protocols (The Convention) apply directly in Bosnia and have priority over

all other law. Yet Bosnia refuses to act on the rulings of the ECtHR which has consistently

held that Bosnia has violated human rights through the arbitrary distinction it makes between its citizens. The entirety of Article 2 of its Constitution is focused on Human Rights and

Fundamental Freedoms, and paragraph 4 of the Article, which is titled ‘Non-Discrimination’,

states that the rights and freedoms stated in the Constitution applies to all individuals in

Bosnia “without discrimination on any ground such as...race”. Despite this, minority ethnic

citizens are not able to enjoy the same rights as Bosniacs, Croats and Serbs.

The ECtHR decision in Sejdic and Finci:

In this landmark case of 2009, two citizens of Bosnia, Sejdic and Finci, claimed that they

were ineligible to stand for election to the House of Peoples and the Presidency of Bosnia on

the ground of their Roma and Jewish origin.

Bosnia’s government maintained the same justifications, arguing that this exclusion from the

Constitution must be assessed against the background of the Dayton Agreement. Although

the Court appreciated that the exclusion had the initial aim of restoring peace, Bosnia

experienced significant positive developments since the Dayton Agreement such as gaining

membership to the Council of Europe in 2002, joining NATO’s partnership for peace in 2006

and ratifying a stabilisation and association agreement with the European Union in 2008.

Through this, Bosnia voluntarily committed itself to ensure full compliance with the ECHR

and the Council of Europe; but to achieve this, constitutional reform is necessary.

In this case, the Court held that Bosnia had violated the claimants’ Article 14 right

(prohibition of discrimination), their Article 3 of Protocol No.1 right (right to free elections) and

their Article 1 of Protocol No.12 right (general prohibition of discrimination).

Although both claimants were citizens of Bosnia and held prominent public positions, they

were denied the right to political participation on the grounds of their ethnicity. It has almost

been fifteen years since this landmark decision, yet Bosnia has shown no eagerness to

amend its Constitution.

“Constituent peoples” can become “Others”:

Whilst “Others” refers to ethnic minorities, it also extends to Bosniacs, Croats and Serbs

depending on the area of their residence. Under Article 5 of the Constitution, Presidency is

only awarded to one Bosniac and one Croat directly elected from the territory of the

Federation and one Serb directly elected from the territory of the Republic Srpska. [3] Article

8.1 of the Election Act 2001 additionally confirms this. This means that a Bosniac or a Croat

who lives in the Republic of Srpska cannot apply for Presidency and a Serb who lives in the

territory of the Federation cannot apply for Presidency.

This happened in the case of Pilav, a Bosniac who was refused candidacy for Presidency

because he lived in Srebrenica, a town in the Republic Srpska. Although he belonged to one

of the “constituent peoples”, he would have to leave his home and move to the Federation of

Bosnia in order to exercise his right of applying for Presidency. His appeal to the Bosnian

Court, which relied on Article 1 of Protocol No.12 to the Convention (general prohibition of

discrimination) did not succeed as the judgment, similar to Sejdic and Finci, justified the

restrictions by referencing the unique circumstances of the Dayton Agreement.

The ECtHR ruled in this case in 2016 and held that Article 1 of Protocol No.12 was violated

because although Pilav was categorised as one of the “constituent peoples”, he was

excluded from election to Presidency as a result of the impugned residence requirement.

The Court agreed that the exclusion was based on both his ethnicity and his place of

residence which both served as grounds for discrimination under Article 1 of Protocol No.12.

Despite the groundbreaking rulings of the ECtHR in the two cases discussed, the Bosnian

government maintains that the claims were unjustified because the restrictions in the

Constitution are reasonable. The restrictions are nothing but discriminatory and damaging.

By refusing to act on the decisions of the ECtHR and on the advice of other international

organisations, Bosnia withholds justice to not only its minority ethnic citizens but also to

Bosniacs, Croats and Serbs who are unable to run for election to the House of Peoples or

Presidency because they live in the wrong area.

When Pilav appealed to the Bosnian Court, Judge Feldman regarded the justification of the

restriction as being “temporary rather than permanent”. However, it has been eighteen years

since he stated this, fifteen years since the ruling in Sejdic and Finci and thirty years since

the Dayton Agreement. Now must be the time for Bosnia to transition away from justifying

racial and ethnic discrimination and move towards securing the fundamental human rights

and freedoms of its citizens.

[1]: Bosniacs were known as Muslims until the 1992-95 war. This term should not be confused with “Bosnians” which refers to all citizens of Bosnia and Herzegovina, irrespective of their ethnic origin.

[2]: The House of Peoples enjoys wide powers over the passing of legislation. Under Article 4(3) of the Constitution, no legislation can be adopted without the approval of both chambers.

[3]: Bosnia has two constituent entities: the Federation of Bosnia and the Republic Srpska.

References:

1. Constitution of Bosnia and Herzegovina, 1995

2. Convention for the Protection of Human Rights and Fundamental Freedoms (Council

   of Europe Treaty Series No.005, 1950)

3. Election Act 2001, Bosnia and Herzegovina

4. Sejdic and Finci v Bosnia and Herzegovina App nos. 27996/06 and 34836/06

   (ECtHR, 22 December 2009)

5. Pilav v Bosnia and Herzegovina App no 41939/07 (ECtHR, 09 June 2016)

6. Lopez Domenech B, ‘Leaving Dayton for Brussels: Reviving Bosnia’s Constitutional

   reform’ (European Politics and Institutions Programme Discussion Paper, 28 June

   2023)

   <https://www.epc.eu/en/publications/Leaving-Dayton-for-Brussels-Reviving-Bosnias-constitutional-reform~51eca8> accessed 01 December 2024

7. ‘Bosnia and Herzegovina: Ethnic Discrimination a Key Barrier’ (Human Rights Watch,

   12 December 2019)

   <https://www.hrw.org/news/2019/12/13/bosnia-and-herzegovina-ethnic-discrimination-key-barrier> accessed 27 November 2024

8. ‘More than 400,000 BH citizens cannot candidate for Presidency’ (Women Citizens

   for Constitutional Reform, 15 April 2019)

   <https://womencitizensforconstitutionalreform.wordpress.com/2019/04/15/more-than-400-000-bh-citizens-cannot-candidate-for-presidency/> accessed 27 November 2024

9. ‘Skirting around equality: 14 years after Sejdic and Finci v Bosnia and Herzegovina’

   (Minority Rights Group, 20 September 2023)

   <https://minorityrights.org/skirting-around-equality-14-years-after-sejdic-and-finci-vs-bosnia-and-herzegovina/> accessed 26 November 2024