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)

 

National legislation:

 

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

 

Soft-law documents:

 

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/

 

Concluding observations on the combined twelfth and thirteenth periodic reports of Bosnia and Herzegovina, 10 settembre 2018: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD/C/BIH/CO/12-13&Lang=En

 

Opinion on the constitutional situation in Bosnia and Hercegovina and the powers of the high representative, 11 marzo 2005: https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)004-e

 

Joint opinion on amendments to the Election Law of Bosnia and Herzegovina by the Venice Commission and OSCE/ODIHR adopted by the Council for Democratic Elections at its 24^th Meeting (Venice, 15 March 2008) and by the Venice Commission at its 75^th Plenary Session (Venice, 13-14 June 2008): https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2008)012-e

 

Opinion on the Draft Amendments to the Constitution of Bosnia and Herzegovina (sent as a preliminary Opinion to the authorities of Bosnia and Herzegovina on 7 April 2006 and endorsed by the Commission at its 67th Plenary session, Venice, 10 june 2006): https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2006)019-e

 

Opinion on the Implementation of Decision U5/98 (“Constituent Peoples”) of the Constitutional Court of Bosnia and Herzegovina by the Amendments to the Constitution of the Republika Srpska, adopted by the Venice Commission at its 52nd Plenary Session (Venice, 18-19 October 2002): https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2002)024-e  

Opinion on the Draft Law on the Rights of Ethnic and National Communities and Minorities in Bosnia and Herzegovina, prepared by Mr Ibrahim Spahić, Delegate in the House of Peoples of Bosnia and Herzegovina, Adopted by the Venice Commission at its 47th Plenary Meeting (Venice, 6-7 July 2001): https://www.venice.coe.int/webforms/documents/?pdf=CDL-INF(2001)013-e

 

Essential bibliography:

 

J. Woelk, La transizione costituzionale della Bosnia ed Erzegovina. Dall’ordinamento imposto allo Stato multinazionale sostenibile?, CEDAM, Padova, 2008.

 

L. Montanari, La complessa soluzione istituzionale adottata in Bosnia ed Erzegovina: finalità ed effetti nel tempo, in A. Cosentino, A. Tarantino (a cura di), Luoghi strani. Dislocazioni e spostamenti dell’espressione e del significato nelle società illiberali nel Novecento, numero monografico di Romània Orientale, 30, 2017, pp. 153-172.

 

A. Lijphart, Democracy in Plural Societies. A Comparative Exploration, Yale University Press, New Haven, 1977.

 

S. Yee, The New Constitution of Bosnia and Herzegovina, in European Journal of International Law, 7, 1996, pp. 176-192.

 

A. Merdzanović, Democracy by Decree. Prospects and Limits of Imposed Consociational Democracy in Bosnia and Herzegovina, Ibidem-Verlag, Stuttgart, 2015.

 

P. Gaeta, The Dayton Agreement and International Law, in European Journal of International Law, 7, 1996, pp. 147-163.

 

D. Kapidžić, Democratic Transition and Electoral Design in Plural Societies: the Case of Bosnia and Herzegovina’s 1990 Elections, in Ethnopolitics, 3, 2015, pp. 311-327.

 

D. Kapidžić, Party System of Bosnia and Herzegovina, in S. Arnautović, N. Mujagić, A. Osmić, E. Huruz (a cura di), Political Pluralism and Internal Party Democracy, Centar za monitoring i istraživanje, Podgorica, 2015, pp. 35-56.

 

I. Ingravallo, Bosnia-Erzegovina, diritti di partecipazione politica e CEDU: nulla di nuovo sotto il cielo. Osservazioni sulla sentenza Pudarić della Corte europea dei diritti dell’uomo, in SIDIBlog, 18 gennaio 2021.