MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1521/H46-7

6 March 2025

1521st meeting, 4-6 March 2025 (DH) Human rights   H46-7 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(2024)1497, CM/Del/Dec(2024)1501/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

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, because the applicant is a Bosniak living in the Republika Srpska.[2]

The cases (apart from Pilav) 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, 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. Notwithstanding the Committee’s interventions and the extensive support offered to the authorities by both the Council of Europe and the European Union, four general elections have been held under discriminatory rules, in 2010, 2014, 2018 and 2022. The Committee has so far used a wide range of tools with a view to addressing the situation. This has included the adoption of five interim resolutions (in 2011, 2012, 2013, 2021 and 2023); the issuing of a declaration by the Chair;[3] the examination of these judgments at each of the Committee’s Human Rights meetings;[4] sending a letter from the Chair;[5] inviting member States, observer States and the European Union to raise the case in their contacts with Bosnia and Herzegovina;[6] and inviting the competent Minister for an exchange of views on the strategy for these cases.[7]

Developments following the last elections: On 29 November 2022, the leaders of a dozen political parties signed a coalition agreement^[8] (“Guidelines, principles and goals in the executive and legislative power for the period 2022 – 2026”). Pursuant to this document, they, inter alia, agreed to adopt, within six months following the formation of governments at all levels in Bosnia and Herzegovina at the latest, “limited changes” to the Constitution of Bosnia and Herzegovina and adopt amendments to the Election Law of Bosnia and Herzegovina in accordance with the judgments of the European Court. On 25 January 2023, these parties formed a new government at the State level (the Council of Ministers), while on 14 February 2024 the government of Canton 10 in the Federation of Bosnia and Herzegovina was formed, thus finalising the process of formation of governments at all levels.

The Committee’s last examination of this group: In its decision adopted at the 1501^st meeting (June 2024) (DH), the Committee, inter alia, recalling the coalition agreement of 29 November 2022 signed by leaders of several political parties, noted that the process of formation of governments had been finalised at all levels, and that the six-month deadline set in the agreement for the changes to the relevant legislation started to run on 14 February 2024. It insisted firmly therefore on the utmost importance of instantly relaunching the electoral reform work, while emphasising that in line with the Court’s judgments, the full implementation of this group of cases cannot be achieved solely by amendments to the electoral legislation, but would ultimately also require changes to the Constitution.

It urged the authorities again to submit information in writing on the measures taken to implement the present group of judgments and reiterated once again the Council of Europe’s willingness to assist the authorities and urged them to take advantage of all expertise available within the Organisation, notably the Venice Commission. Finally, it renewed its invitation to the competent Minister of the Council of Ministers of Bosnia and Herzegovina to hold an exchange of views with the Committee at their DH meeting in March 2025.

On 24 December 2024, the Chair sent a letter to the Minister of Foreign Affairs, informing him of the renewed invitation extended by the Committee to the competent minister. A response is awaited.

Communication from the authorities: In their communication dated 19 December 2024 (DH-DD(2024)1497), the authorities informed the Committee that the authorities of Bosnia and Herzegovina had held a series of meetings in an effort to reach an agreement on amendments to the Constitution and the Election Law. The Joint Collegium of both Houses of Parliamentary Assembly of Bosnia and Herzegovina also requested information from the Council of Ministers of Bosnia and Herzegovina on the activities that have been undertaken in the meantime to implement this group of cases, and this information is awaited. Finally, they reiterated the commitment to fulfill their international obligations.

Rule 9.2 communication: In their joint communication dated 14 January 2025 (DH-DD(2025)83), Human Rights Watch and Minority Rights Group called on the Committee to adopt a strongly worded interim resolution calling upon the authorities to adopt without delay the measures necessary for the implementation of this group of cases, and to stipulate that representatives from non-constituent minority groups should participate in any task force, working group or other body established for the purpose of implementation of this group. They also urged the Committee to consider imposing sanctions on Bosnia and Herzegovina for prolonged failure to abide by its international obligations.

Recent recommendations of the Council of Europe: In its report on Bosnia and Herzegovina published in

June 2024 (ECRI(2024)16), the European Committee against Racism and Intolerance recommended, as a matter of priority, that the authorities take determined action to comply with these judgments. In its report published in June 2024 (ACFC/OP/V(2023)5), the Advisory Committee on the Framework Convention for the Protection of National Minorities, urged again the authorities to move forward rapidly with efforts to implement the present judgments, noting that a strategy for implementation needs to be drawn up as a matter of priority, and subsequently implemented, in co-operation with persons belonging to national minorities.[9] In its Resolution 2574(2024) adopted in October 2024, the Parliamentary Assembly of the Council of Europe called on the authorities of Bosnia and Herzegovina to bring the electoral legislation in line with the Convention and ensure the equality and non-discrimination of citizens. In a Rule 9.4 communication from April 2023 (DH-DD(2023)552), the former Council of Europe Commissioner for Human Rights had also expressed her great concern that, fourteen years since the delivery of the leading judgment, the impugned discriminatory provisions remained in the country’s Constitution and electoral legislation, amplifying ethnic divisions in the country.

The position of the European Union (EU): In October 2024 the European Commission published its 2024 Progress Report recalling that as part of its Opinion on its application for EU membership applications (key priority 4.f), Bosnia and Herzegovina needs to urgently adopt constitutional and electoral reforms to ensure that all citizens are able to effectively exercise their political rights, notably to bring the country’s Constitution into line with these judgments. In a column published in January 2025, the Head of the EU Delegation/EU Special Representative in the country, Mr Luigi Soreca, noted that the country passed a milestone of 15 years since the leading judgment. He recalled that the Constitution and Election Law are features of the country’s Dayton system of governance that will have to change on the path to the EU to end discrimination in line with European Court’s judgments and wondered whether 2025 will be the year in which the country shows determination to move forward on the path from Dayton to Brussels.[10]

The position of the High Representative for Bosnia and Herzegovina: In his report to the Secretary-General of the United Nations from November 2024, the High Representative noted that the commitments to reform the Constitution of Bosnia and Herzegovina to implement the present group of cases, “have shown no results so far”. Political parties and authorities in the country “have taken no initiative in this regard showing little interest to act despite repeated calls by the international community and [himself] as High Representative urging them to implement the judgments” to eliminate discrimination. He noted that in the upcoming period he would invite all stakeholders to launch an initiative aimed at implementing this group of cases.[11]

Analysis of the Secretariat

Despite the repeated assurances by the authorities of Bosnia and Herzegovina over the past 15 years (including in the coalition agreement of 29 November 2022 between the leaders of several political parties), the necessary constitutional and legislative amendments have still not been made. Moreover, time is running out for the authorities to bring the Constitution and electoral legislation of Bosnia and Herzegovina in compliance with the Convention before the upcoming 2026 elections.

As the Committee has already underlined,[12] the failure to do so would not only amount to a manifest breach of obligations under Article 46, paragraph 1, of the Convention but would also seriously undermine the legitimacy and the credibility of the country’s future elected bodies - which would be elected for a fifth time under legislation found to be contrary to the Convention - and would ultimately represent a threat to democracy in Bosnia and Herzegovina and the credibility and effectiveness of the Convention machinery.

It is a matter of utmost concern that the six-month deadline set by the domestic political parties in the above-mentioned coalition agreement to bring the relevant legislation in line with the Convention passed in August 2024 without any concrete progress being reported. Although the authorities have provided information about some meetings held in an effort to reach an agreement on necessary reforms, nothing has been submitted about the form of these meetings, any concrete results, or the activities undertaken by the Council of Ministers of Bosnia and Herzegovina in response to the request made by the Joint Collegium of both Houses of Parliamentary Assembly of Bosnia and Herzegovina (mentioned above).

It is therefore urgent to find new ways and means of progressing with the adoption of all constitutional and legislative reforms necessary to bring the electoral system into line with the Convention requirements. The authorities need to devise a concrete action plan, with a clear timeframe and without further delay, with a view to finding rapidly a solution to the present situation. In the same vein, the Committee might once again wish to invite the member States, observer States and the European Union to raise in their contacts with the authorities of Bosnia and Herzegovina the crucial importance of the implementation of the present group of judgments in good time for the 2026 elections.

Lastly, the authorities might be urged to provide information on the above points by 30 June 2025. The Committee might examine these cases at its DH meeting in December 2025 at the latest, and in the absence of tangible progress, to consider at that meeting taking new action aimed at strengthening its political dialogue and co-operation with the authorities of Bosnia and Herzegovina to ensure the effective execution of these judgments.

Financing assured: YES