CM/Inf/DH(2011)6 8 February 20111
Memorandum – Sejdic and Finci
27996/06 Sejdić and Finci, judgment of 22/12/2009 – Grand Chamber
A. Introductory case summary
The case of Sejdić and Finci concerns the violation of the applicants’ right to free elections and discrimination against them. As citizens of Bosnia and Herzegovina (“BIH”) of Roma and Jewish origin, the applicants were ineligible to stand for election to the House of Peoples of BIH (the second chamber of the Parliament) as the Constitution of BIH (“Constitution”) reserves this right to persons having declared their affiliation to one of the “constituent peoples” (i.e. Bosniacs, Croats and Serbs) (violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1).
The European Court noted that the House of Peoples comprises 15 delegates, two-thirds from the Federation of BIH (including five Croats and five Bosniacs) and a third from the Republika Srpska (five Serbs). The designated Croat and Bosniac delegates from the Federation of BIH (“Federation”) are selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska are selected by the National Assembly of Republika Srpska (§11 of the judgment). The European Court found that the applicants’ continued ineligibility lacked an objective and reasonable justification (§50 of the judgment).
This case also concerns general discrimination against the applicants in that they were also ineligible for election to the Presidency of BIH (the collective Head of State) because they were not affiliated to a “constituent people” as required by the Constitution (violation of Article 1 of Protocol No. 12).
The Constitution provides that the Presidency of BIH consists of three members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska (§11 of the judgment).
B. Background information:
1. The Constitution of BIH: The Constitution of BIH is an annexe to the Dayton Peace Agreement signed in 1995, which brought to an end the war in Bosnia and Herzegovina. It constitutes the unique case of a constitution which has never been officially published in the official languages of the country concerned but was agreed and published in a foreign language (English) (§6 of the judgment). The Constitution of BIH can be amended by the Parliament of BIH.
2. The general elections: They were held in BIH on 03/10/2010.
C. International organisations involved in constitutional reform in BIH:
A number of international actors, including regional organisations and the U.S.A., have been involved in constitutional reform in BIH.
1. Council of Europe (“CoE”): BIH undertook to review and revise the electoral legislation in the light of CoE standards within a year of its accession to this organisation in 2002 (§21 of the judgment).
(a) The Committee of Ministers (“CM”) has indicated that members of national minorities in BIH were still ineligible for a number of high-level posts (CM/ResCMN(2009)6). On 23/04/2010, the Chairman of the CM, Ms Micheline Calmy-Rey, visited Sarajevo and stressed that the authorities should speed up the required process of constitutional reform and amend the Electoral Code in compliance with this judgment.
On 11/05/2010, the outgoing and incoming Chairperson of the CM, Ms Micheline Calmy-Rey and Mr Antonio Milošoski reminded BIH of the importance of implementing this judgment. On 01/06/2010 and again on 02/11/2010, the Chairman of the CM, Mr Antonio Milošoski, discussed constitutional reform in BIH in Sarajevo with the BIH Foreign Minister Sven Alkalaj. The CM also urged the BIH authorities to bring their country’s Constitution in line with the Convention, in accordance with the Sejdić and Finci judgment, most recently on 07/07/2010, 07/09/2010 and 02/12/2010. At all his meetings during his most recent visit, the Chairman encouraged the political parties to incorporate the question of constitutional reform in their coalition-building discussions. He also made it known that it would be helpful to make use of this period to draft – in co-operation with the Venice Commission – a certain number of options for possible reforms so as to prepare the ground for the future government.
(b) The Parliamentary Assembly (“PACE”) has stressed on several occasions that “the so-called ‘Others’ should be given an effective opportunity to participate fully in political life, by running in elections for members of the presidency and participating in the designation of delegates to the House of Peoples” (Res1626(2008) and Res 1701(2010)).
In March 2010, the PACE President visited Sarajevo and urged the political leaders and members of the BIH Parliament to comply with this judgment. The PACE also expressed its concern over the fact that the initiative launched by the authorities had not so far led to any concrete results and stressed that it was fully aware of the possible implications of the non-implementation of this judgment before the October 2010 general elections (Res1725(2010). In addition, the PACE recommended that the Committee of Ministers should provide full political support to the institutionalised process for the preparation of constitutional amendments and develop a targeted co-operation programme, with the involvement of the Venice Commission and in co-operation with the international partners, so as to provide key European expertise and expert advice to the domestic legal experts, whenever necessary (Rec 1914(2010).
(c) The Secretary General, in his speech before the PACE in April 2010, stressed that, in view of the fact that the constitutional reform was a legal obligation of BIH as a member of the CoE, this gave to the Organisation a particular role and responsibility. He said that the October parliamentary elections were adding to the urgency of having a clear, co-ordinated and consolidated position within the CoE and within the international community on all aspects of the execution of the judgment and its implications for the constitutional reform in BIH. On 23/06/2010, the Secretary General pointed out that no progress had been achieved in the implementation of this judgment (SG/Inf(2010)11).
(d) The Venice Commission has adopted a number of opinions, finding that the present Constitution of BIH is in contradiction with the Convention (see §22 of the judgment).
2. European Union (“EU”): In 2008 BIH signed and ratified a Stabilisation and Association Agreement with the EU and accepted to amend the electoral legislation regarding members of the BIH Presidency and House of Peoples delegates to ensure full compliance with the Convention and its post-accession commitments to the CoE (§25 of the judgment).
The EU-administered attempt to negotiate constitutional reform in BIH, the “Butmir process”, came to an end in October 2009 without result. At the issue of the Butmir process, the Swedish Foreign Minister, Bildt and the US Deputy Secretary of State Steinberg stressed in a joint statement of 21/10/2009 that the Constitution of BIH must be brought into line with the Convention. In January 2010, EU Commissioner for Enlargement Rehn wrote a letter to the Chairman of the Council of Ministers of BIH, requesting information on measures envisaged in this case. In March 2010, EU Commissioner for Enlargement Füle stated that it would be very important to execute this judgment before the October general elections.
On 18/04/2010 the US Deputy Secretary of State Steinberg and the Spanish Foreign Minister Moratinos again discussed the constitutional amendments with the political leaders of BIH in Sarajevo. On 17/06/2010, the European Parliament called on the BIH authorities, within the comprehensive constitutional reform, to amend the relevant constitutional provisions and provisions of the BIH Electoral Code as soon as possible to comply with the current European Court’s judgment in this case.
1 This document has been classified restricted at the date of issue. It was declassified at the 1108th meeting of the Ministers’ Deputies (March 2011) (DH) (see CM/Del/Dec(2011)1108 Decisions adopted at the meeting).