By Saida Mustajbegovic

Sarajevo, 20 December 2007 – Bosnia’s constitution is being scrutinised by the European Court of Human Rights in Strasbourg following complaints that it is discriminatory.

The European Court of Human Rights in Strasbourg is hearing three cases brought by citizens of Bosnia and Herzegovina on the grounds that the BiH constitution discriminates against them because of their ethnic background.

The first case was brought by Dervo Sejdic in June 2006. Sejdic belongs to Bosnia’s Roma community. In January 2007 Jakob Finci, who is Jewish, brought a case before the court, and in September this year a third case was brought by Ilijaz Pilav, a Bosniak from the smaller of BiH’s two Entities, the Republika Srpska, RS.

“We are simply deprived of the right to take part in elections, we are unable to exercise our passive civil right, the right to be elected,” Finci, who is head of BiH Jewish Community and Director of the BiH Civil Service Agency, told Balkan Insight.

A number of leading legal experts in Bosnia believe these appeals stand a good chance of success, in which case the country will have to remove relevant provisions from the state and Entity constitutions. But to do so would mean rejecting one of the key principles on which the Dayton Peace Agreement and the BiH Constitution are based.

Under the Dayton Constitution Bosnia’s tripartite Presidency consists of one Serb, one Bosniak and one Croat. The president and two vice-presidents in the two Entities, the BiH Federation and the RS, are elected on a similar basis, and similar arrangements apply to other senior appointments, the object being to ensure equal representation of the constituent peoples.

But the same arrangements exclude those citizens who are not Serb, Bosniak or Croat – classified under the Constitution as Others – from being elected. The also discriminate against Serbs in the BiH Federation and Bosniaks and Croats in the RS.

Dervo Sejdic and Jakob Finci are BiH citizens but they cannot stand for high office, in the Entities or at the state level, because they belong to an ethnic minority. Ilijaz Pilav belongs to one of the constituent peoples, but he lives in an Entity from where his ethnic group cannot be represented in the Presidency.

Yet the Constitution commits Bosnia and Herzegovina to adherence to the European Convention on Human Rights – which these provisions on ethnic representation clearly breach. Bosnia and Herzegovina ratified Protocol 12 of the Convention, which plainly states that electoral procedures for official posts must ensure equal treatment for all citizens, allowing all citizens to vote and all citizens to stand for election.

As Professor Kasim Trnka, a leading expert on constitutional law, sums up: “The Dayton constitution placed ethnicity in the foreground, at the expenses of the individual, and resulted in the dominance of collective rights over civil rights.”

Finci explained to Balkan Insight that his object in bringing the case was not to have a member of the Jewish community sitting in the Presidency but rather to uphold the basic civic rights of all citizens.

“This is an act of a citizen of BiH,” Finci said. “Only the voters can decide who will become a member of the Presidency. You cannot have a constitutional provision saying that someone who is not a Bosniak, a Croat or a Serb will not be entitled to take this post.”

Ilijaz Pilav from Srebrenica brought his case after his candidacy to become a member of the BiH Presidency was rejected ahead of the October 2006 elections on the grounds that he was a Bosniak living in the RS and only Bosniaks living in the Federation could run for this position.

“With this action I hope to draw attention to discriminatory provisions of the electoral laws in BiH – which is just one element in an insane constitutional structure,” said Pilav, adding that he is confident the Court will find in his favour.

President of the Czech Association of BiH, Vladimir Blaha, also agrees that minorities are exposed to constitutional discrimination compared to constitutive groups, Serbs, Croats or Bosniaks.

Constitutional inconsistencies concerning minorities have given rise to confusion and abuse.

For example, Igor Radojicic, who is officially registered as a Montenegrin, is the Speaker of the RS National Assembly. After the sudden death of RS President Milan Jelic, Radojicic was proposed as acting president.

However, the Bosniak caucus in the RS House of Peoples, the upper chamber of the parliament, vetoed Radojicic’s appointment, claiming that it would violate the constitutional provision stating that this post is reserved for a Bosnian Serb.

In spite of the clear constitutional provisions, the RS Constitutional Court rejected the veto and approved the appointment of Radojicic as acting president until fresh elections were held on December 6.

When Muhamed Alaim, deputy mayor in Sarajevo’s city-centre municipality, registered himself as Bosnian Muslim, and not as a Bosniak, which is the official name for one of the three constituent peoples, he was technically violating the constitution, which provides for Bosniak appointments rather than Bosnian Muslim, even though the two terms are generally assumed to be interchangeable.

“This kind of constitutional provision deprives individuals of the right to proclaim their identity and nationality in accordance with how they feel,” said Vanja Ibrahimbegović of the Association Alumni of the Centre for Interdisciplinary Postgraduate Studies at Sarajevo University.

“I feel Bosnian, and the Constitution of my country contains no such designation,” Ibrahimbegović told Balkan Insight. “National feelings and belonging does not depend on religious affiliations only, and in this context I affiliate my national identity with the country that is my homeland which I love, not with only one of the peoples living in this country and their confession (in my case Bosniak).”

She points out that under the current constitution of Bosnia and Herzegovina those who regard themselves as Bosnian and Herzegovinian have no right to run for the country’s Presidency.

The constitution regards citizens as Serbs, Croats, Bosniaks and Others, precluding any direct affiliation with the state of Bosnia and Herzegovina or with the nation of Bosnia and Herzegovina.

“An exclusively ethnic approach, which among other things determines the right to participate in political life, is contrary to the concept of inclusivity,” legal expert and leading human rights activist Srdjan Dizdarevic points out in a pamphlet titled Citizenship, Law and Rights. “The overall organization and functioning of the key state institutions are based exclusively on ethnic principle.”

According to Trnka and other experts, if the Strasbourg court finds in favour of the plaintiffs, Bosnia and Herzegovina will have no option but to amend its constitution accordingly.

“These cases are justified. It is obviously an instance of discrimination and I believe that the Court will hand down verdicts in favour of Finci, Pilav and Sejdic,“ Trnka said.

Finci points out that until now rulings by the Strasbourg Court have been respected by those who are bound to implement them.