CEDH · CASELAW;CLIN;ENG — 22 décembre 2009

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Bosnia and Herzegovina [GC] - 27996/06 and 34836/06 Judgment 22.12.2009 [GC] Article 1 of Protocol No. 12 Inability of a Roma and a Jew to stand for election to highest political office in the country: violation   Article 14 Discrimination Inability of a Roma and a Jew to stand for parliamentary elections: violation   Facts – The applicants, who are both citizens of Bosnia and Herzegovina, are respectively of Roma and Jewish origin and hold prominent public positions. At the time of the European Court’s judgment, Mr   Sejdić was the Roma Monitor of the OSCE mission to Bosnia and Herzegovina, whereas Mr   Finci was the Ambassador of Bosnia and Herzegovina to Switzerland. Under the 1995 Constitution of Bosnia and Herzegovina – which formed an annex to the 1995 Dayton Peace Agreement – only Bosniacs, Croats and Serbs, described as “constituent peoples”, were eligible to stand for election to the tripartite State presidency and the upper chamber of the State Parliament, the House of Peoples. The applicants complained that, despite possessing experience comparable to the highest elected officials in the country, they were prevented by the Constitution from being candidates for such posts solely on the grounds of their ethnic origin. Law – Article 14 of the Convention in conjunction with Article   3 of Protocol No.   1 (election to the House of Peoples of Bosnia and Herzegovina): As the House of Peoples is composed of members appointed by the legislature of the two Entities of Bosnia and Herzegovina and enjoys wide powers to control the passing of legislation, the Court held that election to the upper chamber of the Parliament fell within the ambit of Article   3 of Protocol No.   1. It reiterated that discrimination based solely on a person’s race could not be objectively justified in today’s democratic society. The applicants, who described themselves as being of Roma and Jewish origin respectively and who did not wish to declare affiliation with a “constituent people”, were, as a result of constitutional provisions, excluded from standing for election to the House of Peoples. Such exclusion pursued an aim broadly compatible with the general objectives of the Convention, namely that of the restoration of peace. When the impugned constitutional provisions were put in place they were designed to end a brutal conflict marked by genocide and “ethnic cleansing”. The nature of the conflict was such that the approval of the “constituent peoples” was necessary to ensure peace. This could explain the absence of representatives of the other communities – such as local Roma and Jewish communities – at the peace negotiations and the participants’ preoccupation with effective equality between the “constituent peoples” in the post-conflict society. However, the Court could not but observe the significant positive developments in Bosnia and Herzegovina after the Dayton Peace Agreement: in 2005 the former parties to the conflict had surrendered their control over the armed forces and transformed them into a small professional force; in 2006 Bosnia and Herzegovina had joined NATO’s Partnership for Peace; in 2008 it had signed and ratified a Stabilisation and Association Agreement with the European Union; in March 2009 it had successfully amended the State Constitution for the first time; and it had recently been elected a member of the United Nations Security Council for a two-year term starting in January 2010. Moreover, by ratifying the Convention and its Protocols thereto in 2002 without any reservations, the respondent State had specifically undertaken to review, within one year, its electoral legislation with the help of the Venice Commission, and to bring it in line with the Council of Europe standards where necessary. A similar commitment had also been given when ratifying the Stabilisation and Association Agreement. Lastly, while it was true that the Convention itself did not require the respondent State to totally abandon the peculiar power-sharing system, the opinions of the Venice Commission clearly demonstrated the existence of other mechanisms of power-sharing which did not automatically lead to the total exclusion of representatives of the other communities. In conclusion, the applicants’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacked objective and reasonable justification. Conclusion : violation (fourteen votes to three). Article 1 of Protocol No. 12 (election to the Presidency of Bosnia and Herzegovina): Whereas Article   14 of the Convention prohibited discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article   1 of Protocol No.   12 extended the scope of protection to “any right set forth by law”, thus introducing a general prohibition of discrimination. Therefore, whether or not elections to the Presidency fell within the scope of Article   3 of Protocol No.   1, this complaint concerned a “right set forth by law” and Article   1 of Protocol No.   12 was consequently applicable. The lack of a declaration of affiliation by the present applicants with a “constituent people” had also rendered them ineligible to stand for election to the Presidency. Since the notions of discrimination prohibited by Article   14 and by Article   1 of Protocol No.   12 were to be interpreted in the same manner, for the same reasons the constitutional provisions which had rendered the applicants ineligible for election to the Presidency must also be considered discriminatory. Conclusion : violation (sixteen votes to one). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes