The Constitution of Bosnia and Herzegovina recognises Bosniaks, Croats and Serbs as constitutive peoples along with “Others”. Those who identify themselves as others are ineligible to become members of the Presidency or the upper house of the Parliamentary Assembly. The complicated and complex structure of Bosnia and Herzegovina’s political system is well known and quite obvious. However, its plurality of ethnicities is not quite recognised. Any discussion about Bosnia´s pluralist society begins and ends with an explanation of the peaceful coexistence of three constitutive people, without any regard to the seventeen minority groups that are settled in Bosnia. Minority groups in Bosnia are facing many problems on an everyday basis, including but not limited to social and political exclusion, unemployment, lack of education, poverty, and poor living conditions in general.
There are five different laws related to minority groups and their rights, specifically: the law about the protection of minorities in Republika Srpska, the law about the protection of members of national minorities in the Federation of Bosnia and Herzegovina, the law about the protection of minority rights in Bosnia and Herzegovina, the law about the protection of members of national minorities in Tuzla Canton, and the antidiscrimination law of Bosnia and Herzegovina. According to these laws, national minorities are defined as citizens of Bosnia and Herzegovina who do not belong to the one out of three constitutive peoples, but are part of the same or similar ethnic origin, they use same or similar traditions, costumes, beliefs, language, culture and spirituality and they share the same or similar history and other symbols. According to these laws, any form of discrimination and/or assimilation against the will of national minorities is prohibited. In addition, these laws also indicate practices of minority groups, including financing; usage of signs and symbols; language as well as ways of founding minority group organisations. Consequently, national minorities have the right to organise themselves in organisations, associations and institutions; and are allowed to use and freely express their signs and symbols. The Federation of Bosnia and Herzegovina as well as Republika Srpska and Brčko District recognise and protect the right of each member of the national minority to use their language freely without interference, privately and publicly, orally, and in writing. Therefore, each and every member of a national minority has a right to use their name and surname in the language of the minority and to request that, as such, it be used by the public.Nevertheless, there is a difference between the entities in Bosnia and Herzegovina. There are required preconditions for providing education in the language of the minority group. Educational institutions in the Federation of Bosnia and Herzegovina are obligated in the framework of their education system (preschool, elementary and secondary school) to secure the education of the students who are members of the national minority in the language of that minority if they make at least one third of the population in the municipality, city or town; or to provide them the additional classes about the language, literature, history and culture of their minorities if they make up one fifth of the population and if the majority of their parents required so. On the contrary, in Republika Srpska, if the national minority has an absolute or relative majority in the municipality, city or the town, then the preschool, elementary and secondary school institutions are required to offer education in the language of that national minority as well. Additional classes in language, literature, history or culture in the language of the minority should be available if the majority of the members of the national minorities request it, in accordance with the curriculum and the book of rules. The education of the academic staff that will be able to lecture in the language of the national minority; the classrooms and other necessary preconditions for the proper conduction of the lecture as well as publishing of the books in the language of the national minority are to be financed by the entity authorities.
It is evident that legal frameworks for the proper conditions of minority groups’ well being exist, but there are certain issues that are still at stake. Bosnia has a perennial problem of political incompetency and exclusion. Political exclusion is allowed by the Constitution itself and enables the members of minority groups to enhance their political careers or to defend their national interest at the highest levels of the government in Bosnia and Herzegovina. This issue was addressed by Mr Dervo Sejdić and Mr Jakob Finici in the European Court of Human Rights.
Dervo Sejdić, a pre-war police officer and activist for Roma rights, understood during the war that without political engagement the Roma community would have little chance to improve their position in society. Hence, the Constitution of Bosnia and Herzegovina, the country in which he lives, did not allow him or any other member of the minority group to be a candidate for the highest political positions in the state. Eventually, after gaining the support of others, most notably support from lawyers, he decided to sue Bosnia and Herzegovina through the European Court of Human Rights. He was not the only man that took that step. Jakob Finci, the Jewish politician and president of the Jewish Community in Bosnia and Herzegovina, sued Bosnia for the same reason. As a politician, Finci wanted to continue his career after the war and help the Jewish community to gain a better position in society, but that was not possible due to the Dayton Peace Agreement Annex 4, the constitution, which indicates that only members of the constitutive peoples can be elected for the Presidency member or a member of the Parliament Assembly Upper house.
Due to possessing similar appellations to the European court, the appellations of Dervo Sjedić and Jacob Finci were merged and were processed by the Court. Sjedić and Finci claimed that they could not participate in the elections as each citizen of Bosnia and Herzegovina, they could not be elected for the highest political positions in Bosnia since their knowledge and capabilities were irrelevant, since the Constitution of Bosnia did not recognise them as a constitutive people. Consequently, they cannot be elected on the mentioned positions due to their ethnic orientation. According to their claims this constitutional exclusion directly permitted racial and religious discrimination on the state level, in violation of:
- Article 14 in conjunction with Article 3 of Protocol 1 of the European Convention of Human Rights, which provide for a prohibition on discrimination with regard to the right to free elections; and
- Article 1 of Protocol 12 of the European Convention of Human Rights, which establishes a right to equal treatment without discrimination.
Bosnia and Herzegovina responded to these claims by arguing that the Constitution, accordingly all rules that derive from it, were negotiated at the same time as the Dayton Peace Agreement and therefore the state did not have the power or authority to amend them. Also, all citizens in Bosnia have the right to register for voting, to be a candidate and be elected; minorities may be candidates and may be elected for the House of Representatives (the lower house of the Parliament). Even if those laws and rules are discriminatory, they have the legitimate justification for their limitations of the democratic right of all citizens. Correspondingly, no one should ever exclude the fact that the main intention of the Dayton Peace Agreement, as well as the structure of the constitution, was to end the war, establish and preserve the peace alongside with guaranteeing the equal representation of all three constituent peoples in the legislative branch of the government.
After the examination of evidence and a public hearing, the Grand Chamber of the European Court of Human Rights reached a verdict in the Sejdić-Finci case on the December 22, 2006. The Court found that the Constitution and Election Law of Bosnia and Herzegovina set the restrictions that directly discriminated the minority groups. Subsequently, the Court also confirmed that Bosnia and Herzegovina had breached the Protocol 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which called for non-discrimination and equal treatment.
The Court also found a violation of Article 14 of the European Convention of Human Rights, which provides for freedom from discrimination, taken in conjunction with Article 3 of Protocol No. 1, which protects free elections to the legislature, as a result of the ineligibility of ‘Others’ – including national minorities – to stand for election to the House of Peoples.
Thereupon, Bosnia and Herzegovina is stuck between the “strong” principles of leading politicians and political parties; and a prosaic reality. And everyone from politicians to regular citizens in Bosnia blames the constitution for the political instability and wide political exclusion. Evidently, Bosnia needs constitutional reform alongside reform of the Electoral law. In that manner, within the past years Bosnia had two attempts to change the constitution; the international community initiated both. The so-called April package of constitutional reform from 2006 and Butmir talks from 2009, which offered the solution for the Sejdić-Finci case within the constitution, both failed. Some of Bosniak and Bosnian Croat representatives in the Parliamentary Assembly voted against claiming that this proposal undermines the authority of the Bosnia and Herzegovina as a state, since some of the state powers would be transferred to the governments at entity level; and that the indirect election of the presidency through the Parliamentary Assembly will allow representatives of the entity to use veto on the nomination of the presidency members, which for them is not acceptable. Since 2009 there were no other attempts for change of the constitution or any new proposal on the implementation of the Sejdić-Finci judgement. The European Union made it clear that Bosnia and Herzegovina will not be able to integrate without the constitutional reform (implementation of the Sejdić-Finci judgement), as it is not acceptable that any democratic state has constitutionally justified exclusion of any ethnic group within the state. It became clear in recent years that the international community will not initiate change in Bosnia and Herzegovina, yet it still does encourage it, which is visible thought the Reform Agenda which Bosnia is currently implementing. The international community, including the European Union, wants to see the initiative and commitment of Bosnian politicians to the change and unity on the path towards the more democratic and European Bosnia and Herzegovina.
Consequently, it is evident that Bosnia and Herzegovina is a unique labyrinth, yet many issues can be overcome and solved if there is a consensus on the abolishment of the nationalistic rhetoric that is indisputable cause of many issues in the adoption and implementation of any law. It is the duty of all, both citizens and politicians, to find a way out from the existing situation and finally reject the idea that we are mutually contradictory. Bosnia and Herzegovina may be a labyrinth due to its political structure, but indeed its citizens represent its beauty; we may disagree on certain issues but we are all interconnected and our will and interconnection need to be utilised in order to return Bosnia on the right path towards stability and prosperity. Only by union and equality of all citizens of Bosnia and Herzegovina, we may succeed and achieve any long-term goal.
By Enna Zone Đonlić. Enna is currently studying Social and Political Science with a minor in Psychology at the International University of Sarajevo (IUS). She enrolled at IUS in 2013 after being awarded a scholarship due to her outstanding academic performance. Next to her studies she works as a Student Demonstrator at the Department of Social and Political Science and has founded the Association of Political Science Students. She has also participated in several MUNs and has been one out of seven members of the British Embassy to Sarajevo Youth Inspirational Group.
- Minority groups in Bosnia and Herzegovina: Albanians, Montenegrins, Czechs, Italians, Jews, Hungarians, Macedonians, Germans, Polish, Roma, Romanian, Russians, Rusyns, Slovaks, Slovenians, Turks and Ukrainians
- Zakon o zaštiti prava pripadnika nacionalnih manjina Bosne i Hercegovine, Available at: http://bhric.ba/dokumenti/BHS%202%20Zakon%20o%20manjinama.pdf, retrieved on December 1, 2016
- Zakon o zaštiti pripadnika nacionalih manjina u Federaciji Bosne i Hercegovine, Available at:
http://www.sogfbih.ba/uploaded/pravni_okvir/Relevantni%20zakoni%20za%20JLS/Zakon%20o%20za%C5%A1titi%20prava%20pripadnika%20nacionalnih.pdf, retrieved on December 1, 2016 Zakon o zaštiti parava pripadnika nacionalih manjina Republike Srpske, Available at:
http://www.djeca.rs.ba/uploaded/Zakon_o_zastiti_prava_nacionalnih_manjina1.pdf, retrieved on December 1, 2016
- Ko je Dervo Sjedić? (Who is Dervo Sjedić?), interview for the web portal Slobodna Bosna, available at:
http://www.slobodna-bosna.ba/vijest/1629/ko_je_dervo_sejdic.html, retrieved on December 2, 2016
- Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, ARTICLE 3 Right to free elections 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. Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf, Retrieved on December 2, 2016
- Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ARTICLE 1 General prohibition of discrimination: 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.Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf, Retrieved on December 2, 2016
- Lucy Claridge, Discrimination and political participation in Bosnia and Herzegovina: Sejdic and Finci v. Bosnia and Herzegovina, Minority Rights Group International, January 2010http://minorityrights.org/wp-content/uploads/old-site-downloads/download-787-Briefing-Paper-Discrimination-and-political-participation-in-Bosnia-and-Herzegovina.pdf