Wednesday, December 23, 2009

Bosnian Constitution found to violate the European Convention on Human Rights

The European Court of Human Rights, in a judgment issued yesterday in the case of Sejdic and Finci v. Bosnia, ruled that the Constitution of Bosnia and Herzegovina, by prohibiting a Rom and a Jew from standing for election to the higher house of the Parliament and for the State Presidency, violates the provisions of the European Convention of Human Rights on discrimination and the right to free elections. 

This is a particularly significant judgment as it radically undermines the legitimacy of a rather complex constitutional framework that was devised and imposed by members of the “Contact Group” (i.e. the US, UK, France, Germany and Russia) as part of the 1995 Dayton Peace Agreement. The Constitution of Bosnia itself constitutes Annex 4 of the Dayton Agreement and as noted by the Court, “constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language, English.” The discriminatory, not mentioning unwise and unworkable, nature of several of its provisions have long been known and criticized.

In this case, the Court examined the Bosnian Constitution’s distinction between two categories of citizens: those belonging to the so-called “constituent peoples” (Bosniacs, Croats and Serbs) and the “others” (Jews, Roma and other national minorities together with those who do not declare affiliation with any ethnic group). The House of Peoples of the Parliamentary Assembly (the second chamber) and the Presidency are composed only of persons belonging to the three constituent peoples. In light of such manifestly discriminatory arrangements, the Court’s ruling is not exactly surprising. It is never acceptable to prohibit individuals from running for high political office solely on the ground of their ethnic origins. While the Court easily acknowledges that this power-sharing constitutional arrangement was put in place at a time when a fragile ceasefire had been reluctantly accepted by all the parties to a nasty inter-ethnic conflict and is further convinced that it pursued the legitimate aim of restoring peace, the Court also reasonably concludes that full compliance with the European Convention on Human Rights means that Bosnian authorities must at the very least devise new power-sharing mechanisms that do not automatically lead to the total exclusion of representatives of communities or persons which do not belong or do not wish to belong to the “constituent peoples.”

LP

http://lawprofessors.typepad.com/international_law/2009/12/bosnian-constitution-found-to-violate-the-european-convention-on-human-rights.html

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