MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-7

2 December 2021

1419th meeting, 30 November – 2 December 2021 (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 CM/ResDH(2013)259, CM/ResDH(2012)233, CM/ResDH(2011)291, CM/Del/Dec(2021)1411/H46-8

 

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 the Zornić and Šlaku judgments, the Court indicated, under Article 46 of the Convention, that “the finding of a violation in the present case was the direct result of the failure of the authorities of the respondent State to introduce measures to ensure compliance with the judgment in Sejdić and Finci”.

The Court furthermore indicated that “the failure of the respondent State to introduce constitutional and legislative proposals to put an end to the current incompatibility of the Constitution and the electoral law with [the Convention] is not only an aggravating factor as regards the State’s responsibility under the Convention for an existing or past state of affairs but also represents a threat to the future effectiveness of the Convention machinery” (§ 40, Zornić and § 37, Šlaku).

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 three interim resolutions (in 2011, 2012 and 2013) 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’s last decision: At its 1411^th meeting (14-16 September 2021) (DH), the Committee noted with utmost concern that, as a result of the absence of measures taken, almost 12 years after the Sejdić and Finci judgment, there is a clear and growing risk that the fourth general elections since this judgment (foreseen for October 2022) will be held in a constitutional and legislative context which will not be in compliance with the European Convention’s requirements and the respondent State’s obligations under Article 46. The Committee noted further that as of 23 July 2021 the Inter-Agency working group, composed of members designated by the House of Peoples, the House of Representatives, and the Council of Ministers of Bosnia and Herzegovina and tasked with the preparation of amendments to the electoral legislation had held a number of sessions to discuss electoral changes including “limited constitutional amendments” reportedly relevant for the execution of present judgments. Noting however with serious concern that the Inter-Agency working group has not been convened since 23 July 2021 and has not yet put forward any concrete proposals, the Committee exhorted the respondent State’s authorities and national stakeholders engaged in the electoral reform process to take steps in order to ensure that the Inter-Agency Working group resumes its work as a matter of priority; urged in this context the respondent State’s authorities to immediately reinforce their dialogue and cooperation with the Committee of Ministers and the Secretariat to bring forward the process for the execution of the Court’s judgments so that the 2022 general elections are carried out in Convention-compliant conditions. Lastly, the Committee decided to resume examination of these cases at its 1419th meeting (December 2021) (DH), and should no tangible progress be achieved by then, instructed the Secretariat to prepare a draft interim resolution for their consideration at that meeting.

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

Developments following the September 2021 DH meeting:

It is recalled that, following a series of developments concerning amendments to the criminal law pertaining to the 1992-1995 war (unrelated to the present cases) prominent Serb parties and politicians in Bosnia and Herzegovina initiated a boycott of State level institutions[3].  It would appear that this boycott was continuing at the time of the preparation of the present notes.

On 21 October 2021, the European Commission published its 2021 Bosnia and Herzegovina Report 2021 (SWD(2021)291 final/2), stressing that Bosnia and Herzegovina’s Constitution remains in breach of the European Convention on Human Rights, following the Sejdić-Finci and related cases as well as stating that significant reforms are needed to ensure that all citizens are able to effectively exercise their political rights and thus bring the country’s constitutional and legislative framework into line with the Sejdić-Finci case-law of the European Court.

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 expressed 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.

It was reported that the Inter-Agency Working group’s session was convened for 10 November 2021 but was not held due to lack of quorum.

Analysis by the Secretariat

At the outset, it is recalled that at its September 2021 DH meeting, the Deputies decided to resume examination of these cases at their 1419th meeting (December 2021) (DH), and should no tangible progress be achieved by then, instructed the Secretariat to prepare a draft interim resolution for their consideration at that meeting.

At the time of drafting the present notes, it would appear that no draft proposal on amendments to the Constitution and Election Law has been developed so far in order for the 2022 elections to take place under Convention-compliant conditions. It also appears that the Inter-Agency working group has not held any session since 23 July 2021, despite the Committee’s last decision exhorting the respondent State’s authorities and national stakeholders engaged in the electoral reform process to take steps in order to ensure that the Inter-Agency Working group resumes its work as a matter of priority. Thus, no tangible progress in the execution process has been reported, even though during the Secretariat’s mission to Sarajevo on 9-10 November 2021 the national authorities and political leaders reiterated their full commitment to the full and effective execution of the Court’s judgments.

In light of the above, the Secretariat prepared the attached draft interim resolution in line with Committee’s last decision.

Financing assured: YES