MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1428/H46-6

9 March 2022

1428th meeting, 8-9 March 2022 (DH) Human rights   H46-6 Sejdić and Finci group v. Bosnia and Herzegovina (Application No. 27996/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)870, CM/ResDH(2021)42, CM/Del/Dec(2021)1419/H46-7

 

Application	Case	Judgment of	Final on	Indicator for the classification
27996/06	SEJDIĆ AND FINCI	22/12/2009	Grand Chamber	Complex problem
3681/06	ZORNIĆ	15/07/2014	15/12/2014
56666/12	ŠLAKU	26/05/2016	26/05/2016
41939/07	PILAV	09/06/2016	09/09/2016
55799/18	Pudarić	08/12/2020	08/12/2020

Case description

These cases concern discrimination against the applicants on account of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (i.e. Bosniaks, Croats or Serbs) or due to their failure to meet a combination of the requirements of ethnic origin and place of residence (violations of Article 1 of Protocol No. 12).

In accordance with the Constitution of Bosnia and Herzegovina, only persons declaring affiliation with a “constituent people” are entitled to stand for election to the Presidency, which consists of three members: one Bosniak and one Croat, each directly elected from the Federation of Bosnia and Herzegovina, and one Serb directly elected from the Republika Srpska.

The applicants in these cases were ineligible to stand for election to the Presidency of Bosnia and Herzegovina because, in the case of Sejdić and Finci, they are of Roma^[1] and Jewish origin, in Šlaku and Zornić, of Albanian and undeclared origin respectively, and in Pilav and Pudarić, because the applicants are a Bosniak living in the Republika Srpska, and a Serb living in the Federation of Bosnia and Hercegovina. 

The cases (apart from Pilav and Pudarić) also concern violations of the right to free elections and discrimination against the applicants who were ineligible to stand for election to the House of Peoples of Bosnia and Herzegovina due to their lack of affiliation with a constituent people (a violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1).

In Zornić and Šlaku, the Court under Article 46 of the Convention, noted that “[i]n Sejdić and Finci the Court observed that when the impugned constitutional provisions were put in place a very fragile ceasefire was in effect on the ground and that 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” was necessary to ensure peace… However, now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina.”

Status of execution

Necessity to amend the Constitution and the electoral legislation: In order to fully enforce the judgments of the European Court of Human Rights it is necessary to amend the Constitution of Bosnia and Herzegovina as well as the electoral legislation. However, in order for these amendments to be adopted, the country’s political leaders need to reach an agreement on their scope and content.

The Committee of Ministers’ examination of this group of cases: The Committee has been following this group very closely since the European Court delivered the leading Grand Chamber judgment in 2009 and has adopted numerous decisions and four interim resolutions (in 2011, 2012, 2013 and 2021) calling on the authorities and political leaders to bring the constitutional and legislative framework into line with Convention requirements. Notwithstanding the Committee’s interventions and the extensive support offered to the authorities by both the Council of Europe and the European Union[2] (“the EU”), the Committee has noted with profound concern that three general elections have been held under discriminatory rules, in 2010, 2014 and 2018.

The Committee examined this group at each of its DH meetings in 2021 given that the next general elections should take place in October 2022. On 9-10 November 2021, the Secretariat carried out a mission to Bosnia and Herzegovina to continue the dialogue with the national authorities, political leaders and representatives of the international community about the execution of the present judgments. All the interlocutors indicated serious concern about the non-execution of the Court’s judgments expressing at the same time their commitment to contributing to their full and effective implementation. The respondent State’s authorities were urged to bring forward the ongoing electoral reform process so that the 2022 general elections are carried out in Convention-compliant conditions. At the same time, the availability of the Council of Europe, notably the Venice Commission, to provide all necessary assistance to the authorities in order to ensure the timely adoption of these reforms was reiterated.

The Committee’s last examination of this group of cases: On 2 December 2021, at its 1419^th meeting (DH), the Committee adopted an interim resolution reiterating once again its gravest concern that the authorities and political leaders of Bosnia and Herzegovina had not yet achieved a consensus on the content of the required amendments to be introduced in the Constitution of Bosnia and Herzegovina and the electoral legislation despite the repeated calls of the Committee. The Committee exhorted the authorities of Bosnia and Herzegovina and political leaders of Bosnia and Herzegovina to deploy all their efforts to reach a consensus on the necessary amendments to the Constitution and the electoral legislation so that the elections in October 2022 are held in full and effective compliance with the European Court’s judgments.

No information has been provided to the Committee in response to the above interim resolution.

Developments following the December 2021 DH meeting: There have been several meetings between the political leaders in Bosnia and Herzegovina, with the help of international community and support from the Venice Commission Secretariat, to reach an agreement on constitutional and electoral amendments which would, inter alia, implement the present group of cases. On 21 January 2022, the High Representative for Bosnia and Herzegovina issued a statement recalling, inter alia, that a modern election law that ensures transparent elections according to established democratic standards and in line with decisions of the European Court of Human Rights is in everyone’s interest.

Rule 9.2 communication: In its communication dated 13 January 2022 (DH-DD(2022)106), Minority Rights Group International indicated that for twelve years, despite several opinions issued by the Venice Commission, guidance by civil society organisations as well as international community, no progress has been made to implement the present judgments. It called on the Committee to adopt a strongly worded interim resolution, including a timeline for implementation which sets out detailed milestones with specific deadlines for any task force, working group or other body mandated by the government of Bosnia and Herzegovina to undertake the necessary reforms which should include the representatives from non-constituent minority groups.

Analysis by the Secretariat

At the outset, it is recalled that in its interim resolution adopted at the December 2021 DH meeting, the Committee decided to resume examination of these cases at the March 2022 DH meeting, and should no tangible progress be achieved by then, affirmed its readiness to take new action to ensure that the respondent State abides fully and effectively by its obligations deriving from the Court’s judgments.

At the time of drafting the present notes, no tangible progress has been reported. In particular, it seems that despite the considerable efforts made by the international community and the Secretariat of the Venice Commission, during the past months in facilitating discussions at national level there has been no agreement by the country’s political leaders on the content of the necessary constitutional and legislative amendments.

Even though the necessity of amending the country’s Constitution is widely acknowledged among political parties in Bosnia and Herzegovina and the authorities have repeatedly announced to the Committee of Ministers their readiness to execute the present judgments, it appears that due to the absence of a political agreement, it is now probable that the fourth general elections (foreseen for October 2022) since the Sejdić and Finci judgment will be held in a constitutional and legislative context in violation of the European Convention.

In view of the above, the Committee might wish, in line with its last interim resolution, to decide on new action to be taken with a view to ensuring that the respondent State abides fully and effectively by its obligations deriving from the Court’s judgments. It is recalled that a summary of the means at the disposal of the Committee of Ministers in the context of its supervision of the execution of judgments of the Court is contained in document DH-DD(2020)840.

Financing assured: YES