European Court Rules Bosnia's Political Exclusion of Jews and Roma Discriminatory

On Dec. 22, the European Court of Human Rights ruled that the restriction of the highest political offices in Bosnia and Herzegovina to members of the country's three main groups was a violation of the right to free and fair elections and freedom from discrimination under the European Convention on Human Rights.

The case of Sejdic and Finci v. Bosnia and Herzegovina concerned the exclusion from the Bosnian presidency and the upper house of parliament of Dervo Sejdic, a Bosnian Roma and Jakob Finci, a Bosnian Jew. As a member state of the Council of Europe, Bosnia is legally bound to implement the court's ruling.

"The European Court has made it clear that race-based exclusion from political office, such as that suffered by Jews and Roma in Bosnia, has no place in Europe," said Clive Baldwin, a senior legal adviser at Human Rights Watch and former co-counsel for Finci. "The US, EU and the other states who still play a major role in Bosnia, should ensure the ruling is put into immediate effect by backing a change in the constitution."

Drafted by negotiators during peace talks in Dayton, Ohio in 1995, the Bosnian Constitution established representation for the country's three "constituent peoples" --Bosniaks, Serbs, and Croats-- at every level of government in Bosnia's postwar political system. At the time of the negotiations, these measures were viewed as necessary, but power-sharing provisions for members of the belligerents' communities effectively banned all others from running for high office.

The Strasbourg court acknowledged that the constitution was conceived with "the legitimate aim of restoring peace," but added that Bosnia committed under an association agreement signed with the European Union in 2008 to bring its electoral rules into compliance with the European Convention on Human Rights.

The dissenting opinion in the case came from Judge Giovanni Bonello of Malta, who argued the current system was a safeguard against conflict that should not be altered. "The Court felt compelled to disgrace the Dayton constitution, but has not felt compelled to put something equally peace-salving in its place," he wrote. "I cannot endorse a Court that sows ideals and harvests massacre."

Bosnian official were not surprised by the ruling. "We knew for a long time that our constitution and election law was not in accordance with the European Convention," said Jadranka Nejodic, Bosnia's ambassador to the UK. "We know this judgment is legally binding and as soon as we have received and read the judgment – it's 57 pages – a timetable will be set for implementing it."

The Organization for Security and Cooperation in Europe's Mission to Bosnia and Herzegovina welcomed the court's decision. “This decision is important for BiH in that it affirms the equality of all persons in BiH, irrespective of ethnicity, and adds additional force to the struggle of minorities for equality,” said Acting Head of Mission Vadim Kuznetsov in Sarajevo.

The two applicants in the case are well-known figures from their respective communities. Sejdic is a human rights advocate with the OSCE and Roma community organizer. Finci is Bosnia's current ambassador to Switzerland. Both have long advocated for greater political inclusion of Bosnia's minorities. In addition to removing discriminatory electoral barriers, Bosnia must pay $20,000 to Finci and $1,000 to Sejdic under the European Court's ruling.

Exactly how the ruling will be implemented remains to be seen. In its judgment, the court noted that, "there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule," adding, "there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities."

In practical terms, Bosnia may not remove provisions for ethnic representation, but instead create additional seats in its state-level legislature and add a fourth seat to its current three-person presidency for representatives of citizens who do not belong to the three "constituent peoples."

Bosnia will hold its next parliamentary and presidential elections in Oct. 2010.

[Photo: Wikicommons.]