Constituency of peoples in the constitutional

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Constituency of peoples in the
constitutional system of Bosnia
and Herzegovina: Chasing fair
solutions
Zlatan Begić* and Zlatan Delić**
The constituency of peoples as a collective political right of ethnic communities in Bosnia
and Herzegovina (Bosnians, Serbs, and Croats) was provided as a constitutional category by
the Washington and Dayton Peace Agreements. On the one hand, institutional guarantees
for equal status of ethnic groups, which make the essence of constituency, can indeed help to
decrease the insecurity and tensions among them and secure the removal of obstacles during
the distribution of political power. On the other hand, it is difficult to foresee the consequences
of institutionalized ethnic equality on the individual equality of the members of the different
groups. In that sense, there is a real risk of identification of the collective ethnic identity with
individual identity, and limitation of individual rights to collective political rights of ethnic
groups, which is the case in Bosnia and Herzegovina in post-Dayton period. By its decision
in the Sejdić-Finci case, the European Court of Human Rights confirmed that Bosnia and
Herzegovina, taking into account all its specificity, should find a “lucky” combination of civil
and ethnic constitutional model.
1. Introduction
The question of ethnic communities’ right in the former republics of the Yugoslav
Federation to identify themselves as constituent peoples became emphasized especially
after the first democratic elections in 1991, when ethnic parties won in Bosnia and
Herzegovina (BH). These parties had diametrically opposing political aims and views
regarding the future of the Yugoslav Federation. Thus, the Serb Democratic Party (SDS)
openly promoted the idea of the creation of Great Serbia, which would be comprised of
Serbia and parts of the Bosnian and Croatian territory. The Croatian Democratic Union
(HDZ) promoted Croatian autonomy and, finally, the dissolution of BH, whereas the Party
* PhD, Senior Assistant Lecturer, Faculty of Law, University of Tuzla. Email: [email protected]
** PhD, Associate Professor, Faculty of Law, University of Tuzla. Email: [email protected]
I•CON (2013), Vol. 11 No. 2, 447–465doi:10.1093/icon/mot003
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I•CON 11 (2013), 447–465
of Democratic Action (SDA) advocated the preservation of BH as it was.1 The disagreement lead to an aggressive war, ethnic cleansing, and genocide which was ideologically
founded, instigated, and largely controlled from the outside by the neighboring states.2
The constituency of peoples as a collective right of ethnic communities in BH
(Bosnians, Serbs, and Croats) was provided as a constitutional category by the
Washington and Dayton Peace Agreements which put an end to the war. It is obvious
that the creators of these agreements started with the premise that many ethnically
or politically divided countries ended their internal conflicts by establishing a parity
allocation of key functions. Examples of such countries are Belgium and Lebanon
prior to 1975 where each ethnic group was allocated a number of key positions.3 The
Washington and Dayton Agreements further carried out the transformation of constitutional systems, whereby BH went from being a unitary to a complex state consisting
of two entities. It seems that the creators of the Dayton Peace Agreement applied a previously successful formula of federalization and separation of ethnic groups to prevent
ethnic conflicts.
However, this very clearly shows a misunderstanding of the essence of the Bosnian
entity. In BH, the ethnic groups did not live next to each other within the same country. Bosnians, Serbs, and Croats, and other ethnicities, have lived so intermingled with
one another that the pre-war ethnic map was vividly called a “leopard’s fur.” Unlike
See Florian Bieber, Bosnia-Herzegovina and Lebanon: Historical Lessons of Two Multireligious States, 2
Third World Q. 269, 272–275 (2000); Francine Friedman, Bosnia and Herzegovina: A Polity on the Brink
35 (2005); Neven Andjelic, Bosnia-Herzegovina: The End of a Legacy 128–130, 152–176 (2005); Vojislav
Stanovčić, Problems and Options in Institutionalizing Ethnic Relations, 4 Int’l Pol. Sci. Rev. 359, 374–376
(1992); Lenard J. Cohen, Post-Federalism and Judicial Change in Yugoslavia: The Rise of Ethno-Political Justice,
3 Int’l Pol. Sci. Rev. 301, 301–304 (1992); James Ron, Boundaries and Violence: Repertoires of State Action
along the Bosnia/Yugoslavia Divide, 5 Theory & Soc’y 609, 621 (2000); Florian Bieber, Post-War Bosnia:
Ethnicity, Inequality and Public Sector Governance 19–26 (2006); Leslie Benson, Yugoslavia: A Concise History
139 (2001); Samuel P. Huntington, The Clash of Civilisations and Remaking of World Order (1996); Stephen
Holmes, The Matador’s Cape: America’s Reckless Response to Terror 131–156 (2007); Prem Shankar Jha, The
Twilight of the Nation State: Globalisation, Chaos and War 1–24 (2006); Aaron Tyler, Islam, the West, and
Tolerance: Conceiving Coexistence 13–40 (2008); Dieter Senghaas, The Clash Within Civilizations: Coming
to Terms with Cultural Conflicts 71–77 (2005); Vladimir-Djuro Degan, Two Faces of Multiculturalism in
Present International Law, in Multiculturalism and International Law 517, 525–534 (Sienho Yee & JacquesYvan Morin eds., 2009); Howard M. Hensel, The Rejection of Natural Law and its Implications for International
Relations and Armed Conflict, in The Legitimate Use of Military Force 63, 79 (Howard M. Hensel ed., 2008).
2
For Milosevic role in Bosnian war see Adam Le Bor, Milosevic: A Biography (2004); Paul McLaughlin,
Anarchism and Authority: A Philosophical Introduction to Classical Anarchism 75 (2007); Marja Lehto,
Indirect Responsibility For Terrorist Acts. Redefinition of the Concept of Terrorism Beyond Violent Acts 91–92,
134–139, 249 (2009); Conway W. Henderson, Understanding International Law 48–50, 104 (2010);
John Quigley, The Genocide Convention: An International Law Analysis 48, 55, 177–180 (2006); Ulrich
Schneckener, Making Power-Sharing Work: Lessons from Successes and Failures in Ethnic Conflict Regulation,
2 J. Peace Res. 203, 203–209 (2002); Jack Snyder & Karen Ballentine, Nationalism and the Marketplace
of Ideas, 2 Int’l Security 5 (1996); Murat Somer, Cascades of Ethnic Polarization: Lessons from Yugoslavia,
573 Annals Am. Acad. Pol. & Soc. Sci. 127, 134–142 (2001); Carol Skalnik Leff, Democratization and
Disintegration in Multinational States: The Breakup of the Communist Federations, 2 World Pol. 205,
220–222 (1999); Laslo Sekelj, Parties and Elections: The Federal Republic of Yugoslavia. Change without
Transformation, 1 Europe–Asia Stud. 57, 59–74 (2000).
3
See Charles William Maynes, Containing Ethnic Conflict, 90 Foreign Pol’y 3, 12–13 (1993).
1
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
449
other similar countries where the ethnic separation is the result of natural (geograph­
ical, historical, etc.) divisions, the ethnic separation in BH is the result of an aggressive
war, ethnic cleansing, and genocide that the international community legitimized by
the Dayton Peace Agreement.4
It seems that the Washington Peace Agreement served as a template to creators
of the Dayton Peace Agreement. This Agreement did not arise as a result of efforts
to establish a functional system of good governance, democratic development, and
economic prosperity, which would allow a painless transition from the socialist to the
capitalist system. This Agreement was created as a part of an overall package aimed
at establishing peace under international supervision,5 which was its main purpose.
The constitutional system established by the Dayton Peace Agreement, based on
the constitutionality of Bosnians, Serbs, and Croats, who are given a special political
status, is in contradiction with international democratic standards regarding electoral
rights of citizens. On the other hand, the Dayton Constitution is self-contradictory,
because while one part prohibits any form of discrimination, the other part precludes
BH citizens who do not belong to any of the constituent peoples from running for a
particular government office.6
2. Defining the scope and substance of the right to
constituency with regard to the relevant opinions of the
Constitutional Court of BH
2.1. Brief chronology of events
After signing the Peace Agreement for BH in Dayton, the harmonization of
entity constitutions with the Constitution of BH emerged as a key issue in its
In contrast, most of the Serbian authors insist on the thesis that the war in Bosnia and Herzegovina can
be considered a civil war, in order to deny the responsibility of Belgrade for war events and to equalize all
sides in conflict. Not uncommon are the foreign authors who label the conflict in Bosnia and Herzegovina
as civil war. In this respect see David Lubant, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy
of International Criminal Law, The Philosophy of International Law 569, 581 (2010); Prem Shankar Jha, The
Twilight of the Nation State: Globalisation, Chaos and War 214 (2006); Samuel P. Huntington, The Clash of
Civilisations and Remaking of World Order 290–291 (1996); Roberto Belloni, State Building and International
Intervention in Bosnia 14, 38, 139 (2007); Roland Paris, At War’s End: Building Peace After Civil Conflict
97–107 (2004); Charles R. Shrader, The Muslim–Croat Civil War in Central Bosnia. A Military History,
1992–1994 (2003); Ivo D. Duchacek, Federalism and Ethnicity, 4 Publius 3, 13–15(1977).
5
For institutions of international community and their role in BH see David Chandler, Bosnia: Faking
Democracy After Dayton 55–60 (2d ed. 2000); Malcolm N. Shaw, Territorial Administration by Nonterritorial Sovereigns, in The Shifting Allocation of Authority in International Law Considering Sovereignty,
Supremacy and Subsidiarity 369, 400–402 (Tomer Broude & Yuval Shany eds., 2008); Malcolm N. Shaw,
International Law 203–204, 231 (2008); Samuel H. Barnes, The Contribution of Democracy to Rebuilding
Postconflict Societies, 1 Am. J. Int’l L. 86, 94 (2005); Michael Steiner, Seven Principles for Building Peace, 2
World Pol’y J. 87, 88–90 (2003); Michael G. Karnavas, Creating the Legal Framework of the Brčko District
of Bosnia and Herzegovina: A Model for the Region and Other Postconflict Countries, 1 Am. J. Int’l L. 111,
113–117 (2003).
6
See Gro Nystuen, Achieving Peace or Protecting Human Rights? 14–17 (2005).
4
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I•CON 11 (2013), 447–465
successful implementation. In this regard, the applicable provisions of Article XII(2)
of the Constitution of BH stipulates: “Within three months from the entry into force
of this Constitution, the Entities shall amend their respective constitutions to ensure
their conformity with this Constitution.” In regard to this, the provisions of Annex
II(2) of the Constitution of BH must be emphasized. This provision stipulates that all
laws, regulations and judicial rules of procedure that were in force when the Dayton
Constitution was imposed “. . . shall remain in effect to the extent not inconsistent
with the Constitution of Bosnia and Herzegovina.”
It comes out from the previously cited provisions of the Dayton Constitution that
the constitutions of entities, and their legal systems, are accepted by the Dayton Peace
Agreement only to the extent that they are consistent with its Annex IV (Constitution
of BH).7 It is also necessary to note that the Constitution of BH came into force on the
date of the signing of the General Framework Agreement for Peace in BH, that is, on
December 14, 1995. In this respect, we can conclude that the deadline up to which
this constitutional obligation had to be implemented was March 14, 1996.
However, the prescribed constitutional obligation requiring that the entity constitutions be harmonized with the Constitution of BH was only partially executed. Under
such circumstances, in February 1998, the Chairman of the BH Presidency, Alija
Izetbegović, as an authorized person, instituted proceedings before the Constitutional
Court of BH to check the constitutionality of a number of provisions of the constitutions of entities. He argued that the same provisions contained in the constitutions
of entities, which violated the Constitution of BH and the overall Dayton Agreement,
also discriminated against Bosnians and Croats in the Republic of Srpska (RS) and
against Serbs in the Federation of Bosnia and Herzegovina (Federation of BH) by treating them as constituent peoples.
2.2. Partial decision part 3 of the Constitutional Court of BH
(No. U-5/98)
The essential content of the constitutional definition of the term constituent ­people
as well as its legal consequences are grounded in the partial decision part 3 of the
Constitutional Court of BH of June 30 and July 1, 2000. With this decision, the
Constitutional Court of BH declared the following provisions or parts of provisions
of the Constitution of the RS unconstitutional: ¶¶ 1, 2, 3, and 5 of the Preamble and
the words “State of the Serbian people” contained in Article 1 of the Constitution of
the RS. The Constitutional Court also declared the provisions of Article I.1(1) of the
Constitution of the Federation of BH unconstitutional.8
The disputed provisions of Preamble of the Constitution of the RS stipulated:
Starting from the natural, inalienable and non-transferable right of the Serb people to selfdetermination on the basis of which that people, as any other free and sovereign people, independently decides on its political and State status and secures its economic, social and cultural
7
8
Kasim Trnka, Konstitutivnost Naroda [The Constituency of Peoples] 78 (2000).
The constitutionality of the following phrase was disputed: “Bosnians and Croats as constituent peoples,
along with Others,” as well as the words: “in the exercise of their sovereign rights.”
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
451
development; Respecting the centuries-long struggle of the Serb people for freedom and State
independence; Expressing the determination of the Serb people to create its democratic State
based on social justice, the rule of law, respect for human dignity, freedom and equality . . .
Taking the natural and democratic right, will and determination of the Serb people from the
RS into account to link its State completely and tightly with other States of the Serb people;
Taking into account the readiness of the Serb people to pledge for peace and friendly relations
between peoples and States.
Regarding the disputed provision of Article 1 of the Constitution of the RS, which
originally read: “The Republic of Srpska shall be the State of the Serb people and of all
its citizens,” the applicant argued that it was not in line with the last paragraph of the
Preamble of the Constitution of BH and with Articles II.4 and II.6 of the Constitution
of BH. He contended that, according to the said provisions of the Constitution of BH,
all three peoples, namely Bosnians, Croats, and Serbs were the constituent peoples
of the entire territory of BH. He also referred to Article 1 of the Constitution of RS
because, as it was explained, the RS could not be established as a state of only one
people—the Serb people—which would eventually keep refugees from returning and
hinder investigations into the ethnic cleansing. In addition, the RS could not be called
a state in its full capacity as it is called an “entity” in Article I.3 of the BH Constitution.
Acting upon the applicant’s request, the Constitutional Court of BH, in the first
place, had to determine the legal validity of the Preamble to the BH Constitution. The
Constitutional Court called to the position of the Canadian Supreme Court held in
Reference re Secession of Quebec [1998] 2 SCR at ¶¶ 49–54:
These principles inform and sustain the constitutional text: they are the vital unsaid assumptions upon which the text is based. . . . Although these underlying principles are not explicitly
made part of the Constitution by any written provision, other than in some respects by an
oblique reference in the preamble to the Constitution Act, it would be impossible to conceive of
our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. . . .9
The same holds true for the Preamble to the RS Constitution but for another reason, as the text of that Preamble was modified by Amendments XXVI and LIV which
explicitly stated that “these amendments form an integral part of the Constitution of
the RS . . .”
Based on these arguments, the Constitutional Court stated that, since any provision of an entity’s constitution must be consistent with the Constitution of BH,
including its Preamble, the provisions of the Preamble are thus a legal basis for
reviewing all normative acts lower in rank in relation to the Constitution of BH for
as long as the aforesaid Preamble contains constitutional principles delineating—
in the words of the Canadian Supreme Court—spheres of jurisdiction, the scope of
rights or obligations, or the role of the political institutions. The provisions of the
Preamble are therefore not merely descriptive, but are also invested with a powerful normative force, thereby serving as a sound standard of judicial review for the
Constitutional Court.
9
Partial decision part 3 of the Consitutional Court of Bosnia and Herzegovina (No. U-5/98), ¶ 23.
452
I•CON 11 (2013), 447–465
Consequently, the advocate of the National Assembly of the RS raised the objection
that the last sentence of the Preamble of the Constitution of BH did not literally state
that Bosnians, Croats, and Serbs are constituent on the entire territory of BH. In his
opinion, the constituent status of one or two peoples in one entity did not mean that
they were not constituent in BH but rather the other way round: “If one people are
constituent in one of the Entities, then it is constituent in Bosnia and Herzegovina
also, insofar as the Entities form the territory of BH.”10
The Constitutional Court found that neither was there a definition of the term “constituent peoples” in the Constitution of BH nor did the last sentence of the Preamble
expressis verbis include the phrase “on the entire territory.” However, regardless of
the lack of the definition of the status of Bosnians, Croats, and Serbs as constituent
peoples, the Constitutional Court noted that the Preamble of the Constitution of BH
clearly designates all of them as constituent peoples, that is, as peoples. Furthermore,
Article II.4 of the Constitution prohibits discrimination on any grounds such as, inter
alia, association with a national minority and presupposes, thereby, the existence of
groups conceived as national minorities.
In this regard, the Constitutional Court ruled that even if the constituent peoples
are, in actual fact, in a majority or minority position in the entities, the expressed recognition of Bosnians, Croats, and Serbs as constituent peoples by the BH Constitution
can only mean that none of them is constitutionally recognized as a majority or, in
other words, that they enjoy equality as groups. The Constitutional Court also emphasized that the constitutional principle of collective equality of constituent peoples following from the designation of Bosnians, Croats, and Serbs as constituent peoples
prohibits according any special privilege to one or two of these peoples, affording
them any domination in governmental structures, or allowing ethnic homogenization
through segregation based on territorial separation despite the territorial delimitation
of BH through the establishment of the two entities. This territorial delimitation cannot serve as a constitutional legitimacy for ethnic domination, national homogenization, or a right to uphold the effects of ethnic cleansing.
The Constitutional Court has also expressed its disagreement with the argument concerning the composition of the institutions of BH, and noted that the Court does not
share the view of the advocates of the National Assembly of the RS or of the House of
Peoples of the Federation of BH that the provisions of the BH Constitution (concerning
the composition of the two Houses of the Parliamentary Assembly of BH, the Presidency
of BH, the Council of Ministers, and the Constitutional Court as well as the respective
electoral mechanisms) allow for the general conclusion that these representation mechanisms reflect the territorial separation of the constituent peoples in the entities.
The Constitutional Court of BH expressed a similar position in response to the request
to review Article I.1(1) in the formulation of Amendment III to the Constitution of the
Federation of BH which originally stated that:
Bosnians and Croats as constituent peoples, along with Others, and citizens of Bosnia and
Herzegovina from the territories of the Federation of BH, in the exercise of their sovereign
Decision of the Constitutional Court of BH in the Case No. U-05/98, ¶ 39.
10
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
453
rights, transform the internal structure of the Federation territories, which has been defined
by Annex II to the General Framework Agreement, so the Federation of BiH is now composed
of federal units with equal rights and responsibilities.
In terms of interpretation and application of the last line of the Preamble to
the BH Constitution, concerning the rights to constituency of Bosnians, Croats,
and Serbs, the institutional structures of BH and functions of the Dayton Peace
Agreement, the Constitutional Court relied on the conclusions presented in conjunction with Article 1 of the RS Constitution. The Constitutional Court noted that
unlike the Constitution of the RS, the Constitution of the Federation of BH does
provide for the proportional representation of Bosniacn, Croats, and others in several governmental bodies. However, the Constitutional Court has also underlined
the fact that in certain cases it reserves a privilege to the Bosnian and Croat representatives to block the decision-making process, which leads to the need of careful reviewing of these institutional mechanisms in terms of collective equality of
constituent peoples.
The Constitutional Court concluded that Bosnians and Croats, on the basis of
the contentious Article I.1(1) of the Constitution of the Federation of BH, enjoy
a privileged position which cannot be legitimized since they are not considered to
be a de facto endangered minority either at the Federation level nor at the BH level.
However, as the applicant’s request regarding the constitutionality of the mentioned Article of the Constitution of the Federation of BH was concerned not only
with the collective equality of constituent peoples, but also with discrimination
against individuals, particularly refugees and displaced persons regardless of their
ethnicity, the Constitutional Court has considered this aspect of the applicant’s
request.
Considering all the circumstances, the Constitutional Court of BH concluded
that the designation of Bosnians and Croats as constituent peoples in Article I.1(1)
of the Constitution of the Federation of BH has a discriminatory effect and also violates the right to the freedom of movement and residence and the right to property as
guaranteed by Article II(3) and (4) taken in accordance with Article II(5) of the BH
Constitution. Moreover, it has been noted that the aforementioned provision of the
Constitution of the Federation of BH violates Article 5(c) of the Convention on the
Elimination of All Forms of Racial Discrimination and the right to collective equality
following from the text of the BH Constitution as outlined above.
The Constitutional Court thus declared the wording “Bosnians and Croats as constituent peoples, along with Others” as well as “in the exercise of their sovereign
rights,” contained in Article I.1(1) of the Constitution of the Federation of BH, unconstitutional. The decision was made by a majority vote, with five votes to four.
In this way, the Constitutional Court, interpreting the provisions of the BH
Constitution and of international conventions and agreements to which the
Constitution refers, determined the substance of the rights of constituency. Thus the
Constitutional Court declared three ethnic groups—Bosnians, Croats, and Serbs—
constituent, and therefore equal, across the entire territory of BH, no matter where
they lived.
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I•CON 11 (2013), 447–465
3. The realization of the principle of constituency of
peoples in the constitutional system of BH
3.1. Institutions of BH
(a) The House of Peoples of the Parliamentary Assembly of BH
The Parliamentary Assembly of BH consists of two chambers: the House of
Representatives and the House of Peoples. The citizens of BH are represented in the
House of Representatives. The constituent peoples—Bosnians, Serbs, and Croats—
are represented in the House of Peoples. Article IV(1) of the BH Constitution sets out
the structure and election procedure for the House of Peoples of the Parliamentary
Assembly of BH as follows:
The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including
five Croats and five Bosniacs) and one-third from the RS (five Serbs). a) The designated Croat
and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and
Bosniac Delegates to the House of Peoples of the Federation. Delegates from the RS shall be
selected by the National Assembly of the RS. Thus, the BH Constitution established a system of indirect election of delegates
to the House of Peoples and the Election Law of BH described in detail the electoral
procedure.
From the above-mentioned constitutional provisions, it follows that the structure of
the House of Peoples of the Parliamentary Assembly of BH expresses the interests of
the constituent peoples. In this way, the representation of interests of the entire body
of each constituent ethnicity is broken up by linking ethnic representation to the entity
affiliation. Specifically, in accordance with the current constitutional and legislative
arrangements, the ethnic interests of the Serbs from the Federation of BH and Bosnians
and Croats from the RS are not represented in the House of Peoples of the Parliamentary
Assembly since these citizens have neither the right to be elected to nor to vote for delegates of the House of Peoples from among their constituent people. It should also be
noted that members of other ethnic minorities are not represented in the House.
In order to achieve the rights to constituency, there is a constitutional mechanism
for protecting vital interests of constituent peoples which provides: “A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosnian, Croat, or Serb people by a majority of, as appropriate, the Bosnian,
Croat, or Serb delegates.”11 In this way, the delegates from any constituent people can
stop the majority decision pertaining to any matter that is the subject of decision making, since the Constitution of BH does not specify the range of issues that may be considered to be of vital national interest. Finally, if the efforts to harmonize positions fail,
the Constitutional Court of BH decides on such request. However, as recent research
has shown, the mechanism for the protection of vital national interests of constituent
peoples in the past was not a major cause of blockages in the institutions of BH. Only
The Constitution of BH, Art. IV(3)(e).
11
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
455
four complaints were filed regarding the protection of vital national interests in passing legislation in the Parliamentary Assembly of BH.12
(b) The Presidency of BH
The members of the Presidency of BH are elected directly from the entities by a majority in the first-past-the-post system. The Presidency of BH is representative of ethnic
equality of the three constituent peoples since its structure is determined by Article V
of the Constitution which provides:
The Presidency of Bosnia and Herzegovina shall consist 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 RS.13 It is evident that the members of the BH Presidency are, in fact, elected by the citizens
of the entities, and not by the constituent peoples whom the Presidency represents. We
can thus conclude that there is a complete mismatch between the prescribed structure
of the collective head of the state of BH and the method of electing the members of this
body. Namely, it is clear that, in its structure, the Presidency of BH represents the constituent peoples: Serbs, Croats, and Bosnians. However, the election procedures for the
Presidency of BH suggest that its members, in fact, have the mandate to represent the citizens of the entities from which they were elected, and not the constituent peoples of BH.
Such a constitutional arrangement leads to Bosnians and Croats, who are registered
to vote in the RS, being denied the right to nominate and elect their member of the
Presidency of BH in the RS, as well as preventing Serbs, who are registered to vote in
the Federation of BH, from electing their representatives. This means that the passive
voting rights of citizens of the RS, who are not Serbs, are completely excluded, as well
as of citizens of the Federation who are not Bosnians and Croats. In this way, almost
a third of voters are not able to elect their ethnic representatives in the Presidency
of BH, nor a candidate for the Presidency. It should be noted that members of other
ethnic minorities are not entitled to nomination to this position. “However, given the
manner of the elections, expression of the will of the constituent peoples is mediated
through entities and, consequently it was impaired.”14
(c) The Council of Ministers of BH
The provision of Article V(4)(b) of the Constitution of BH stipulates that “. . . no more
than two-thirds of all Ministers may be appointed from the territory of the Federation.”
The right to constituency regarding the structure of the Council of Ministers is ensured
by the provision of Article V(4) of the BH Constitution, which stipulates: “The Chair shall
also nominate Deputy Ministers (who shall not be of the same constituent people as their
See Miraščić Dženeta & Begić Zlatan, Pravna priroda bosanskohercegovačkog pluralnog društva i najznačajnije
specifičnosti njegovog savremenog ustavnog uređenja [Legal Nature of the Pluralistic Society of Bosnia and
Herzegovina and Most Important Specificities of the Current System], 11 Revus—Eur. Const. Rev. 73,
85–92 (2009).
13
The Constitution of BH, Art. V(1)(a).
14
Kasim Trnka, Ustavno Pravo 207 (2006).
12
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I•CON 11 (2013), 447–465
Ministers). . . .” The cited constitutional norms indicate that the members of the Council
of Ministers do not need to belong to one of the constituent peoples, but if this is the case,
then the ministers and deputies of the same ministry cannot belong to the same constituent peoples. It is evident that the concept of constitutional arrangements regarding the
composition of the Council of Ministers was in line with the formation of efficient government, which was to be constituted on the basis of criteria of competence, as the cited
constitutional norm does not insist on an ethnic representation at the ratio of 1/3:1/3:1/3.
However, this constitutional principle is relativized by passing the Law on the
Council of Ministers of BH. The principle of parity representation of Bosnians, Serbs,
and Croats in the Council of Ministers of BH was legally established by this Law. Thus,
Article 6(1) of the Law provides:
The overall composition of the Council of Ministers shall, throughout its mandate, be fully in
accordance with the Constitution of Bosnia and Herzegovina, in particular with Article V 4(b)
and IX 3, and that, in accordance with that, the composition of the Council of Ministers will
ensure equal representation of the constituent peoples of Bosnia and Herzegovina. Article 6(3) stipulates that at least one seat be reserved for a representative of other
ethnicities.
The Chairman of the Council of Ministers is appointed by the Presidency of
BH; the appointment has to be confirmed by the House of Representatives of the
Parliamentary Assembly of BH. Then the Chairman appoints ministers and their deputies who are again confirmed by the House of Representatives. Thus, the nomination
and election of the Council of Ministers is to be within the institutions which, given
the manner of their election, represent the interests of the citizens (the Presidency of
BH and the House of Representatives), but due to the prescribed ethnic representation
of Bosnians, Croats, and Serbs, prescribed by the Law on the Council of Ministers, the
Council election procedures are based on the principle of constituent peoples with a
minimum representation of others.
3.2. Institutions of entities
The constitutional arrangement determining the practice of the Constitutional Court of
BH indicates that the constituency, as a collective right, implies the constitutional guarantee of ethnic equality of Bosnians, Serbs, and Croats, not only at the state level but
in each entity, as well. Since the consent on harmonization of the entity constitutions
with the BH Constitution in the manner indicated by the Constitutional Court had not
been achieved, the High Representative imposed a number of amendments to the entity
constitutions, specifically bearing on the provisions of the Constitution of the Federation
of BH and the Constitution of the RS concerning the establishment and exercise of constitutional rights on the constituency of Bosnians, Serbs, and Croats in the entities.
(a) The House of Peoples of the Federation of BH and the Council of
Peoples of the RS
The Parliament of the Federation of BH consists of two chambers: the House of
Representatives and the House of Peoples. The citizens of the Federation of BH are
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
457
represented in the House of Representatives. The constituent peoples—Bosnians, Serbs,
and Croats as well as other national minorities, are represented in the House of Peoples.
The Constitution of the Federation of BH stipulates the basic principles concerning
the structure and election of the House of Peoples of the Federation of BH. In this
regard, Article IV(A.2)(6)15 of the Constitution of the Federation of BH states:
(1) The House of Peoples of the Federation Parliament shall be composed on a parity basis so
that each constituent people shall have the same number of representatives. (2) The House of
Peoples shall be composed of 58 Delegates; 17 Delegates from among each of the constituent
peoples and 7 Delegates from among the Others.
Pursuant to Article IV(A.2)(8)(1)16 of the Constitution of the Federation of BH, the
delegates to the House of Peoples of the Federation Parliament “. . . shall be elected by
the Cantonal Assemblies from among their representatives in proportion to the ethnic
structure of the population. . . .” Article IV(A.2)(8)(4) stipulates that, in each canton,
the delegates to the House of Peoples of the Federation of BH from among certain
peoples “. . . shall be elected by their respective representative in the legislative body of
the Canton. . . .” The Constitution of the Federation of BH does not regulate the election of representatives of the others, but, in accordance with the above cited article,
that is left to the legislator.
Article 69 of the Constitution of the RS provides:17 “The legislative authority in the
RS shall be performed by the National Assembly and the Council of Peoples.” The same
article also states that other laws and regulations approved by the National Assembly
concerning the issues of vital national interest of any of the constituent peoples shall
come into force only after their adoption by the Council of Peoples.
The Council of Peoples of the RS is established, as noted above, by the intervention
of the High Representative. It appears that it was supposed to be a counterpart to the
House of Peoples in the Federation of BH. However, the role of the Council of Peoples
of the RS is reduced compared to the role of the House of Peoples of the Federation of
BH as it is focused only to issues of vital interest of constituent peoples.
Article 71 of the Constitution of the RS which was supplemented by Amendment
LXXVIII, passed by the High Representative, establishes parity in the composition
of the Council of Peoples and stipulates that the Council of Peoples shall have eight
members from each of the constituent peoples and four members from other ethnicities. Article 71 sets out an indirect method of election of delegates to the Council of
Peoples by means of a caucus of the constitutive peoples in the National Assembly. If
the number of representatives in the caucus of the National Assembly is less than the
stipulated number of members of the caucus in the Council of Peoples, the additional
number of delegates shall be elected by a special caucus of the representatives in the
RS municipal assemblies.
The delegates to the House of Peoples of the Federation of BH as well as the delegates to the Council of Peoples of the RS have the ability to use the mechanism for
The original provisions of this Article are replaced by Amendment XXXII.
The original provisions of this Article are replaced by Amendment XXXIV.
17
The original provisions of this Article are replaced by Amendment LXXVI, ¶ 1.
15
16
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the protection of vital national interest in a similar way as is the case with the House
of Peoples of the Parliamentary Assembly of BH. The mechanism of the protection of
vital national interest is used much more in entity institutions than in the House of
Peoples of BH. The representatives of other ethnicities do not have the ability to use
the mechanisms of protecting their vital national interests.
(b) The President and Vice Presidents of the Federation of BH and the
President and Vice Presidents of the RS
In accordance with Article IV(B.1)(1)18 of the Constitution of the Federation of BH,
the president of the Federation shall have two vice presidents from different constituent peoples. In electing the president and two vice presidents of the Federation,
at least one third of the delegates of the respective Bosnian, Croat, or Serb caucuses
in the House of Peoples may nominate the president and two vice presidents of the
Federation of BH.19
Common lists of candidates for president and vice presidents must be accepted by a
majority vote in the House of Representatives, and then by a majority vote in the House
of Peoples, including the majority of each constituent people’s caucus. However, if the
needed majority is not obtained, the procedure shall be repeated.20 In the case that in
the repeated procedure the joint list is rejected by one of the Houses, the nominated
persons shall be considered elected by approval of the list in only one House.21
The role of delegates from other ethnicities in the House of Peoples has been specified by the Election Law of BH. These delegates can participate in the selection of candidates for president and vice presidents of the Federation of BH but without forming
their caucus, and their vote is not counted when calculating the majority in the caucuses of the constituent peoples.22 It should be noted that the members of other ethnic
minorities are not entitled to nomination to this position.
The constitution of the RS includes several provisions concerning presidential and
vice-presidential election procedures in the RS. Article 83 of the RS Constitution stipulates that “[t]he President and Vice Presidents of the Republic shall be elected for
a four-year mandate by the citizens through direct and secret ballot.”23 Amendment
XL(5) to the Constitution of the RS states:
The President of the Republic and Vice Presidents of the Republic shall be directly elected from
the list of the candidates for the President of the RS, so that a candidate who wins the highest
number of votes shall be elected President while the Vice Presidents shall be elected candidates
from the other two constituent peoples who win the highest number of votes after the elected
President of the Republic.
The original provisions of this Article are replaced by Amendment XI, and then supplemented by
Amendment XLI to the Constitution of Federation of BH.
19
The Constitution of Federation BH, Art. IV.B.1(2)(1).
20
The Constitution of Federation BH, Arts. IV.B.1(2)(2) and IV.B.1(2)(3).
21
The Constitution of Federation BH, Art. IV.B.1(2)(4).
22
Election Law of BH, Art. 9.16.
23
The original provision of this Article are replaced by Amendment XL.
18
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
459
The Election Law of BH stipulates that the president and two vice presidents shall
be elected directly from the territory of the RS by voters registered to vote in the RS.
Thus the president and the vice presidents of the RS are elected in the territory of
this entity according to the majority first-past-the-post vote including one-citizen–
one-vote concept. Positive constitutional and legal arrangements leave some voters
opting between candidates for this function. However, considering the ethnic structure of the population produced by ethnic cleansing as well as the current political situation, the president of the RS will be elected only from the Serb constituent
people for a long time. The situation is similar in the case of electing members to
the National Assembly of the RS, where the application of the one-citizen–onevote principle produces an absolute majority of representatives affiliated with the
Serbian constituent people.24 It should be also noted that the persons belonging to
national minorities cannot be nominated as candidates for president and vice presidents of the RS.
This condition is largely the result of the introduction of the so-called P-2 list which
enables citizens to vote in municipalities of their temporary residence, thus allowing
a large number of citizens who used to live in the RS before the war to exercise their
right to vote in the Federation of BH, and vice versa:
In past elections the P-2 list legitimized ethnic cleansing. Mr. Frowick, at the time when he was
the head of the Provisional Election Commission, in my opinion, complied with the extremists
in government from the Croatian and Serbian people. He turned Annex 3, where Article 4
states that the voters will vote in the place of residence determined by the 1991 Census and it is
specified that a citizen may vote in place of current stay, into a rule, legitimizing ethnic cleansing, which is contradictory to Annex 7 of the Peace Agreement.25
The position of the president of the RS is much stronger than the position of the
president of the Federation of BH. The RS president makes decisions independently.
The vice presidents have no significant powers. Thus, when the RS President Mr Milan
Jelić died in 2007, his competencies were taken over by the president of the National
Assembly of the RS, rather than by the vice presidents. In contrast, the president and
two vice presidents of the Federation of BH make decisions as a collective body. The
president of the Federation must achieve agreement with both vice presidents in the
decision-making process.
For the policy of ethnic cleansing and its results see Marcus Banks, Ethnicity: Anthropological Constructions
164–169 (2005); R. J. Crampton, Eastern Europe in the Twentieth Century and After 431–432 (2d ed.
2003); Marcus Cox, The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia
and Herzegovina, 3 Int’l & Comp. L. Q. 599, 620–622 (1998); Michael Mann, The Dark Side of Democracy:
Explaining Ethnic Cleansing 353–362 (2005); Cathie Carmichael, Ethnic Cleansing in the Balkans:
Nationalism and the Destruction of Tradition (2003); André Nollkaemper, Multi-level Accountability: A Case
Study of Accountability in the Aftermath of the Srebrenica Massacre, in The Shifting Allocation of Authority,
supra note 5, 345, at 347–352; Eric D. Weitz, A Century of Genocide: Utopias of Race and Nation 190–235
(2003); Tone Bringa, Averted Gaze: Genocide in Bosnia-Herzegovina 1992–1995, in Annihilating Difference:
The Anthropology of Genocide 194, 194–225 (Alexander Laban Hinton ed., 2002).
25
Omer Ibrahimagić, Državno Uređenje Bosne I Hercegovine [State Organization of Bosnia and Herzegovina]
198 (2005).
24
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I•CON 11 (2013), 447–465
(c) The government of the Federation of BH and the government of the RS
In accordance with the prescribed structure and method of elections, the government of the Federation of BH represents the interests of its constituent peoples. The
prescribed structure of the government of this entity determines and predominantly
defines the method of its election, which can be considered to be a reflection of the
ethnic concept. For, although, in the end, the composition of the government of the
Federation of BH is confirmed by the House of Representatives of the Federation, that
is, the body elected by the citizens of the entity in accordance with the one-citizen–
one-vote concept, this House of Parliament is limited in passing final decisions by the
stipulated ethnic structure of the government.
In terms of the ethnic structure, Article IV(B.2)4(1)26 of the BH Constitution stipulates that the government of the Federation of BH “. . . shall be composed of 8 Bosnian,
5 Croatian and 3 Serbian ministers. The same provision stipulates . . . [that] one other
may be nominated by the Prime Minister/President of the Government from the quota
of the largest constituent people.” The article also stipulates that the Prime Minister
“. . . shall have two Deputy Prime Ministers from different constituent peoples. . . .”
Article IV(B) of the BH Consitution states that the House of Representatives of
the Federal Parliament, which represents the interests of the citizens of this entity,
­confirms the appointment of the government of the Federation of BH, while the interests of constituent peoples are taken into account at the appointment stage. In fact,
pursuant to Article IV(B.2)(5)(1) of the BH Constitution, one of the most important
responsibilities of the President of the Federation of BH is the appointment of the
­government. However, in accordance with the stipulated provision the “[p]resident
of the Federation, in agreement with both Vice Presidents of the Federation, shall
appoint the Government of the Federation. . . .”
The structure of the RS government also reflects the concept of the constituency of
Bosnians, Serbs, and Croats in this entity. Article 92 of the RS Constitution27 stipulates:
In the transitional period until the full implementation of Annex 7, the Government of the RS
(Prime Minister and 16 ministers) shall be comprised of eight ministers from the ranks of the
Serb, 5 from the ranks of the Bosniac and 3 from the ranks of the Croat people. One Minister
from the ranks of [o]ther [ethnicities] may be appointed by the Prime Minister from the quote
of the largest constituent people. The provision of the same Article stipulates that the government is headed by a
prime minister who is assisted by two deputies, each selected from among a different
constituent people.
Pursuant to Article 94 of the RS Constitution,28 a candidate for prime minister is
proposed independently by the president of RS. The president does not need the consent of the two vice presidents, as is the case in the Federation of BH. As stipulated by
Article 93(2) of the RS Constitution, “the Government shall be elected if the majority
The original provisions of this Article are replaced by Amendments XII and XLIV.
The original provision of this Article is supplemented by Amendment LXXXIV.
28
The original provision of this Article is supplemented by Amendment XLI.
26
27
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
461
of the total numbers of deputies of the Assembly have voted for it.” Therefore, the
entire election and appointment of the RS government, in accordance with the applic­
able constitutional provisions, takes place within the institutions elected in accord­
ance with the one-citizen–one-vote rule. However, the elected officials, who are to
represent the interests of the citizens of this entity in accordance with the manner of
their election, should take into account the ethnic element when electing the government of the RS, because the manner of the election of this institution aims at achieving the principle of constituency of Bosnians, Croats, and Serbs.
(d) The Constitutional Court of the Federation of BH and the
Constitutional Court of the RS
Pursuant to Article C(3)(9)29 of the Constitution of the Federation of BH, the structure of the Constitutional Court of the Federation of BH is predominantly based on the
principle of representation of constituent people. This constitutional norm stipulates
that the Constitutional Court shall be composed of nine judges, of whom at least two
come from any of the three constituent people, and one from another ethnic group.
The Council for Protection of Vital Interests of Constituent Peoples has been established pursuant to Article IV(A.6)(17b)30 as a part of the Constitutional Court. It is
composed of seven members, two from each constituent people and one from another
ethnic group. This Council decides in the cases of vital national interest submitted by
the delegates of constituent peoples from the House of Peoples of the Federation of
BH. The decision on the violation of vital national interests is enacted by the votes of
at least of two judges.31
The mode of election of judges to the Constitutional Court of the Federation of BH
is also an expression of the principle of constituency of Bosnians, Serbs, and Croats in
this entity. Thus, the judges of the Constitutional Court of the Federation32 are nominated by the president of the Federation of BH with the consent of both vice presidents. Their appointment is conducted in the House of Peoples of the Federation of BH
by a majority of delegates’ votes. Thus, the entire procedure of the election of judges to
the Constitutional Court of the Federation of BH is done within the body representing
ethnic interests of constituent peoples.
The president of the RS suggests to the National Assembly candidates for the
judges of the Constitutional Court, as proposed by the High Judicial and Prosecutorial
Council, which finally appoints the judges.33 However, regardless of the fact that the
election of the judges of the Constitutional Court of the RS takes place within the
institutions elected according to a purely civil concept (one citizen–one vote), the election of officials in this institution is restricted by the constitutionally established ethnic
structure of this body, which states that the method of selecting judges to this Court
31
32
33
29
30
The original provision of this Article is replaced by Amendment XLVIII.
The provisions of this Article are supplemented by Amendment XXXVIII.
The Constitution of Federation BH, Art. IV.A(18a), which was added by Amendment XL.
The Constitution of Federation BH, Art. C.2(6)(2).
The Constitution of the RS, Art. 80(3).
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I•CON 11 (2013), 447–465
must reflect the principle of constituency of Bosnians, Serbs, and Croats, as well as the
representation of other ethnicities.
In accordance with Article 11634 of the RS Constitution, the structure of the
Constitutional Court of the RS is the same as in the Federation of BH. The Council for
the Protection of Vital Interest of Constituent Peoples, as a body of the Constitutional
Court of the RS, consists of seven members, two from each constituent people and
one member from other ethnicities. This Council decides in the cases of vital national
interests submitted by the delegates of constituent peoples from the Council of Peoples
of RS. Although the RS Constitution, just as the BH Constitution, requires a minimum of two votes to approve a decision on the violation of vital national interests of
any constituent people, Article 52(2) of the Rules of Procedure of the Constitutional
Court stipulates that such decision requires a two-third majority vote of the judges.
The Constitutional Court of RS adopted the Rules of Procedure with the aim to prevent the achievement of ethnic equality of the Bosnian and Croat constituent peoples
by using the mechanism of the protection of vital national interests. Thus, instead of
protecting the Constitution of RS, the Constitutional Court of RS violates its provisions by adopting the Rules of Procedure.
Under such circumstances, in September 2009, the Bosnian Caucus in the Council
of Peoples of RS instituted proceedings before the Constitutional Court of BH to check
the constitutionality of Article 52 of the Rules of Procedures of the Constitutional
Court of RS, arguing that the mentioned provision violates both the RS Constitution
and the BH Constitution. This appeal was rejected as inadmissible on the grounds that
the Constitutional Court of BH lacks jurisdiction to rule in the matter. In this way, the
right to constituency of Bosnians and Croats, as the constituent peoples who are in a
minority position in the RS, is significantly limited.
4. Achievement of the constituency of peoples in cantons
of the Federation of BH
The Federation of BH is composed of ten federal units (cantons). Article V(1)(1)(c) of
the BH Constitution provides that each canton, within its jurisdiction, ensures that
members of the constituent peoples and other ethnicities are proportionally represented in the cantonal ministries in accordance with the 1991 census. Pursuant to
Article V(1)(1)(c), proportional ethnic representation is needed for the final implementation of Annex 7 regarding the return of refugees.
The candidate for prime minister is appointed by the chairman of the cantonal
assembly. Then the candidate for prime minister proposes candidates for ministers.
The government, consisting of the proposed ministers from a given canton, begins its
duties once it is confirmed by the assembly of that canton. Due to the prescribed ethnic
representation of constituent peoples, stipulated by the BH Constitution, the election
The original provisions of this Article are supplemented by Amendments LXXXVIII and CXXI.
34
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
463
procedures of cantonal governments are based on the principle of constituent peoples
with a minimum representation of the other ethnicities.
Members of the cantonal assemblies are elected directly by the proportional electoral system known as the Saint-Lague system. Saint-Lague is a two-tier proportional
electoral system. Three-quarters of mandates are assigned to lower electoral units
inside entities, whereas the remaining quarter of mandates are compensatory, and are
assigned at the level of each entity (Republic of Srpska and Federation of BH), which
act as a single electoral unit.
There is no constitutional guarantee for a certain minimal proportional representation of all of three constitutive peoples in the legislative bodies. Due to a radically altered
ethnic structure of the population in BH during the war, the Serbian constituent people
are in a minority position in most cantons. Because of the altered ethnic structure, as
well as the election procedure (one citizen–one vote), the Serbian constituent people are
not represented in most cantonal assemblies. Thus, the caucus of the Serbian constituent people of the House of Peoples of the Federation of BH was incomplete in the past,
since the Serbian delegates were elected from the cantonal assemblies.
However, Article V(2)(7)(2) of the Constitution of the Federation of BH stipulates
that the precondition for establishment of the caucus of constitutive peoples in cantonal assemblies is the existence of at least one representative from certain constituent
people in that assembly. If we take into account Articles V(2)(7a)(2) and (V)(2)(7b)(1)
of the Constitution of the Federation of BH, which provide that the initiation of the
mechanism for the protection of vital national interests is entrusted to the chairman
of the cantonal legislative body and his deputies as well as to the caucus of constitutive peoples, then it is clear that the right of protection of vital national interests is
significantly limited in those cantons where one of the constituent peoples is not represented in the assembly.
5. Ethnic concept vs. citizen equality: The Sejdić-Finci case
On July 3 and August 18, 2006, two BH citizens, Mr Dervo Sejdić and Mr Jakob Finci
instituted proceedings before the European Court of Human Rights (ECtHR) arguing
that they were prevented by the Constitution of BH, and the corresponding provisions
of the Election Law of BH, from running for Presidency and for the House of Peoples of
the Parliamentary Assembly of BH solely on the ground of their Roma and Jewish origins. They relied on Articles 3 (prohibition of inhuman and degrading treatment), 13
(right to an effective remedy), and 14 (prohibition of discrimination) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
on Article 3 of Protocol No. 1 (right to free elections), and on Article 1 of Protocol No.
12 (general prohibition of discrimination) to the Convention.
The first question which had to be addressed regarding their applications is whether
the applicants may claim to be “victims”. In this regard, the Court concluded as follows:
In the present case, given the applicants’ active participation in public life, it would be entirely
coherent that they would in fact consider running for the House of Peoples or the Presidency.
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The applicants may therefore claim to be victims of the alleged discrimination. The fact that
the present case raises the question of the compatibility of the national Constitution with the
Convention is irrelevant in this regard (see, by analogy, Rekvényi v. Hungary [GC], no. 25390/94,
ECHR 1999-III).
As regards the responsibility of BH for the contentious situation, the Court concluded as follows:
The Court notes that the Constitution of BH is an annex to the Dayton Peace Agreement, itself
an international treaty (see Jeličić v. BH (dec.), no. 41183/02, ECHR 2005-XII). The power to
amend it was, however, vested in the Parliamentary Assembly of BH, which is clearly a domestic body. In addition, the practice set out in paragraph 17 above confirms that the powers of
the international administrator for BH (the High Representative) do not extend to the State
Constitution. In those circumstances, leaving aside the question whether the respondent State
could be held responsible for putting in place the contested constitutional provisions, the Court
considers that it could nevertheless be held responsible for maintaining them.
Finally, because of the applicants’ inability to be eligible for election to the House
of Peoples of BH, in 2009, in the case Sejdić/Finci v. BH, the ECtHR ruled in favor of
the applicants, noting a violation of Article 1435 of the ECHR as well as of Article 3
of the Convention Protocol No. 1.36 Because of the applicants’ inability to run for the
presidency of BH, the ECtHR also decided in favor of the applicants, noting that there
is a violation of Article 1 of the Protocol No. 1237 of the ECHR.
However, similar observations can be made in terms of the election of the president and vice presidents of the RS as well as the president and vice presidents of the
Federation of BH.
6. Conclusion
Institutional equality of ethnic groups is a very important political and constitutional
issue in BH. It should be remembered that the institutional guarantees of the equal
status of Bosnians, Serbs, and Croats, which is the essence of constituency, were the
ECHR, Art. 14 states as follows:
35
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status.
ECHR, Protocol 1 Art. 3 states as follows:
36
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot,
under conditions which will ensure the free expression of the opinion of the people in the choice of the
legislature.
ECHR, Protocol 12 Art. 1 states as follows:
37
(1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
(2) No one shall be discriminated against by any public authority on any ground such as those mentioned
in paragraph 1.
Constituency of peoples in the constitutional system of Bosnia and Herzegovina
465
precondition for stopping the war and maintaining the peace. Constitutionally guaranteed ethnic equality of Bosnians, Serbs, and Croats can indeed help decrease the
insecurity and tensions among them, and secure the removal of obstacles to the distribution of political power.
It is clear that any insistence on a parity or minimal representation of a certain
group in institutions of authority leads to the distortion of the principle of equality
of active and passive electoral rights of citizens. However, given the current demographic situation in BH, which is largely the result of the war and ethnic cleansing,
prescribing the parity representation of constituent peoples and the minimal representation of other ethnicities in entity institutions can be considered as indispensable
from the standpoint of efforts aimed at returning refugees and displaced persons to
their homes. International standards include such a possibility, if it is in the interest
of building a democratic society. An example of this is overrepresentation of national
minorities in the parliaments of contemporary democratic states.
However, the fact that the special political rights of constituent peoples affect political rights of citizens of BH who do not belong to constituent peoples, as the ECtHR
found in the Sejdić-Finci case, cannot be ignored. By its decision in the Sejdić-Finci
case, the ECtHR confirmed that BH, taking into account all its specificity, should find a
“lucky” combination of civil and ethnic constitutional model.