Politicians still have not ended second-class status for Jews, Roma, and other minorities a decade after the European Court of Human Rights found that the Bosnian constitution violates their rights, Human Rights Watch said today.
Following the court’s decision, it ruled in three other cases that the Bosnian constitution violated citizens’ rights to run for public office, but none of the decisions have been carried out.
An estimated 400,000 Bosnians, 12 percent of the population, cannot run for president or parliament because of their religion, ethnicity, or where they live. The constitution also bans people who do not wish to declare an ethnic identity from running for the highest office. One person who brought a case before the European court is a Bosniak (Muslim) doctor, a survivor of the genocide in Srebrenica, which is in the part of the country where only Bosnian Serbs can run for the member of the tripartite presidency, which has one member from each of the main ethnic groups.
“It’s outrageous that a European country has had a constitution that has been discriminating against its own citizens for 24 years,” said Clive Baldwin, senior legal adviser at Human Rights Watch. “Bosnian authorities should stop prioritizing the main ethnic groups’ interests over equal rights for all citizens and amend the discriminatory constitution.”
Baldwin was one of the lawyers who represented one of the applicants in the first European court case.
The constitution – drafted by European and American experts as part of the Dayton Peace Agreement that ended the war in Bosnia in 1995 – privileges the three main ethnic groups – Bosniaks, Croats, and Serbs – labelling them “constituent” people. The constitution refers to 17 national minorities, including Jews and Roma, as “others” and denies them the right to run for the presidency and the House of Peoples, the upper house of parliament. Bosnia is still believed to be the only country in the world with a constitution that labels some of its citizens as “others.”
On December 22, 2009, the European Court ruled that the Bosnian constitution directly discriminates against minorities by not allowing their equal participation in democratic elections. The case was brought by a Bosnian Roma, Dervo Sejdić, and a Bosnian Jew, Jakob Finci.
But the constitution has not been amended since this landmark ruling, and three general elections have been held under the discriminatory constitution and election law.
In advance of the 10-year anniversary of the ruling, Human Rights Watch spoke with Sejdić and Finci, as well as lawyers and applicants involved in subsequent cases.
Sejdić sees a direct connection between the discriminatory constitution and continued marginalization and discrimination against Bosnian Roma, the country’s largest national minority. “Changing the constitution would lead to greater political participation of the Roma population in [Bosnia and Herzegovina], and I believe that all other aspects would significantly improve,” he said. “If Roma representatives are present and participate in discussions and decision-making then for sure Roma-relevant topics will be discussed more among circles where decision-making is taking place.”
Sejdić cited a case in which funds for internally displaced people were to be divided three ways until a Roma observer in the meeting objected that decision. Finci also noted that because of the lack of political will, there has been no action for restitution of property taken from Jews during the Holocaust or Communist periods.
Attempts to reform the constitution and laws have failed, and the process has stalled since 2016.
The international community, including the United States, the United Kingdom, Germany, and France, which were engaged in creating the Dayton Peace Agreement and the discriminatory constitution, have a responsibility to continue looking for solutions and to press Bosnian officials to end discrimination, Human Rights Watch said.
The European Union has a particular influence and responsibility to press for reform, notwithstanding the stalled EU enlargement process that has kept Bosnia and Herzegovina from moving toward membership. EU institutions and member states should signal to the Bosnian government that closer EU ties and cooperation with EU states depend on an end to discrimination in the constitution.
In its latest Bosnia progress report, in May, the European Commission said that Bosnia should comply with the Sejdić -Finci ruling and ensure equality for citizens. The commission also said that Bosnia should amend the discriminatory Law on the Human Rights Ombudsman, which similarly discriminates based on ethnicity, nationality, and residence.