Eurasia Press & News
The latest political pledge to amend Bosnia’s electoral law and constitution in line with rulings by the European Court of Human Rights looks destined to fail. It’s time the institutions of state take the lead, with the help of NGOs, academics and the international community.
Without a doubt, the December 20 local election in Mostar, the first in 12 years, represents an important event in the recent political history of Bosnia and Herzegovina.
But the June 17 deal that made it possible, signed by Party of Democratic Action, SDA, leader Bakir Izetbegovic and Dragan Covic of the Croat Democratic Alliance, HDZ, contains a pledge that the two parties will reach agreement – within the next six months – on how to execute all outstanding judgements of the European Court of Human Rights, ECHR, affirming the equality of citizens in the country’s election process.
This would be no small feat given that some of them have been languishing for more than a decade without being implemented.
The best-known among them is the Sejdic-Finci case, brought by Dervo Sejdic and Jakob Finci, members of Bosnia’s Roma and Jewish communities who, under Bosnia’s postwar constitution, are barred from running for parliament or the presidency given that they do not belong to any of the country’s ‘constituent peoples’ – Croats, Bosniaks or Serbs.
There have been four attempts to implement the judgements of the Strasbourg court.
All of them were unsuccessful, and each was characterised by an unrealistic deadline of several weeks or a couple of months. The work of drafting amendments to the electoral law or constitution frequently failed to get off the ground.
And now the clock is ticking on the so-called Mostar Agreement. It already looks like a dead letter.
EHCR not the only court Bosnia is ignoring
As early as December 2010, ECHR judge Faris Vehabovic identified “five key issues” behind the previous failures in constitutional reform, and warned they were “likely to be the cause of future failures”: (1) the institutional set-up established by the constitution created as part of the Dayton peace deal that ended the 1992-95 Bosnian war, (2) the psychology and mentality of ethnic groups in an environment of political mistrust, (3) the fragmentation of the party system within an ethnic group, (4) the indifference and disunity of the international community, (5) disrespect for the constitutional order.
Ten years on, these reasons are still relevant and may explain the failure to reach agreement on the text of constitutional amendments.
The non-execution of the ECHR’s judgments is no surprise, given that public authorities in Bosnia do not enforce the decisions of the Bosnia Constitutional Court either.
It should come as no surprise then that the ECHR’s judgments have not been enforced, although the Bosnia Criminal Code criminalises such non-enforcement.
Some internal legal acts have been changed (e.g., parts of the Sarajevo Canton’s Constitution, Rules of the Constitutional Court of Bosnia), some were found to be non-discriminatory by the Constitutional Court of Bosnia, while others were deemed discriminatory but the Court did not remove them from the legal system.
As many as 17 pieces of legislation are still questionable regarding their compliance with the European Convention on Human Rights. A review of legal acts published in December 2010 identified 21 regulations that needed to be amended as a result of the required execution of the Sejdic and Finci judgment. Not only has the list of these regulations not been reduced, but it keeps growing.
Diplomatic pressure
In order to put the process of execution of the Sejdic-Finci judgment in motion and overcome the deadlock, the pressure of international and national non-governmental but also international governmental organisations is needed. But in the case of Bosnia, it is missing.
In the context of the Council of Europe’s, CoE, next steps, the Committee of Ministers should not be expected to initiate proceedings against Bosnia before the ECHR.
It is clear from the Committee’s previous practice that this is a last resort, used only once in a case concerning “fundamental rights” – the right to liberty and security of a person.
Finally, there are examples of cases (which precisely concern the right to free elections) in which general measures were enforced only 12 years after an ECHR judgment had become final.
Therefore, it appears that there are still no circumstances that could lead to the initiation of such proceedings against Bosnia. And what would Bosnia face in that case? What would be the sanction imposed by this international organisation? Suspension or exclusion from CoE membership? Would such a sanction be effective at all, considering the political trends in the country?
On the other hand, would it be effective if CoE bodies such as the Parliamentary Assembly and the Secretary General influenced the execution of judgments from the Sejdic-Finci group of cases?
Could or should the CoE member states also exert political influence, by insisting on execution of the judgements in diplomatic talks with Bosnia? Pressure from European political groups, whose membership comprises almost all national parliamentary parties, is something that could bear fruit.
The synergy of all these elements is probably a necessary precondition for the successful execution of the ECHR decisions, i.e., in the struggle for Bosnia to become an internationally responsible state by ending the violation of its international obligations.
Return the process to Bosnia’s national institutions
The four attempts by the Bosnian authorities to implement the judgement must be understood as a bureaucratised form of avoidance to undertake concrete steps.
The success of the Bosnian parliament in fulfilling its constitutional obligation has become dependent on the success of a non-institutional process – the negotiations of political party leaders.
The Bosnian parliament and its government have proven to be weak institutions over ten years and can hardly be expected to fulfil their constitutional task.
They have showed a lack of interest, irresponsibility and indifference towards their obligations.
Such a transfer of parliament’s powers to the hands of political party leaders has additionally weakened this institution.
Instead, the process of execution of the ECHR judgments should be returned to the institutions of the state of Bosnia, primarily to parliament, which has the power to amend the Bosnian Constitution in accordance with the prescribed procedure.
Parliamentarians should resist the usurpation of their powers in future by leaders of political parties. They will not be able to, however, without the support of the international community, which must not initiate or support such retrograde efforts, but also without the support of the wider Bosnian public.
Ultimately, the process of creating constitutional amendments should probably not be left exclusively to the parliamentary body, but to a special working group composed of parliamentarians, representatives of the NGO sector from both entities that make up Bosnia, and members of the academia in Bosnia and abroad.
