The right to vote in an ethnic democracy: the case of Bosnia and Herzegovina
Following the entry into force of the 1995 Constitution, the constitutional system of Bosnia and Herzegovina is characterised by the adoption of a model of consociative democracy, where the majority principle is mitigated by correctives deriving from power-sharing. In fact, the constituents wanted to rebuild the State on the basis of this model in order to ensure an equal institutional position for the three main ethnic groups involved in the bloody conflict in the 1990s.
In particular, the Constitution divides the population into two macro-categories: on the one hand, the "constituent peoples", i.e. the Bosniacs, Serbs and Croats, as the main ethnic groups present in the country, and the "Others", i.e. those who belong to other minorities or who simply do not want to recognise themselves in one of the three main ethnic groups. This means that in order to be eligible for certain institutional positions, the Constitution requires membership of one of the three 'constituent peoples', thus limiting the participation in political life of those who fall into the category of 'Others'. However, the issue of the right to vote in the Bosnian-Herzegovinian context proves to be even more complex. In fact, as emerges from the jurisprudence of the European Court of Human Rights, the category of "Others" takes on a triple declination. In the first place (Sejdić and Finci v. Bosnia and Herzegovina and Šlaku v. Bosnia and Herzegovina), "Others" are those Bosnian-Herzegovinian citizens, belonging to one of the minorities recognised by the State law, who do not intend to deny their cultural identity and therefore define themselves as affiliated to one of the "constituent peoples" just to have access to certain institutional positions. Or, the definition of "Others" takes the form of a citizen (case of Zornić v. Bosnia and Herzegovina) who does not want to indicate her ethnic affiliation just to be able to run for some state institutions, preferring to let a civic rather than an ethnic conception of citizenship prevail, simply defining herself as a citizen of Bosnia and Herzegovina. Finally, according to the Electoral Law of Bosnia and Herzegovina, even affiliation with one of the 'constituent peoples' does not always guarantee a full guarantee of the right to vote. This is because, in addition to requiring ethnic criteria for the electorate, residence requirements are also required (Pilav v. Bosnia and Herzegovina and Pudarić v. Bosnia and Herzegovina cases).
If these criteria do not coincide, not only is passive eligibility for certain institutional positions denied, but active eligibility for election to the Presidency of the State is also restricted on the basis of the entity of residence. In the Republika Srpska (one of the two federal entities) only the ethnic Serb candidate may be voted for, and in the Federation of Bosnia and Herzegovina, the other federal entity that makes up the State, only the ethnic Bosnian or Croatian candidates may be voted for.
The purpose of this focus is to examine how this limitation can be reconciled with the right to vote, guaranteed by Article 3 of Protocol No 1 to the ECHR, and with the general principle of non-discrimination, laid down in Articles 14 and 1 of Protocol No 12 to the ECHR. In doing so, the five most important judgments of the European Court of Human Rights concerning Bosnia and Herzegovina on this matter are proposed, from which it is possible to better understand the relationship between the principles of the ECHR and the Constitution of the country. In addition, two judgments of the Constitutional Court of Bosnia and Herzegovina, which illustrate its position with regard to the right to vote for "Others" in two different periods, show the interpretation of this Court on this matter. Then, some soft law documents are proposed, which provide a broad picture of the position of some international organisations on the constitutional solutions adopted in Bosnia and Herzegovina, especially with regard to access to the right to vote. Finally, a number of doctrinal texts are presented, which complete the focus and allow an in-depth examination of the constitutional system of Bosnia and Herzegovina and its peculiarities.
(Focus by Edin Skrebo)
Constitution of Bosnia and Herzegovina: https://www.wipo.int/edocs/lexdocs/laws/en/ba/ba020en.pdf
Electoral Law of Bosnia and Herzegovina: https://www.izbori.ba/Documents/documents/ZAKONI/BiH_Election_Law_last_consolidated_version_2018.pdf
Law on the protection of national minorities' members: https://advokat-prnjavorac.com/zakon_o_zastiti_prava_nacicionalnih_manjina_bih.html
Internal regulations of the Presidency of Bosnia and Herzegovina: http://www.predsjednistvobih.ba/nadl/default.aspx?id=53745&langTag=en-US
Internal regulations of the Constitutional Court of Bosnia and Herzegovina: https://www.ustavnisud.ba/uploads/documents/rules_1611259624.pdf
Internal regulations of the House of Peoples of Bosnia and Herzegovina: https://www.parlament.ba/data/dokumenti/pdf/vazniji-propisi/Nesluzbeni%20precisceni%20tekst%20-%20Poslovnik%20DN%20-%20B.pdf
European Commission, “Commission Opinion on Bosnia and Herzegovina’s Application for Membership of the European Union” (COM/2019/261), 29 maggio 2019: https://www.consilium.europa.eu/it/meetings/gac/2019/12/10/
Fifty-eighth report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina, 5 November 2020: http://www.ohr.int/cat/hrs-reports/
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