An estimated 400,000 Bosnians, 12 percent of the population, cannot run for president or parliament because of their religion, ethnicity, or where they live. The constitution also bans people who do not wish to declare an ethnic identity from running for the highest office. One person who brought a case before the European court is a Bosniak (Muslim) doctor, a survivor of the genocide in Srebrenica, which is in the part of the country where only Bosnian Serbs can run for the member of the tripartite presidency, which has one member from each of the main ethnic groups.
“It’s outrageous that a European country has had a constitution that has been discriminating against its own citizens for 24 years,” said Clive Baldwin, senior legal adviser at Human Rights Watch. “Bosnian authorities should stop prioritizing the main ethnic groups’ interests over equal rights for all citizens and amend the discriminatory constitution.”
Baldwin was one of the lawyers who represented one of the applicants in the first European court case.
The constitution – drafted by European and American experts as part of the Dayton Peace Agreement that ended the war in Bosnia in 1995 – privileges the three main ethnic groups – Bosniaks, Croats, and Serbs – labelling them “constituent” people. The constitution refers to 17 national minorities, including Jews and Roma, as “others” and denies them the right to run for the presidency and the House of Peoples, the upper house of parliament. Bosnia is still believed to be the only country in the world with a constitution that labels some of its citizens as “others.”
On December 22, 2009, the European Court ruled that the Bosnian constitution directly discriminates against minorities by not allowing their equal participation in democratic elections. The case was brought by a Bosnian Roma, Dervo Sejdić, and a Bosnian Jew, Jakob Finci.
But the constitution has not been amended since this landmark ruling, and three general elections have been held under the discriminatory constitution and election law.
In advance of the 10-year anniversary of the ruling, Human Rights Watch spoke with Sejdić and Finci, as well as lawyers and applicants involved in subsequent cases.
Sejdić sees a direct connection between the discriminatory constitution and continued marginalization and discrimination against Bosnian Roma, the country's largest national minority. “Changing the constitution would lead to greater political participation of the Roma population in [Bosnia and Herzegovina], and I believe that all other aspects would significantly improve,” he said. “If Roma representatives are present and participate in discussions and decision-making then for sure Roma-relevant topics will be discussed more among circles where decision-making is taking place.”
Sejdić cited a case in which funds for internally displaced people were to be divided three ways until a Roma observer in the meeting objected that decision. Finci also noted that because of the lack of political will, there has been no action for restitution of property taken from Jews during the Holocaust or Communist periods.
Attempts to reform the constitution and laws have failed, and the process has stalled since 2016.
The international community, including the United States, the United Kingdom, Germany, and France, which were engaged in creating the Dayton Peace Agreement and the discriminatory constitution, have a responsibility to continue looking for solutions and to press Bosnian officials to end discrimination, Human Rights Watch said.
The European Union has a particular influence and responsibility to press for reform, notwithstanding the stalled EU enlargement process that has kept Bosnia and Herzegovina from moving toward membership. EU institutions and member states should signal to the Bosnian government that closer EU ties and cooperation with EU states depend on an end to discrimination in the constitution.
In its latest Bosnia progress report, in May, the European Commission said that Bosnia should comply with the Sejdić -Finci ruling and ensure equality for citizens. The commission also said that Bosnia should amend the discriminatory Law on the Human Rights Ombudsman, which similarly discriminates based on ethnicity, nationality, and residence.
The Council of Europe should use available mechanisms to push Bosnia to comply with the court rulings.
Bosnian officials should immediately resume work on creating the task force for constitutional reforms and involve the Council for National Minorities and relevant experts in putting the human rights rulings into effect.
“European states and the US helped draft this constitution that makes thousands of Bosnians second-class citizens,” Baldwin said. “Those same states should therefore help end this discrimination.”
For additional details about the ruling, please see below.
Over the years, Human Rights Watch has pressed for urgent change of the Bosnian constitution’s discriminatory provisions and election law. Its 2012 report “‘Second Class Citizens’: Discrimination against Roma, Jews, and Other National Minorities in Bosnia and Herzegovina” documented discrimination against national minorities in politics and highlighted the effects of exclusion on lives of Roma in accessing basic services.
Between August and November 2019, Human Rights Watch interviewed four applicants from the relevant European Court of Human Rights cases and their lawyers. Human Rights Watch also met with officials of the Institution of the Human Rights Ombudsman and Council of National Minorities for Bosnia and Herzegovina, the Organization for Security and Cooperation in Europe in Bosnia, and the EU Delegation in Bosnia. Telephone interviews were conducted with the Department for the Execution of Judgments of the European Court and Bosnian Central Election Commission.
Discrimination in Sejdić-Finci and Other Cases
In 2006, prominent members of the Roma and Jewish communities in Bosnia, Dervo Sejdić and Jakob Finci, submitted complaints to the European Court concerning discriminatory provisions in the constitution that prevented them from running for the presidency and for the House of Peoples on the basis of race, religion, and belonging to a national minority.
The case was supported by Minority Rights Group International and the Human Rights and Genocide Clinic at the Benjamin N. Cardozo School of Law.
On December 22, 2009, the court found that the Bosnian constitution violated Protocol Number 12 and article 14 of the European Convention on Human Rights, which prohibit discrimination based on sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status.
In 2016, the Court similarly ruled that the constitution discriminates against a Bosnian-Albanian, Samir Šlaku, in not allowing him to run for the House of Peoples and the presidency.
In other cases that followed, the court found that the Bosnian constitution also discriminates based on ethnicity and place of residence.
In the 2014 decision Zornić v. Bosnia and Herzegovina, the court found that the constitution discriminates against citizens who do not declare any ethnic affiliation with one of the constituent peoples.
In the 2016 case Pilav v. Bosnia and Herzegovina, the court found Bosnia guilty of discriminating against Ilijaz Pilav, a Bosniak surgeon from Srebrenica and a genocide survivor, when it rejected his presidential candidacy based on the election law provision that reserves the right to run for president in the Republika Srpska entity, where Srebrenica is located, to Bosnian Serbs.
Damir Arnaut, a legal representative in Pilav’s case, told Human Rights Watch in August:
The Central Election Committee answered bluntly to Pilav that he doesn’t qualify because he is a Bosniak. There is something very humiliating and demeaning about that insensitive response to an applicant for candidacy for state presidency.
The same type of discrimination exists in the Federation of Bosnia and Herzegovina (Federation BiH) entity, where Bosnian Croats and Bosniaks are the majority, against ethnic Serbs living there. The court is currently examining a case brought by Svetozar Pudarić, a Bosnian Serb residing in the Federation BiH with 13 years of experience in politics who was denied the right to run for the presidency in the 2018 elections because that right is reserved only for Bosniaks and Bosnian Croats.
Pudarić said in October:
Around 400,000 people are discriminated against. All Serbs who live in Federation [BiH], all Croats and Bosniaks who live in Republika Srpska, Serbs in District Brcko [a local self-governing area] who opted for elections in Federation [BiH], Bosniaks and Croats in Distrcit Brcko who opted for elections in Republika Srpska, all national minorities, and all those who don't want to declare belonging to any ethnic group and just want to be citizens of Bosnia and Herzegovina. Twelve percent of Bosnians are discriminated against in this way.
Being locked out of important political decision-making means that minority groups like the Jewish community in Bosnia cannot directly advocate for addressing relevant issues that politicians otherwise overlook. Finci said that one of the major issues facing the Jewish community in Bosnia is the lack of political will to provide restitution of Jewish property taken during the Holocaust and Communist era, some of which is being used by public institutions. The value of property taken from Jewish families could be as much as a few billion euros, according to Finci, who does not see how Bosnia could be let into the EU before returning to the Jewish community what was forcibly taken away from them in World War II.
Sejdić gave another illustration of why participation matters. In 2009, a government commission created to disperse 21 million Bosnian convertible marks (10.75 million euros) to internally displaced people proposed to divide the amount equally among Bosniaks, Croats, and Serbs. A Roma with observer status on the commission successfully argued for funds (ultimately 3 million Bosnian convertible marks) to also be allocated to assist returns of displaced Roma. “If she hadn’t been there this wouldn’t have happened,” he said. “When you are included in decision-making and having the right to vote on decisions then progress happens faster and better.”
Discrimination extends to the Office of the Human Rights Ombudsman, an institution with three Ombudsmen seats charged with ensuring respect for human rights, including the right to nondiscrimination. Under the law creating the institution, Bosnian Serb candidates from Federation BiH and Bosniak and Croat candidates from Republika Srpska may not be candidates. While the law allows the possibility of appointing members from “the others” category identified in the constitution, so far only Bosniak, Serb, and Croat Ombudsmen have been appointed.
The Ombudsman Law should be amended to allow all Bosnians to run for membership on this important national human rights body based on their qualifications, and not ethnicity.
Attempts to Carry Out the Ruling
In the most recent attempt to carry out the court decisions and amend the constitution, in 2015, the Council of Ministers, the country’s executive branch, adopted an Action Plan to carry out the Sejdić-Finci and Zornić judgments. It called for creating a task force to prepare the constitutional and electoral law amendments to be approved by the Council of Ministers and sent to the legislative branch.
But the task force has not been formed, and the lack of political will has stalled the reform process.
The Bosnian Serb member of the presidency and the leader of the main Bosnian Serb ethnic party, Milorad Dodik, openly said in 2017 and again in 2018 that Sejdić-Finci should not be carried out and that he no longer supports it. The main Bosnian Croat ethnic party, and a proponent of further ethnic separation through the creation of a third, Croat, entity, is advocating for changes in the election law that would not solve the issue of discrimination against Jews, Roma, and other minorities.
Sejdić believes there are many reasons for stalled implementation of the court’s ruling in his case. EU institutions should have insisted on holding discussions about carrying out rulings in the Bosnian parliament where decisions need to take place – and where some members are not even aware of the rulings – rather than in a European metropolis far away from Sarajevo. He said that politicians have not had sufficient consultations with constitutional law experts or people directly affected by the discriminatory provisions in the Constitution to take the debate further: “Inclusion of us ‘non-constituent’ people in discussions was minimal. No one asked us, ‘the others,’ anything.”
Irena Hadžiabdić, former president and current member of the Bosnian Central Election Commission, contends that it is not possible to change the election law without first reforming the constitution, leaving the commission with no other option but to hold elections based on discriminatory election law. Hadžiabdić told Human Rights Watch in October:
It’s not very gratifying holding elections and knowing without a doubt that elections that we are holding will be assessed to be discriminatory. In advance we know that we will receive a negative grade. Yes, in that sense we have inexcusable and unjustifiable discrimination. This was maybe justified right after the war, but it's been too long to allow this level of discrimination in a state that wants to be a democracy.
Hadžiabdić, who as the commission president in 2010, 2011, 2017, and 2018 was responsible for organizing elections, could not run in the Bosnian presidential race if she wanted to because she is a member of a national minority. “The constitution and election law don't reserve those rights to me,” Hadžiabdić said.
The international community, notably the EU member states and the US, who were largely responsible for the Dayton Agreement, should continue to put pressure on Bosnian authorities to amend the constitution and introduce equality and justice in the divided society.
Human Rights Watch has previously recommended that the EU condition Bosnia’s accession to EU membership on constitutional amendments to carry out the Sejdić-Finci ruling, and to support Bosnian authorities in that reform process. But EU institutions and member states have failed to put concerted pressure on Bosnian authorities to make the change, allowing Bosnia to conclude a Stabilization and Association Agreement with the EU in 2015, for example, without resolving the issue.
The EU enlargement process as a whole is currently stalled. But given Bosnia’s interests in closer ties with the EU and its geographic location, EU institutions and member states have a continued influence in the country and have a responsibility to exercise that influence to seek a resolution of the issue, Human Rights Watch said.
Eva Pasic Juhas, a member of the Council for National Minorities at the Bosnian Parliament, an advisory body consisting of 1 representative from each of the 17 national minorities groups, said:
The EU is still best positioned to do something. This council was established in 2013 only because it was a requirement to get the free visa regime to the EU. Because visa-free access to the EU is something that they all want here they agreed on some changes in return. Conditioning them with something that they really want is the only way to get them to do anything.
Bosnian authorities should take immediate steps to remove discriminatory provisions from the Bosnian constitution and create an equal society where all citizens can participate in shaping the future of their country, Human Rights Watch said.