Race as a barrier to standing for public office: the case of Sejdic and Finci

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The case concerns two applicants of Jewish and Roma origin, who are barred by law from standing for election in the House of Peoples of the Parliamentary Assembly and for the state presidency in Bosnia and Herzegovina.

Facts

The applicants, Dervo Sejdic (who is of Roma origin) and Jakob Finci (who is of Jewish origin), are both citizens of Bosnia and Herzegovina. The Bosnian Constitution makes a distinction between the ‘constituent peoples’ (Bosniacs, Croats and Serbs) and ‘others’ (Jews, Roma and of other national minorities). The House of Peoples of the Parliamentary Assembly and the Presidency are composed only of constituent peoples. The applicants complained that, despite being fully qualified and possessing experience, they were prevented by the Constitution from standing for election for the reason of their ethnicity, which was discriminatory and breached their elective rights.

 

The Court’s judgment

The Court explained that discrimination occurred every time persons in similar situations were treated differently, without an objective and reasonable justification and affirmed that difference in treatment based solely on a person’s ethnic origin was never capable of being objectively justified. The ECtHR acknowledged that the provisions limiting the eligibility and rights of the applicants were the result of power sharing mechanisms, put in place in Bosnia and Herzegovina after a fragile ceasefire. But whereas at the time of their introduction the provisions pursued a legitimate goal of restoring peace and preventing the inter-ethnic conflicts, since then the situation in Bosnia and Herzegovina had improved considerably, rendering them unacceptable in a democratic society. The court concluded that the applicants’ continued ineligibility to stand for election to the House of Peoples breached article 14 ECHR in conjunction with article 3 of Protocol No. 1.

 

Implementation

The Committee of Ministers has adopted numerous decisions and three interim resolutions (in 2011, 2012 and 2013) calling on the authorities to bring the constitutional and legislative framework into line with Convention requirements. Nevertheless, the Committee has noted that three general elections since the delivery of the judgment (in 2010, 2014 and 2018) have been held under discriminatory rules. In June 2019, the competent minister of Bosnia and Herzegovina was invited to a meeting of the Committee for an exchange of views on the strategy to implement the judgments, however the Committee noted the persisting difficulties in forming a new government. It called the political leaders to take all actions required in order to ensure that the continuing violation of the State’s obligations under the convention is brought to an end before the next elections in 2022. The high-level preparatory discussions engaged in April 2019 with the Secretariat under the Human Rights Trust Fund project urged the authorities to follow up on this initiative. The invitation to a competent minister of Bosnia and Herzegovina, to a meeting with the Committee was renewed and scheduled for December 2019. The government however had not been formed in time and the examination of the judgment was postponed. Since then, the new government had been created and a new meeting is planned for 2020.

 

NGO submissions

Numerous Rule 9.2 submission have been made by Minority Rights Group International (MRG) since the judgment became final in 2009 (May 2010, November 2011, December 2012, February 2014, November 2015, June 2016, September 2017, May 2019), the last one being a submission from April 2020. MRG had highlighted the measures necessary in order to fully comply with the judgment such as amendments to the Constitution and Electoral Law, the composition of the Presidency and of the House of Peoples. The NGO noted the failure of the government to address the violations, expressed concerns over the limited participation of minorities in the ad hoc Joint Parliamentary Commission tasked with preparing amendments to implement the judgment, and noted the lack of progress since the adoption of the Action Plan in 2012. In their lasted Rule 9.2 submission, MRG reiterates their call for the proper implementation of the judgment in order to end exclusion from political representation based on ethnicity and remarked with concern that, despite adopting an Action Plan, no credible efforts to execute the judgment have been made in the past 54 months. The NGO urged the Committee to keep the case under their supervision.

EIN Activity

The EIN Secretariat updates Minority Rights Group about developments in the case in the implementation monitoring procedure and advises the NGO about when and how to engage with the procedure.

 

Useful links

·       Judgment of the European Court of Human Rights

·       Summary of the case on Hudoc-Exec

·       Action Plan of the government

·       Rule 9 submission from Minority Rights Group