The Constitution of Bosnia and Herzegovina highly discriminates the ethnic minorities in Bosnia and Herzegovina which contradicts the basic idea of democracy. Ethnic groups in Bosnia that are not Bosniaks, Serbs or Croats cannot run for presidency or the upper chamber of the parliament, as defined in the Constitution. The ongoing discussions and processes about Bosnia entering the EU shed a new light on the Constitution of Bosnia and Herzegovina as it is not in alignment with the european democratic values.

The Constitution of Bosnia and Herzegovina    

The Constitution of Bosnia and Herzegovina (further as “the Constitution”) was written in line with the Dayton Agreements, that officially ended the war in the former Yugoslavia and paved the way for the origin of new states in the region, including Bosnia and Herzegovina. Both the Agreements and the Constitution were written and became effective in 1995. The war in Bosnia lasted from 1992 to 1995 and its consequences were devastating. A lot of lives were lost, the landscape was destroyed and society became polarized. Therefore in order to restore the whole country the Constitution focused mainly on uniting the three biggest ethnic groups (that stood on opposite sides during the war) - The Bosniaks, Serbs and Croats. The Constitution stated that only a member of one of these three ethnic groups can become the president of the country. 

The same rule also applies to the upper chamber of the Parliament, the House of Peoples. The Parliamentary Assembly of Bosnia and Herzegovina is composed of two bodies: The upper chamber called the House of Peoples and the lower chamber called the House of Representatives. The House of Peoples has fifteen members elected by the autonomous parliaments of the two entities of the country: The Republika Srpska and the Federation of Bosnia and Herzegovina. The latter electing five Croats and five Bosniaks with the Republika Srpska appointing five Serbs. Therefore, according to the Constitution, the upper chamber of the Parliament is designed to hold five Bosniaks, five Serbs and five Croats and no member of any other ethnic group can become a candidate. 

In addition to the situation in Bosnia and Herzegovina as a whole, in Republika Srpska - the autonomous entity of the state - only Serbs are allowed to stand as candidates for Parliament. Similarly, ministerial posts in Republika Srpska are reserved for Serbs.

On the other hand, in the second entity, the Federation of Bosnia and Herzegovina, candidacy of minority representatives to the autonomous parliament is allowed, and there are even quotas for minority representation. Therefore, people living in the Republika Srpska are way more discriminated than people living in the Federation of Bosnia and Herzegovina. 

Overall, this means that approximately 400 000 people (around 12% of the population) across the entire state are barred from candidacy for the presidency or certain legislative positions due to their religion, ethnicity, or place of residence.

The Case of Sejdic and Finci

This fundamental constitutional deficiency was challenged in 2009 by Dervo Sejdić (an ethnic Roma and Jakob Finci¨(an ethnic Jew). The two brought the case of the Constitution before the European Court of Human Rights (ECtHR), alleging a violation of the European Convention on Human Rights (ECHR or Convention). In particular, they implied Article  14 of the ECHR, which refers to the prohibition of discrimination on the grounds of sex, race, colour, language, religion, etc., and the Article 3 of Protocol No.1 to the ECHR. That guarantees the contracting states free elections by secret voting under conditions which safeguards the free expression of the people's opinion. 

The ECtHR ruled in favour of Sejdić and Finci, describing Bosnia and Herzegovina's constitutional provisions as discriminatory and in violation of the Convention. The ECtHR ordered Bosnia and Herzegovina to amend the Constitution and electoral laws to comply with human rights. Although The ECtHR verdict came into force more than 15 years ago, Bosnia and Herzegovina has not yet amended its Constitution and the discriminatory provisions are still in force. 

The Committee of Ministers of the Council of Europe (the body that oversees the implementation of ECtHR judgments) has repeatedly called on Bosnia and Herzegovina to implement the judgment. In 2019, it even considered so-called inter-state action or sanctions, but these have not yet taken place. It has repeatedly stated that non-compliance is ‘unacceptable’ and ‘contrary to the values of the Council of Europe’.

The Bosnian road to the European Union

Bosnia and Herzegovina has been trying to join the EU for a long time. In 2016, after meeting the requirements, it submitted an application for accession. However, in order to be granted candidate status, it had to address 14 priority elements identified by the European Commission in 2019. One of these is the implementation of the Sejdić-Finci ECtHR judgment. 

Despite not meeting all the requirements, Bosnia officially became a candidate country in 2022, and in 2024, the EU accession negotiations were opened.d. This decision was made primarily because of the beginning of the Russian invasion of Ukraine and was meant to signal that the EU counts Bosnia as part of its space, thus limiting Russian influence in the region. Furthermore, the granting of candidate status is only a symbolic gesture. In doing so, the EU has given an incentive to reform, while retaining control, as Bosnia must meet the 14 priority elements from 2019 to start accession negotiations. Reforming the Constitution (including Sejdić and Finci case requirements) is still one of these conditions, without which the negotiations will not move forward.

However, the change of the Constitution in BiH is still out of sight, primarily because the leaders of the country benefit from the current wording of the constitution. For example, in 2017 Milorad Dodik, the former Serb Member of the Presidency, openly stated that he doesn´t support the Sejdić-Finci reform and emphasized that it should not be implemented.

Meanwhile, ethnic minorities in BiH continue to suffer. The Bosnian Roma remain the poorest group in the country, as they are almost completely cut off from access to executive power. The fate of Bosnian Jews is similar. It is estimated that they were entitled to 10% of the property that was confiscated during the Nazi and Communist regimes in the country. Almost none of the confiscated property has been returned to them. Instead, in many cases, ownership was taken over by the municipalities.

Photograph:

Roma are one of the poorest groups in the Balkan countries. Prizren - Romas. Author: CharlesFred. 24 July 2008. Source: Flickr, CC BY-NC-SA 2.0