EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT
AMICUS CURIAE BRIEF
In the cases of
Sejdic and Finci v. Bosnia and Herzegovina
(Applications no. 27996/06 and
34836/06)
pending before
THE EUROPEAN COURT OF HUMAN RIGHTS
On the basis of comments by
Ms Angelika NUSSBERGER (substitute
member, Germany)
Mr Jean-Claude SCHOLSEM (substitute
member, Belgium)
Mr Joseph MARKO (expert, Austria)
I.
Introduction
1. On 29 May 2008, the
Venice Commission sought leave to intervene as a third party in the proceedings
before the European Court of Human Rights (hereinafter: the Court, or ECtHR) in
the cases of Sejdić v. Bosnia-Herzegovina and Finci v. Bosnia- Herzegovina
(applications no.27996/06 and 34836/06).
2. These cases are
undoubtedly of major importance. The alleged discrimination stems directly from the
constitutional provisions of B-H, which is the fruit of the Dayton Peace
Accords of 1995 that ended a bloody civil war in the country. The
Constitutional court of B-H has recently been called upon assessing whether
this text is still valid, and has concluded that it is.
3. The Venice Commission has been
closely following the political and legal developments in B-H since 1994. Since
then, the Commission has drafted more than one hundred reports and opinions. Among these, the
opinion “on the Constitutional Situation in Bosnia Herzegovina and the Powers of
the High Representative”
is of
particular importance. Chapter V of this opinion is almost entirely devoted to
the problem of the compatibility of the constitution of Bosnia and Herzegovina with the European Convention on Human Rights. More recently, the Commission
was asked to assess certain draft constitutional amendments which failed to be
adopted but aimed inter alia at reducing if not eliminating the discriminatory
treatments which are now the object of the applications to the European Court
of Human Rights at issue.
4. On 13 June 2008, the Commission was informed that the President of the relevant Chamber of the Fourth Section of
the Court granted such leave.
5. The present amicus curiae brief
was prepared on the basis of comments by Ms Angelika Nussberger, Mr Jean-Claude
Scholsem and Mr Joseph Marko, and was adopted by the Commission at its …
Plenary Session (Venice, …).
II.
The
issues raised
6. The central issue in both the
case Sejdić v. Bosnia-Herzegovina and in Finci v. Bosnia- Herzegovina is
the question of whether the provisions of the Constitution of Bosnia and
Herzegovina and the corresponding regulations in the Electoral Code of
Bosnia-Herzegovina preventing persons not belonging to one of the three
constituent peoples from standing for election to the Presidency and the House
of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina comply with Article
14 of the European Convention on Human Rights, read in conjunction with Article
3 of Protocol No. 1 to the Convention and / or Article 1 of Protocol No. 12 to
the Convention.
III.
The
Constitutional System of Ethnic Representation and Veto Powers
7. With the conclusion of the
General Framework Agreement on Peace 1995 in Dayton and Paris, the legal
continuity of the state Bosnia and Herzegovina was affirmed with, however, a
different territorial arrangement. The Federation of Bosnia and Herzegovina
(FBiH), which had been created in April 1994 in order to stop the war between
Muslims/Bosniacs and Croats, as well as the political entity “Republika Srpska”
(RS), which had violently seceded in 1992 from the internationally recognized
Republic of Bosnia and Herzegovina, were recognized as “Entities” of BiH in
Article 1 of the Constitution of BiH, laid out in Annex 4 of the GFAP. This
Constitution also introduced a system of ethnic representation and veto powers
on behalf of the so-called “constituent peoples”, i.e. Bosniacs, Serbs and
Croats. This “institutionalization” of ethnicity was introduced in the
bi-cameral parliamentary system, in particular for the “second” chamber, the
House of Peoples, and the three member Presidency of BiH. Thus, Article IV,
paragraph 1 DC prescribes that the House of Peoples has to be composed of 5
Bosniacs, 5 Croats and 5 Serbs to be selected by the respective Bosniac and
Croat caucuses in the House of Peoples of the Federation Parliament, whereas
the Serb delegates have to be selected by the National Assembly of Republika
Sprska (RS). Article V then prescribes that the Presidency shall be composed of
1 Bosniac and 1 Croat to be directly elected from the territory of the FBiH,
and 1 Serb to be directly elected from the territory of RS.
8. With regard to decision-making
processes, the respective provisions of the Constitution allow also for
so-called “vital national interest” veto mechanisms in both the Presidency and
the Parliamentary Assembly. Article V. (c) requires the members of the
Presidency to achieve consensus whenever possible. If a consensus cannot be
achieved and two members overrule the third one, this member, according to
sub-paragraph d) has a right to declare this decision to be destructive of the
vital national interest of the Entity from the territory from which he has been
elected. If such a veto is confirmed by a two-thirds vote either of the Croat
or Bosniac delegates in the House of Peoples of FBiH or the RS National
Assembly representatives, the Presidenty Decision cannot take effect. Such a
“vital national interest” veto can also be invoked in the parliamentary process
in the House of Peoples of the Parliamentary Assembly of BiH by the majority of
the Bosniac, Croat, or Serb delegates. If a compromise cannot be found in a
Joint Commission the matter has to be referred to the Constitutional Court
which shall decide in an expedited procedure.
9. The ethnic representation and
privilege of constituent peoples, i.e. Bosniacs, Croats and Serbs, in the
composition of the parliamentary and executive institutions and decision-making
processes leads to a double exclusion: first, all Serbs who reside on the
territory of FBiH as well as all Croats and Bosniacs who reside on the
territory of RS are excluded from the right to stand as candidates for the
Presidenty elections. Second, all “Others” who do not identify themselves as
members of these constituent peoples are also excluded from the right to stand
as candidates in the elections for both bodies referred to. Thus, a member of
one of the 23 legally recognized national minorities or a person with the
background of a “mixed marriage” who does not want to identify himself as
exlusively Bosniac, Croat or Serb or a person who refuses to identify himself
for whatever reason is prohibited by the Constitution and the Election Law to
run in the elections for these bodies.
IV.
The
case-law of the Constitutional Court of B-H
10. The exclusion of so-called
“Others” has already been brought before the Constitutional Court of BiH for
judicial review. In case U 5/04, 27 January 2006, then President S. Tihić
had contested the constitutional provisions referred to above before the
Constitutional Court in an “abstract” review procedure claiming that these
provisions violate Article 3 Protocol Nr. 1 and Article 14 ECHR as well as
Article 5 ICERD which is, according to Annex 1 to the Constitution, directly
applicable in BiH. The Constitutional Court declared the request, however, inadmissible.
The Court argued that the underlying problem to be resolved was the
relationship in a supposed legal hierarchy between the Dayton Constitution and
the ECHR. Thus, the Court found that the legal problem to resolve was not “a
dispute between the Entities or institutions” as required under Article VI. 3.
(a), but a potential conflict between national and international law. Moreover,
the Court argued that the ECHR would not enjoy superior rank in relationship to
the Dayton Constitution since the ECHR were put in force in BiH by the
Constitution itself.
11. The second case (U 13/05, 26 June 2006), was also brought before the Constitutional Court by President Tihić.
This time he requested from the Court to review the conformity of the Election
Law with Article 3 of Protocol Nr. 1, Protocol Nr. 12 to the ECHR and again
Article 5 ICERD. Again the Constitutional Court declared the request
inadmissible since the contested Article 8 of the Election Law excluding
“Others” was a direct consequence of the provisions of the Dayton Constitution.
In an interesting dissenting opinion, Judge Constance Grewe, argued that the system
of ethnic representation of constituent peoples might have been justified in
1995 immediately after the war, but no longer with the recent ratification of
the 12th Protocol of the ECHR.
12. The Constitutional Court
examined the question of the compatibility of the exclusion of an applicant, a
Bosniac living in the territory of Republika Srpska, from running as candidate in
the elections for the Presidency of B-H with Article 25 ICCPR and Protocol Nr.
12 to the ECHR. The Court declared the appeal admissible, but rejected the
claim on the merits (case AP 2678/06, 29 September 2006). It considered that the restriction of the right to stand in elections for the Presidency by operation
of Article V of the Constitution and Article 8 of the Election Law could be
justified in the light of the overall goal of the GFAP to preserve the peace in
BiH by strengthening the position of the three constituent peoples through this
exclusive power sharing arrangement.
V.
Violation
of Article 14 read in conjunction with Art. 3 of Protocol No. 1 to the
Convention
- Exclusion of the “Others” in
the election of the Presidency
13. According to Article V 1 of the
Constitution of B-H, the Presidency of B-H consists of three members: one
Bosniac and Croat, each directly elected from the territory of the Federation,
and one Serb directly elected from the territory of the Republika Srpska (see para.
7 above).
14. Thus, all members belonging to
ethnic minorities living in the territory of B-H are denied the right to stand
for elections as Member of the Presidency of B-H. This regulation is alleged to
violate Article 14 of the Convention read in conjunction with Article 3 of
Protocol No. 1 to the Convention.
15. The Venice Commission recalls
at the outset that a violation of Article 14 of the Convention can only be
assumed if the discrimination concerns a right guaranteed by the Convention.
16. The guarantees contained in
Article 3 of Protocol No. 1 relate to the “choice of the legislature”.
According to the jurisprudence of the ECHR the interpretation of what is meant
by “legislature” has to take into account the function of the relevant State
organs within the constitutional structure of the State in question and to
analyse its role in the overall legislative process. Therefore it is
possible to apply Article 3 of Protocol No. 1 to the election of the President,
if it is “established that the office of the Head of the State had been given
the power to initiate and adopt legislation or enjoyed wide powers to control
the passage of legislation or the power to censure the principal
legislation-setting authorities”.
17. This is not the case in
Bosnia-Herzegovina. According to the Constitution, the collective Presidency
exerts classical executive functions such as the conduction of foreign policy
or the execution of the decisions of the Parliamentary Assembly. It does not
have the right to initiate legislation or to control the passage of
legislation. The right to veto fixed in Article V 2 d) of the Constitution
applies only to Presidency Decisions (Article V 2 b, Art. V 3 a). The right to
determine the own rules of procedure is also restricted to organising the
functioning of the Presidency itself and does not confer real legislative
powers. The fact that the Presidency has the power to propose on the
recommendation of the Council of Ministers, the annual budget to the
Parliamentary Assembly is not sufficient for ascribing a legislative function
to it. In similar cases the ECHR has already denied the applicability of
Article 3 of Protocol No. 1 to the Convention.
18. In view of the above, the
Commission is of the opinion that Article 3 of Protocol No. 1 is not applicable
to the elections to the Presidency of Bosnia Herzegovina.
- Exclusion of the “Others” in
the election of the House of peoples
20. The exclusion of all members
belonging to the category of “Others” living in the territory of B-H from the
right to stand for elections as Member of the House of Peoples of B-H is also
alleged to violate Article 14 of the Convention read in conjunction with
Article 3 of Protocol No. 1 to the Convention.
21. Contrary to the election of the
Presidency, the election of the members of the House of Peoples is covered by
Article 3 of Protocol No. 1. The House of Peoples forms part of the
Parliamentary Assembly which is the main legislative body in
Bosnia-Herzegovina.
22. According to the jurisprudence
of the European Court of Human Rights, the Contracting States have a wide
margin of appreciation
in designing their electoral systems in regard of the “differences in
historical development, cultural diversity and political thought.”
23. On the other hand, different
treatment on the basis of ethnicity can hardly ever be justified. Thus the
Court explains in the case Timishev v. Russia: “Racial discrimination is a
particularly invidious kind of discrimination and, in view of its perilous
consequences, requires from the authorities special vigilance and a vigorous
reaction. It is for this reason that the authorities must use all available
means to combat racism, thereby reinforcing democracy’s vision of a society in
which diversity is not perceived as a threat but as a source of enrichment.” It
further adds: “In any event, the Court considers that no difference in
treatment which is based exclusively or to a decisive extent on a person’s
ethnic origin is capable of being objectively justified in a contemporary
democratic society built on the principles of pluralism and respect for
different cultures.”
The case-law of the Court does not allow for any exclusions from groups of
persons from participating in the political life of the country: “Although
the Court notes that States enjoy considerable latitude to establish rules
within their constitutional order governing parliamentary elections and the
composition of the parliament, and that the relevant criteria may vary
according to the historical and political factors peculiar to each State, these
rules should not be such as to exclude some persons or groups of persons from
participating in the political life of the country and, in particular, in the
choice of the legislature, a right guaranteed by both the Convention and the
Constitutions of all Contracting States.”
24. Despite the large margin of
appreciation of the Contracting States in organizing their election systems, a
system based on ethnic discrimination can therefore be justified only under
truly exceptional circumstances. The Court regards minorities generally as
especially vulnerable and therefore not only prohibits direct and indirect
discrimination, but also requires protective measures.
25. Conditions imposed on the right
to stand for elections must be in pursuit of a legitimate aim and the means
employed must be proportionate.
26. As concerns the legitimacy of
the aim pursued by the provisions at issue, the Venice Commission notes that in
the negotiation of the Dayton Peace Agreement and the new Constitution for B-H,
the predominant aim was to find a compromise between the different ethnic
groups, the Bosniacs, the Serbs and the Croats and to achieve peace and
stability in the region after the war.
27. The Venice Commission has
already expressed its opinion on the legitimacy of the approach:
"In the present case,
the distribution of posts in the State organs between the constituent peoples
was a central element of the Dayton Agreement making peace in BiH possible. In
such a context, it is difficult to deny legitimacy to norms that may be
problematic from the point of view of non-discrimination but necessary to
achieve peace and stability and to avoid further loss of human lives. The
inclusion of such rules in the text of the Constitution at that time therefore
does not deserve criticism, even though they run counter to the general thrust
of the Constitution aiming at preventing discrimination.”.
28. It remains to be seen whether
this approach continues to be jusfiied and the restriction on the right to be
elected of the “Others” is still proportionate more than a decade after the end
of the war, i.e. if the emergency situation is still present.
29. In its Opinion on the
constitutional situation in Bosnia and Herzegovina of 2005, the Venice
Commission stated that:
“This justification has to
be considered, however, in the light of developments in BiH since the entry
into force of the Constitution. BiH has become a member of the Council of
Europe and the country has therefore to be assessed according to the yardstick
of common European standards. It has now ratified the ECHR and its Protocol No.
12. As set forth above, the situation in BiH has evolved in a positive sense
but there remain circumstances requiring a political system that is not a
simple reflection of majority rule but which guarantees a distribution of power
and positions among ethnic groups. It therefore remains legitimate to try to
design electoral rules ensuring appropriate representation for various groups.
This can, however, be
achieved without entering into conflict with international standards. It is not
the system of consensual democracy as such which raises problems but the mixing
of territorial and ethnic criteria and the apparent exclusion from certain
political rights of those who appear particularly vulnerable. It seems possible
to redesign the rules on the Presidency to make them compatible with
international standards while maintaining the political balance in the country.
”
30. In 2006, the Constitutional Court
of Bosnia and Herzegovina argued that, at that time, there was still an
objective and reasonable justification for the differential treatment of the
different ethnicities in Bosnia-Herzegovina (the decision did not concern the
exclusion of the “Others”, but the special election system based on a
combination of the territorial and ethnical principle; see para. 12 above) because
of “the specific nature of the internal order of Bosnia and Herzegovina that
was agreed upon by the Dayton Agreement and whose ultimate goal was the
establishment of peace and dialogue between the opposing parties.”
31. The Constitutional Court
further held that the restrictions were “proportionate to the objectives of
general community in terms of preservation of the established peace,
continuation of dialogue, and consequently creation of conditions for amending
the mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Law.”
In his concurring opinion Judge Feldmann underlined that this justification was
only temporary, but “that the time has not yet arrived when the State will have
completed its transition away from the special needs which dictated the unusual
architecture of the State under the Dayton Agreement and the Constitution of
Bosnia and Herzegovina.”
32. Contrary to the opinion of the
majority of judges, Judge Grewe argued in her dissenting opinion “that the
current situation in Bosnia and Herzegovina does not justify at this moment the
differential treatment of the appellant’s candidacy in relation to the
candidacy of other candidates …”.
She accepted that specific measures were necessary, but stressed that “the
Dayton Agreement architecture is evolving and has to adapt to the different
states of evolution in BiH.”
33. The Venice Commission agrees
with the Constitutional Court of B-H that it is necessary to have a framework
for the “continuation of dialogue”. It might even be necessary to uphold
specific regulations in order to guarantee a fair representation of the
different ethnicities living in B-H.
34. The Commission however does not
find that it is justified to exclude the “Others” from this dialogue and from
certain parts of the political decision-making process on a permanent basis.
Even if special constitutional arrangements are still deemed necessary for the
inter-action between the constituent peoples, this does not justify the
complete exclusion of third persons. On the contrary, the inclusion of third
persons might help to overcome the stalemate in Bosnia-Herzegovina. The long
time that has elapsed since the elaboration of the Dayton Peace Treaty proves
that the solution found in 1995 does not really help to overcome the problems
in Bosnia-Herzegovina. It is not proportionate to nullify rights guaranteed in
the Convention in order to preserve a constitutional structure that has not
helped to acquire the desired results within a period of about 13 years.
35. In this context, the Venice
Commission recalls that the “Others” are defined by exclusion from the three
constituent peoples (see para. 9 above). Whether or not one belongs to one of
the constituent peoples does not result from legal criteria, but from mere
sociological ones. As a consequence, the “Others” in Bosnia-Herzegovina
comprise not only persons who, like the applicants, consider themselves to
belong to a specific group (Jews or Roma); they also comprise anyone (including
people in ethnically mixed marriages) who refuses to define himself or herself
as belonging to one of the constituent peoples. The notions of “constituent
peoples” and of “others” therefore lead to a stratification of society which,
instead of appeasing ethnic tensions, exarcebates them, given that part of the
civic prerogatives depend on whether or not one belongs to a constituent
people. The passing of time is thus a problematic factor.
36. The Commission further notes
that there is a striking contrast between the system under consideration and
the Entities´ Constitutions. At the level of the Entities, not only constituent
peoples, but also Others are included into the ethnic quota system. All of them
are represented in the respective second chamber, the cabinets and the
judiciary. The regulations on ethnic representation and participation in the
Entity constitutions give thus clear evidence that there is a mechanism of
power sharing which does not automatically lead to the total exclusion of the
category of Others from the right to stand as candidates in elections. Through
the introduction of the category of “Others” into the constitutional mechanisms
for ethnic representation and participation also at state level, the conflict
arising under the Dayton Constitution between the group rights of constituent
peoples on the hand and the individual human right to vote and to stand as a
candidate in elections could be avoided.
37. Neither is the differential
treatment justified by the inability of the political players to find a
compromise on a new constitutional architecture. As B-H has become a member of
the Council of Europe and ratified the relevant human rights acts, it has
acknowledged its willingness to live up to the standards set in these
documents.
38. One can indeed notice a significant change of mentality in B-H. This can
be explained, at least in part, by the increasing connections of B-H with the
European Union and by the ensuing need for global reforms.
39. A tangible proof of the above is the attempt to reform the constitution
in March 2006. This attempts failed, but hardly, which shows a real readiness
to change the basic functioning of the institutions in B-H. This attempted
constitutional reform further shows that the choice does not need be a radical one.
In order to conform to the ECHR, it is not necessary to dismantle totally the
system set up by the Dayton Agreement, which can maintain a certain legitimacy,
as the Constitutional Court of B-H indicated.
40. In conclusion, in the Venice
Commission’s opinion the provisions of the Constitution and the Electoral Code leading
to the exclusion of the “Others” in the election of the House of Peoples cannot
be considered proportionate and are therefore at variance with Article 14 read
in conjunction with Article 3 of Protocol No. 1 of the Convention.
VI.
Violation
of Article 1 of Protocol No. 12
41. Article 1 of Protocol No. 12
prohibits discrimination in “the enjoyment of any right set forth by law”. It
is therefore applicable to restrictions concerning the eligibility to the
Presidency and to the House of Peoples of Bosnia-Herzegovina.
42. As regards the justification for
a different treatment of “the Others” on the basis of the Constitution of B-H
and the Electoral Code, the Venice Commission refers to its reasoning in
respect of a violation of Article 14 read in conjunction with Article 3 of
Protocol No. 1 to the Convention.
43. The Venice Commission is
therefore of the opinion that the provisions of the Constitution and the
Electoral Code leading to the exclusion of the “Others” in the election of the Presidency
and of the House of peoples cannot be considered proportionate and are
therefore at variance with Article 1 of Protocol 12 to the Convention.
