Election troubles in Bosnia and Herzegovina

The European Court of Human has just before summer recess delivered a judgment in the case of Zornić v Bosnia and Herzegovina (3681/06, 15 July 2014) concerning the inability of the applicant to run for election to the Presidency of Bosnia and Herzegovina. Its constitution allows only candidates from free major ethnic groups or“constituent people” (Bosniaks, Croats and Serbs) to stand for elections to the Presidency. The applicant did not declare that she belongs to any of them and was therefore prevented from standing for election. She thereafter complained to the European Court invoking its earlier judgment in Sejdić and Finci v Bosnia and Herzegovina.  The Court accordingly held :

that identical constitutional provisions have already been found to amount to a discriminatory difference in treatment in breach of Article 14 taken in conjunction with Article 3 of Protocol No. 1 in Sejdić and Finci (ibid., § 50). Accordingly, and for the detailed reasons elaborated in Sejdić and Finci (§§ 47-49), the Court concludes that there has been a violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1 and a violation of Article 1 of Potocol No. 12 resulting from the applicantʼs continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina (para. 31).

Far more essential part of the judgment concerns the effective implementation of the judgment in the Bosnian domestic legal system. The Court, therefore, dedicated lengthy part of the judgment to the discussion of application of article 46 of ECHR, i.e. execution of judgment in previous case  Sejdić and Finci. It noted in para. 43 that :

now, more than eighteen years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina.

It seems that the Court has in this case again stumbled on limits of its powers.The execution of judgments of the ECtHR is not only unsatisfactory in Bosnia and Herzegovina but also in several of other Central and European states. Therefore, it must be improved so that the normative regulation would allow for direct execution of judgments and so that necessary amendments to national laws would be adopted. Reasons for their non-execution are multi-layered, however they can be located in the dynamic of post—conflict societies, remnants of the former totalitarian regime, excessively formal legislative and judicial cultures and lack of political will. The judges at the Court may consider “that the time has come” to adapt the Bosnian constitutional system to the European Convention of Human Rights, however the realities and dynamics of the Bosnian politics and society at large are far away from such changes. Proposals that   that insists on constitutional changes to the institutional framework of Bosnia and Herzegovina run the risk to unsettle the fundamentals of fragile cohabitation of three major ethnic groups and may potentially awaken old life-threatening tensions. It appears not certain that judges of the European Court are prepared to risk to tremble extremely fragile balance in order to guarantee “just” the right to stand for election of individuals not belonging to one of the constituent groups. There is much more at stake as only the right to stand for election.

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