Sejdić and Finci v. Bosnia and Herzegovina

Sejdić and Finci v. Bosnia and Herzegovina
Case	Sejdić and Finci v. Bosnia and Herzegovina
Court	European Court of Human Rights
Judgment date	22 December 2009
Application numbers	27996/06, 34836/06
Judges	Luzius Wildhaber, Nicolas Bratza, Françoise Tulkens, Josep Casadevall, Svetozar Glavinić, Corneliu Bîrsan, Said A. Bedjaoui, Vladimiro Zagrebnov, Helena Jäderblom, Egbert Myjer, George Nicolaou, Santiago Pedraz, Nicolas Bratza
Keywords	constituent peoples, ethnic discrimination, Dayton Agreement, Constitution of Bosnia and Herzegovina

Sejdić and Finci v. Bosnia and Herzegovina

Sejdić and Finci are landmark applications decided by the European Court of Human Rights addressing electoral rights and ethnic discrimination under the European Convention on Human Rights. Decided on 22 December 2009, the judgment held that provisions of the Constitution of Bosnia and Herzegovina and electoral law contravened Article 14 of the European Convention on Human Rights taken together with Article 3 of Protocol No. 1 because they excluded minorities from high office. The ruling has influenced constitutional reform debates involving the Dayton Agreement, International Criminal Tribunal for the former Yugoslavia, and wider Council of Europe standards.

Background

The applicants brought claims in the aftermath of the Bosnian War peace settlement embodied by the Dayton Agreement signed in Dayton, Ohio and concluded in Paris, which created the current institutions of Bosnia and Herzegovina including a tripartite Presidency of Bosnia and Herzegovina and the House of Peoples of Bosnia and Herzegovina. The constitutional architecture, annexed as Annex 4 to the Dayton Accords, reserved certain offices to the constituent peoples: Bosniaks, Croats, and Serbs. Post-war governance involved actors such as the Office of the High Representative, the European Union, the Organization for Security and Co-operation in Europe, and the United Nations promoting implementation of human rights norms.

Case facts and applicants

Dervo Sejdić, of Roma origin, and Jakob Finci, of Jewish origin, were citizens of Bosnia and Herzegovina who sought to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina respectively. Both applicants were excluded by constitutional and electoral provisions that limited candidacy to members of the constituent peoples. The applicants invoked prior domestic developments, including decisions of the Constitutional Court of Bosnia and Herzegovina and political negotiations involving the Bosnian Presidency, Parliamentary Assembly of Bosnia and Herzegovina, and the High Representative for Bosnia and Herzegovina.

Legal issues and claims

The applicants alleged discrimination under Article 14 of the European Convention on Human Rights in conjunction with Article 3 of Protocol No. 1 (right to free elections). They argued that the constitutional provisions and electoral law violated rights protected by the European Convention on Human Rights and engaged principles from precedents such as Marckx v. Belgium and Matskvnishvili v. Georgia. Claims involved interpretation of ethnic quotas, the concept of "constituent peoples" referenced in the Constitution of Bosnia and Herzegovina, and obligations under instruments administered by the Council of Europe and the European Court of Human Rights.

Proceedings in the European Court of Human Rights

Applications nos. 27996/06 and 34836/06 were lodged with the European Court of Human Rights in Strasbourg. The Court engaged parties including the Government of Bosnia and Herzegovina and amici such as the International Commission on Missing Persons, Amnesty International, and the OSCE Office for Democratic Institutions and Human Rights. The case involved examination of written submissions, case-law of the European Court of Human Rights like Belgian Linguistic Case jurisprudence, and comparative materials from member states including Croatia, Serbia, Slovenia, and Montenegro.

Judgment and legal reasoning

In its Grand Chamber reasoning, the European Court of Human Rights found violations of Article 14 taken together with Article 3 of Protocol No. 1. The Court held that automatic exclusion of minorities from election to the House of Peoples and the Presidency lacked objective and reasonable justification and was disproportionate. The judgment engaged principles from cases such as Hirst v. United Kingdom and Vogt v. Germany on electoral rights and discrimination, and applied substantive standards from European Convention on Human Rights jurisprudence concerning protection of minorities including the Framework Convention for the Protection of National Minorities and the European Convention on Nationality.

Impact and implementation

The judgment required legislative and constitutional amendment in Bosnia and Herzegovina to ensure compatibility with the European Convention on Human Rights. Implementation implications touched on the role of the Constitutional Court of Bosnia and Herzegovina, the Parliamentary Assembly, and international actors like the High Representative and the European Union Special Representative. The decision influenced constitutional reform talks involving political parties such as the Party of Democratic Action, the Croatian Democratic Union of Bosnia and Herzegovina, the Serb Democratic Party, and civic groups including Roma organizations and Jewish communities.

Reaction and significance

The ruling prompted reactions from political leaders like Bakir Izetbegović, Milorad Dodik, and Dragan Čović, as well as international figures including Javier Solana, Carl Bildt, and representatives of the European Parliament. Human rights organizations such as Human Rights Watch and Amnesty International welcomed the decision as reinforcing equality principles. Conversely, some parties argued that changes risked destabilizing the consociational framework established by the Dayton Agreement and affecting relations with neighboring states like Croatia and Serbia.

Subsequent developments and related cases

Following the judgment, domestic and international efforts sought compliant solutions, including proposals by the Venice Commission of the Council of Europe, constitutional review by the Constitutional Court of Bosnia and Herzegovina, and draft amendments debated in the Parliamentary Assembly of Bosnia and Herzegovina. Related cases and applications involving electoral rights and minority protection in the European Court of Human Rights include Aziz v. Cyprus, Hirst v. United Kingdom (No. 2), Ilascu and Others v. Moldova and Russia, and later proceedings concerning Bosnia and Herzegovina implementation monitored by the Committee of Ministers of the Council of Europe.

Category:European Court of Human Rights cases