Bosnian Constitution Contravenes ECHR

Just before Christmas the European Court of Human Rights issued a very important Grand Chamber judgment in the case of Sejdić and Finci v. Bosnia and Herzegovina. The two men complained of their ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina because of their Roma and Jewish origin. The Bosnian Constittuion, which was drafted as part of the very complex Dayton Peace Agreements in 1995, confines the possiblity to be elected to these top state institutions to those who declare themselves to belong to the Serb, Croat or Bosniac (i.e. Muslim) people. So called 'others', to whom Sejdić and Finci themselves belong can be elected in parliament, but not in the two aforementioned institutions.

The case is legally rather simple in the sense that the discrimination in the Bosnian constitution - outright exclusion of certain groups on the basis of declared ethncity- is tantalizingly clear. Indeed the Court had no qualms in finding violations of both the right to stand for election (Article 3 of Protocol No. 1 ECHR) in conjunction with the prohibtion of discrimination of Article 14 ECHR in regard to the House of Peoples and to a violation of Article 1 of Protocol 12 regarding the possiblity to stand for election for the Presidency.

However, the case is special in at least three respects. Firstly, it is the very first time the Court found a violation of the general non-discrimination provision of Protocol 12. It is now clarified once and for all that the way of testing discrimination under this Protocol will be done in the same way and with the same legal methodology as under Article 14. Secondly, this is the first time - as far as I am aware - that the Court finds that a part of a country's highest law - its constitution (but correct me if I am wrong) - contravenes the ECHR. Thirdly, the case is politically extremely sensitive as the Court tested part of a peace agreement, which had come about after a very bloody war and protracted negotiations. It is on these issues that the Court makes some interesting remarks, although one must conclude that the political context is not given a very large role in its considerations, because of the absolute nature of the ban on 'others' which makes the differential treatment entirely disproportionate.