Much Ado about Nothing? Ten Years on from the Sejdić and Finci Case

Lidia Bonifati

University of Bologna

On 22 December 2009, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered a judgment that made history, or at least it was supposed to. The case Sejdić and Finci v. Bosnia and Herzegovina raised lots of expectations before (and after) the ECtHR’s decision and attracted considerable attention from legal scholars in discrimination and constitutional law. Now, ten years on, we can reflect on the legal and practical legacy of the decision.

Background

Sejdić and Finci cannot be understood without a basic knowledge of the constitutional architecture of Bosnia-Herzegovina. The current Bosnian constitution is the Annex 4 the Dayton Peace Agreement, it was originally written in English, and it was not adopted through a constituent process that involved the citizens of Bosnia. Moreover, the communities previously in conflict (from 1992 to 1995) were not directly included in the negotiations that led to Dayton, further undermining the democratic legitimacy of the newly drafted constitution.

While preserving the unitary character of the state, the constitution provided a complex multi-level structure based on power-sharing mechanisms, and it identified three “constituent peoples” entitled to share power in each level of governance. The constituent peoples within this consociation are the three former factions in the Bosnian war: the Bosniaks (predominantly Muslims), the Bosnian-Serbs (mostly Orthodox) and the Bosnian-Croats (mainly Catholics). The other national minorities fall within the residual category of the “others”, as defined by the Preamble.

Summary of the case

The case involved Dervo Sejdić and Jakob Finci, respectively of Jewish and Roma origin, thus not belonging to any constituent peoples. They had both taken an active part in the political life of Bosnia, including holding public positions, and they intended to stand for election to the House of Peoples (the second Chamber of the Parliamentary Assembly) and to the Presidency of Bosnia-Herzegovina (the collective Head of State). Since the Election Act 2001 provided that the candidates had to declare their affiliation to one of the constituent peoples in order to be eligible, the Central Electoral Commission considered both Sejdić and Finci to be ineligible to stand for the election to the House of Peoples and to the Presidency.

Sejdić and Finci claimed that they were being discriminated against on the ground of their ethnic origin, and they eventually brought their complaint before the Court of Strasbourg. The ECtHR held that the discrimination on ethnic grounds was “a form of racial discrimination”. Therefore, differential treatment was practically impossible to justify, since it did not pursue a “legitimate aim”, and there was not a “reasonable relationship of proportionality”. On this basis, the Court concluded that the ineligibility of the applicants to stand for the elections to the House of Peoples lacked an objective and reasonable justification, and therefore it was in breach of Article 14 of the European Convention on Human Rights (“ECHR”) (prohibition of discrimination), taken in conjunction with Article 3 of Protocol No. 1 (right to free elections). Regarding the Presidency, the Court held that their ineligibility constituted a violation of Article 1 of Protocol No. 12 (general prohibition of discrimination).

An aspect that exemplifies the distance between the judgment of the Court and the defendant (the Bosnian government) concerned the margin of appreciation (the “margin of appreciation” describes the extent to which the Court will defer to a member state when it acts in the area of a right protected under the ECHR). The Court held that the state had a very narrow margin of appreciation because of the ethnic character of the discrimination. The Bosnian government had argued that it should be afforded a wide margin of appreciation, since the constitutional structure was established on the ashes of a violent conflict. The government’s position was that the time was not ripe for a radical change in the political system, towards a simple reflection of majority rule. However, the Court did not agree, since its view was that some elements of the Bosnian system might be changed without making the whole structure collapse.

Consociations and human rights

Fascinating books and articles have critically assessed this judgment and the relationship between the Court of Strasbourg and cases concerning consociations, and it is still useful to underline a few elements that may be of interest.

The first concerns the relationship between power-sharing and human rights. Many scholars have analyzed consociations in the light of human rights theory and have highlighted some basic contradictions. For example, one of the pillars of power-sharing democracies is to “treat differently” some groups in respect of others (mostly relying on grounds such as race, ethnicity, language, religion). This seems in contradiction with the principle of non-discrimination that prohibits any differential treatment (relying on the same grounds). Moreover, consociations are based on the concept of group identity, and thus of collective rights, while human rights theory revolves around individuals, and therefore individual rights.

It is also interesting to consider the role played by national and supranational courts in cases involving consociations. The hypotheses made by Issacharoff and Pildes are that state courts have been restrained in finding consociational arrangements incompatible with human rights, and that in most cases domestic courts prudently upheld these arrangements or even “extended the logic of power sharing beyond its original scope”. The ECtHR initially conformed to these hypotheses as well (as occurred in Belgian Linguistics (No 2) in 1968 and Mathieu-Mohin and Clerfayt v. Belgium in 1987). However, Sejdić and Finci changed the course.

A convincing explanation of this shift is provided by McCrudden and O’Leary, who identified four main developments that occurred between the two Belgian cases and the more recent Bosnian case: a more robust approach to discrimination and minorities by the Council of Europe and the ECtHR; a changing approach in interpreting rights to political participation by the ECtHR; the increasing liberal criticism of consociations adopted by international human rights organizations, such as the Venice Commission; and a specific understanding of the conflict in Bosnia and of its commitment to the Council of Europe and the European Union. Moreover, as observed by Céline Tran, the Court of Strasbourg in Sejdić and Finci strongly relied on international human rights bodies in the process of fact-collection, and in reaching its judgment it was particularly affected by their liberal approach on human rights and the right to political participation.

The legacy of Sejdić and Finci

In many respects, the Sejdić and Finci judgment was perceived as groundbreaking, especially by the international community. For the first time ever, the constitution of a consociational democracy was found to be in breach of a human rights charter (namely, the ECHR), marking a significant shift in the jurisprudence of the ECtHR. But how effective were these findings in producing any development in Bosnia? A relevant indication is that, since 2009, three other discrimination cases have arrived before the Court of Strasbourg from Bosnia (Zornic in 2014, Pilav in 2016, Baralija in 2019 – and another complaint is still pending). In each decision, the Court referred to Sejdić and Finci, thus the case seems to have constituted a significant precedent. However, from a strictly political perspective, in Bosnia the impasse regarding the institutional reforms to implement Sejdić and Finci is still far from being resolved.

In conclusion, these elements make us wonder if it is possible to consider the decision in Sejdić and Finci as extraordinary as it seemed ten years ago. After a closer look, it is easy to agree with McCrudden and O’Leary, who underlined that even if the ECtHR departed from its precedent in Sejdić and Finci, it failed to identify the actors, the processes and the timing to implement changes in the Bosnian constitutional systems required by the decision. As a result, these issues were left dangerously ambiguous and remain unresolved.

Lidia Bonifati is a doctoral student in Legal Studies at the University of Bologna.

Suggested citation: Lidia Bonifati, “Much Ado about Nothing? Ten Years on from the Sejdić-Finci Case” IACL-IADC Blog (19 December 2019) https://blog-iacl-aidc.org/2019-posts/2019/12/19/much-ado-about-nothing-ten-years-on-from-the-sejdi-and-finci-case