MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-7

13 June 2024

1501st meeting, 11-13 June 2024 (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)428, CM/ResDH(2023)481, CM/Del/Dec(2023)1483/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, and because the applicants are a Bosniak living in the Republika Srpska, and a Serb living in the Federation of Bosnia and Herzegovina.

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, 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 five interim resolutions (in 2011, 2012, 2013, 2021 and 2023) calling on the authorities and political leaders to bring the constitutional and legislative framework into line with Convention requirements. 

The Committee examined this group at each of its DH meetings in 2021 as well at its first two DH meetings in 2022 given that the next general elections were expected to take place in October 2022. The group was examined again three times in 2023. Notwithstanding the Committee’s interventions and the extensive support offered to the authorities by both the Council of Europe and the European Union,^[2] four general elections have been held under discriminatory rules, in 2010, 2014, 2018 and 2022.

Developments following the last elections: On 29 November 2022, the leaders of a dozen political parties signed a coalition agreement^[3] (“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.

In its Resolution 2483(2023) dated 26 January 2023, the Parliamentary Assembly of the Council of Europe called on the newly constituted authorities to undertake the constitutional and electoral reforms to bring the Constitution into line with the European Convention, complying with the Sejdić and Finci group of cases.

The Committee’s last examination of this group of cases: In its interim resolution adopted at the 1483^rd meeting (December 2023) (DH), the Committee exhorted the authorities and the 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. The Committee strongly urged them to submit by 15 April 2024 information in writing on the measures taken to implement the present group of judgments. Furthermore, the Committee decided to invite the competent Minister of the Council of Ministers of Bosnia and Herzegovina for an exchange of views at its 1501^st meeting (June 2024) (DH).

On 20 March 2024, the Chair sent a letter to the Minister of Foreign Affairs, informing him of the invitation extended by the Committee to the competent minister.

On 25-26 March 2024, the Department for the Execution of Judgments met with national authorities in Sarajevo (the Minister of Justice, representatives of the Ministry of Human Rights and Refugees, and the chief of cabinet of the Chairwoman of the Council of Ministers of Bosnia and Herzegovina) as well as representatives of the international community to continue the dialogue about the execution of the present judgments. During these meetings the Committee’s invitation for an exchange of views to the competent minister of the Council of Ministers of Bosnia and Herzegovina was recalled. A formal response is still awaited.

Subsequently, in their communication dated 15 April 2024 (DH-DD(2024)428), the authorities informed the Committee that they are fully committed to fulfilling their obligations under the Convention. They noted that the Ministry of Justice had drafted amendments to the Election Law of Bosnia and Herzegovina (“Draft Law”) which were submitted for public consultations on 22 March 2024. The authorities expressed hope to receive constructive comments on the the Draft Law, notably on solutions aimed at implementation of this group through changes of the electoral legislation (i.e. without changing the Constitution). They notably proposed amendments aimed at ensuring the integrity of electoral process, and the manner of the election of the Croat member of the Presidency. These amendments nevertheless contain a provision indicating their “temporary nature”, pending the harmonisation of the Constitution with the present judgments. However, on 26 March 2024 the High Representative for Bosnia and Herzegovina imposed[4] amendments to the Election Law, focusing solely on issues pertaining to the integrity of the electoral process. The authorities finally noted that the applicant in the case of Pudarić (no. 55799/18) had passed away prior to the delivery of the judgment of the European Court in his case, and thus invited the Committee to close the examination of that case. 

It was reported in the media that on 17 April 2024 the leaders of several political parties of the ruling coalition agreed to continue talks on electoral reform, including the introduction in the Parliament of a new Draft Law, which would replace the amendments imposed by the High Representative, mentioned above. 

Rule 9.1 communication: In her communication dated 4 April 2024 (DH-DD(2024)394), the applicant in Zornić reflected, inter alia, on the proposed Draft Law noting that it would not implement the Court’s judgment in her case.

Analysis of the Secretariat

Individual measures: It is recalled that the necessary individual measures (to enable the applicants to stand in elections) are closely linked with the general measures. At this stage, the Committee might wish to decide to close the examination in Pudarić case for which no further individual measures are possible, given that the applicant has passed away.

General measures: The Committee might recall again with utmost concern that, as a direct result of the absence of measures taken by the respondent State as obliged under Article 46 of the Convention, to date four general elections have been held under the same regulatory framework which the European Court found to be discriminatory, despite the repeated calls of the Committee over the past 14 and a half years, including in its five Interim resolutions.

It is welcome that in the most recent communication, as well as during the Secretariat’s consultations with the authorities of Bosnia and Herzegovina on 25-26 March 2024, the authorities reiterated their full commitment to comply with this group of judgments. It is also positive that following the coalition agreement of 29 November 2022 signed by leaders of several political parties, the process of formation of governments has now been finalised at all levels. As a result, it appears that the six months’ deadline for the adoption of limited amendments to the Constitution and to the electoral legislation in order to implement the present judgments started to run on 14 February 2024.

In light of this, the Committee might again wish to insist firmly on the utmost importance of instantly relaunching the electoral reform work in particular bearing in mind the need to maximise the time-limited possibility to amend the Constitution. At the same time the authorities should pursue all consultations necessary aimed at eliminating discrimination based on ethnic affiliation or failure to meet a combination of ethnic affiliation and place of residence in elections for the Presidency and the House of Peoples of Bosnia and Herzegovina. Given the communication received by the authorities, the Committee might wish to emphasise, as previously recalled on many occasions, that in line with the European Court’s judgments the full implementation of this group of cases cannot be achieved solely by amendments to the electoral legislation but will ultimately also require changes to the Constitution.

The willingness of the Council of Europe, notably the Venice Commission, to assist by all available means the authorities of Bosnia and Herzegovina in meeting their obligations under Article 46 of the Convention to rapidly reach a consensus on the required electoral system reform might be reiterated once again by the Committee. 

Lastly, the authorities may be urged again to submit information in writing on the measures taken to implement the present group of judgments.

Financing assured: YES