Under the Dayton Peace Accords, only those belonging to one of the three Constituent Peoples of Bosnia and Herzegovina—Bosniaks, Croats or Serbs—are permitted to stand for election to the House of Peoples or for the Presidency. This excludes members of the 14 other national minorities in the country. The European Court of Human Rights found that this amounted to discrimination. (Keywords: Discrimination - Political Participation - Citizenship)
Dervo Sejdić and Jakob Finci are citizens of Bosnia and Herzegovina (BiH). Sejdić is Roma and Finci is Jewish. They wanted to stand for elected office. On February 10, 2006 and January 3, 2007, they received written confirmation from the Central Election Commission that they were ineligible to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly because of their ethnic origins.
The Constitution of BiH created under the Dayton Peace Accords reserves participation in some of the key state decision-making bodies to its "constituent peoples"—namely Serbs, Croats, and Bosniaks. As a result, people of other ethnic origins are excluded from, for instance, the House of Peoples and the Presidency.
They challenged this situation in the domestic courts. The Constitutional Court of BiH delivered two decisions in March and May 2006 stating that it had no competence to decide whether any Constitutional provisions (or laws under them) conformed with the European Convention on Human Rights. Applications were then submitted to the European Court of Human Rights in 2006.
Sejdić and Finci argued that despite possessing experience comparable to that of the highest elected officials, they were prevented by the Constitution of BiH and the Election Act 2001 from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. This meant that they had been prohibited from participating in public life in a discriminatory manner, in violation of Article 14 ECHR (non-discrimination) taken together with Article 3 of Protocol No.1 ECHR (right to free elections), as well as Article 1 of Protocol No. 12 ECHR (general prohibition of discrimination).
The Open Society Justice Initiative filed written comments in the case before the European Court of Human Rights.
Political Participation as an element of Citizenship. Political participation represents one of the rights and responsibilities that maintains the legal bond between a citizen and a State. In most jurisdictions, the rights to vote, to be elected and to stand for office are what most clearly distinguishes a citizen from an alien. Restrictions on these rights, particularly on the suspect grounds of race and ethnicity, are not only discriminatory, but undermine the meaning of citizenship itself.
Marginalization. Aside from being an important right linked with citizenship, political participation is particularly important for ethnic minorities and essential to their integration. This is particularly true following an ethnic conflict, where legally entrenched distinctions based on ethnicity can exacerbate tensions, rather than foster the constructive and sustainable relations between all ethnicities that are essential to a viable multiethnic state.
2006. Applications filed with the European Court of Human Rights.
August 15, 2008. Written Comments filed by Open Society Justice Initiative.
February, 10, 2009. Jurisdiction relinquished to the Grand Chamber.
June, 3, 2009. Public hearing held before the Grand Chamber.
December 22, 2009. Judgment delivered by Grand Chamber.
By a vote of 14 votes to three, the Grand Chamber of the European Court of Human Rights found that the applicants' continued ineligibility to stand for election to the House of Peoples of BiH lacked an objective and reasonable justification and was therefore discriminatory, in breach of Article 14 taken in conjunction with Article 3 of Protocol 1.
The Court also held, by 16 votes to one, that there had been a violation of Article 1of Protocol 12 as regards the applicants' ineligibility to stand for election to the Presidency of BiH. This case is the first ruling by the Court under Protocol 12.
This landmark ruling strikes at the heart of the power-sharing arrangements established under the Dayton Peace Agreement and assesses the compatibility of peace-making mechanisms with the fundamental principle of non-discrimination within the Convention. The court found that while the urgent need to restore peace at the time of the agreement could explain the absence of representatives of other communities at the peace negotiations, the maintenance of the current system fifteen years after the fact no longer satisfied the requirement of proportionality.
Implementation will require a vital review of the Constitution. The next presidential and parliamentary elections are due to take place in October 2010.