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Bosnia and Herzegovina: Ensuring the political participation of minorities

20 November 2016

Finci v Bosnia and Herzegovina

The electoral system in Bosnia and Herzegovina (BiH) is based on a strict division into Bosniak, Croats and Serbs who are defined as the nation’s ‘Constituent Peoples’. This system excludes all other citizens (known as ‘Others’), including Jews, Roma and other national minorities who have lived in BiH for centuries, from standing for election to either the three-member presidency or the House of Peoples of the Parliamentary Assembly.

MRG represented Mr. Finci, a member of the Jewish minority, before the European Court of Human Rights (ECtHR), challenging the discrimination resulting from his inability to stand for election to the Presidency or the House of Peoples.  This was joined with the case of Dervo Sejdic, a member of the Roma community.  In 2009, the case was referred to the ECtHR’s Grand Chamber.  Later that year, the Grand Chamber found BiH to be in breach of Protocol 12 of the European Convention on Human Rights (ECHR), which provides for the right to equal treatment and non-discrimination, in failing to allow its citizens who are not ‘Constituent Peoples’ to stand for election to the presidency.

The ECtHR also found a violation of Article 14 of the ECHR, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol 1, which protects free elections to the legislature, as a result of the inability of ‘Others’ to stand for election to the House of Peoples.  The judgment represents the first time that the ECtHR has considered how Protocol 12 of the ECHR should be applied to potentially discriminatory situations.

However, the ruling has not been implemented to date.   MRG has been working actively to secure its implementation, through international advocacy at the Council of Europe, EU and UN. In October 2013, a high level political meeting was held between representatives of the Bosnian Government and the European Commission, and it was agreed that the former would implement the ruling in Finci v Bosnia and Herzegovina. The case therefore complements and furthers work already conducted under the programme in relation to Finci and also MRG’s Bosnia programme.

However the parties failed to implement the agreed by the envisaged deadline.  As a result, The European Commission has curbed financial funding provided to Bosnia by half.  Though Bosnia and Herzegovina is still reluctant to implement the ruling, the agreements made to facilitate the implementation still remain valid and the government is obliged to put them into operation. MRG continues to advocate at the international level for implementation and is considering innovative ways to progress options for implementation. This has included a request to the Council of Europe to commence infringement proceedings against BiH for failing to implement the decision.

In July 2014, in a related case, the ECtHR ruled in favour of Ms. Zornić, a Bosnian citizen who is prevented from standing for high office because she refuses to declare affiliation to any particular ethnic group. The Court reaffirmed that it is unacceptable in present day Bosnia to have a political system granting special rights to particular ethnic groups ‘to the exclusion of minorities or citizens, and ruled that Bosnia’s Constitution and electoral laws violate fundamental human rights and must be changed without any further delay’.

In addition, the Court found it important to consider the case under Article 46 of the Convention, linking the current violation to the non-implementation of the Sejdic and Finci v Bosnia and Herzegovina decision, calling for ‘speediest and most effective resolution of the situation’

Key documents:

Photo: Jakob Finci.