Peacemaking or Discrimination: Bosnia’s Dayton Constitution before the European Court of Human Rights

A hearing will be held this Wednesday before the Grand Chamber of the European Court of Human Rights in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (press release here). A Venice Commission amicus brief is available here. A webcast of the hearing will be available here on Wednesday afternoon.

The applicants are Bosnian nationals, who are respectively Roma and Jewish by their ethnicity. They complain because, despite possessing experience comparable to the highest elected officials, they are prevented by the Constitution of Bosnia and Herzegovina from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins. They invoke, inter alia, Article 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 to the Convention (right to free elections) and Article 1 of Protocol No. 12 to the Convention (general prohibition of discrimination).

In brief, the Dayton settlement of the Bosnian conflict divided some of the institutions of the state government by ethnicity, so that the three member Presidency must be comprised of one each ethnic Serb, Croat and Bosniak/Bosnian Muslim. Further, one chamber of the Bosnian parliament, the House of Peoples, is comprised of 15 members, 5 of whom have to be from each of the three ‘constitutive’ peoples. The two applicants thus complain that, being Roma and Jewish respectively, they cannot stand for election for either the Presidency or the House of Peoples. In their view, this is clearly prohibited discrimination on grounds of ethnicity.

It is very likely that this will be the first case that the European Court will decide on the merits on the basis of Protocol 12, which introduced a general prohibition of discrimination into the ECHR system. Prior to that, the prohibition of discrimination in Article 14 was only of accessory character, meaning that the legal right or interest in respect of which discrimination was being alleged had to fall within the scope of one of the ECHR provisions. The relevance of this limitation is apparent from the instant case – Art. 3 of Protocol 1 to the ECHR only guarantees the right to vote and to stand for election for a legislature – but the Presidency of Bosnia and Herzegovina is not a legislature. Art. 14 could thus not be invoked in this regard, but Protocol 12 could be, because it sets out a general prohibition of discrimination, in respect of any right set forth by (domestic) law.

As far as the merits of the discrimination claim are concerned, the Court has in its Article 14 jurisprudence established that discrimination constitutes (1) a difference in treatment of persons or groups who are in a similar situation, (2) that has no objective and reasonable justification. In order for there to be such a justification, the treatment concerned must (a) be implemented for the pursuance of a legitimate aim, and (b) must be proportionate to that aim. Further, some grounds of distinction, such as ethnicity, race or gender, are by their very nature suspect, and particularly weighty reasons would have to be adduced by a state to justify them.

If we applied the Court’s test to the present case, there would undoubtedly be a difference in treatment on grounds of ethnicity (1). When it comes to the question whether there is a justification for such differential treatment, there would again undoubtedly be a legitimate aim for it (2(a)) – the establishment and maintenance of peace in post-conflict Bosnia. The question to be decided by the Court, therefore, is whether this distinction is proportionate to that aim (2(b)).

How the Court is going to answer this question is anyone’s guess. Aside from the general problem of commensurability that is inherent in all balancing tests, the proportionality inquiry in the present case clearly requires a value judgment. On the one hand, every liberal atom of one’s being cries out against discrimination based on ethnicity. On the other, there is the indisputable fact that Bosnian society is still markedly divided on ethnic lines (which, of course, measures like the ones above serve to both control and perpetuate). Then there is the whole question of whether an international court sitting in Strasbourg is best called upon to make this value judgment, or whether that judgment should still, for the time being at least, be the province of (what goes for) democratic political process in Bosnia.

At any rate, this is a case to watch.