FOURTH SECTION
Application no. 414/11
KONGRESNA NARODNA STRANKA and others
against Bosnia and Herzegovina
lodged on 30 December 2010
STATEMENT OF FACTS
The applicants are the National Party for the Protection of the Human Rights of War Veterans and Citizens, and of Justice and Morals in Bosnia and Herzegovina (Kongresna narodna stranka zaštite ljudskih prava boraca i građana, pravde i morala Bosne i Hercegovine; “the applicant party“) as well as its 45 members (“the applicants“). A list of the applicants is set out in the appendix. The applicants are represented before the Court by the president of the applicant party, Mr. E. Imširović.
A. The circumstances of the case
The facts of the case, as submitted by the applicant party and the applicants, may be summarised as follows.
In 2006 the applicant party participated in the elections for the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina.
Since its members do not declare affiliation with any of the “constituent peoples” (namely, Bosniacs, Croats and Serbs), they are ineligible to stand for election through a party list to the second chamber of the Parliamentary Assembly of Bosnia and Herzegovina (the House of Peoples) or to the collective Head of State (the Presidency). Some of them belong to Roma and Albanian ethnic minority while others do not declare affiliation with any particular group.
B. Relevant international and domestic law and practice
The relevant law and practice were set out in Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009. In particular, the Constitution makes a distinction between “constituent peoples” (persons who declare affiliation with Bosniacs, Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood, or other reasons). In the former Yugoslavia, a person’s ethnic affiliation was decided solely by that person, through a system of self-classification. Thus, no objective criteria, such as knowledge of a certain language or belonging to a specific religion were required. Moreover, there was no requirement of acceptance by other members of the ethnic group in question. Since the Constitution contains no provisions regarding the determination of one’s ethnicity it appears that it was assumed that the traditional self-classification would suffice. In accordance with the Constitution, only persons declaring affiliation with a “constituent people” are entitled to run for the House of Peoples and the Presidency of Bosnia and Herzegovina.
Article 1.9 § 1 of the Elections Act 2001[1] provides that a political mandate belongs to the elected candidate and not to the political party from which list he/she was elected. Moreover, pursuant to Article 1.9 § 2 of this Act, if an MP elected through a party list leaves a party during his/her time in the office, he/she becomes an independent MP. Article 9.1 of the Election Act 2001 provides that, if a political mandate of an MP in the House of Representatives elected through a party list terminated, then the corresponding seat was to be occupied by the next candidate from the same constituency. If there were no other candidates from the same constituency, the seat was to be occupied by the next candidate from the same party list.
COMPLAINT
The applicant party and the applicants take issue with their ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina. They rely on Article 3 of Protocol No. 1 taken alone and in conjunction with Article 14.
QUESTIONS TO THE PARTIES
1. May the applicant party claim to be a victim of a violation of Article 14 taken in conjunction with Article 3 of Protocol No. 1 to the Convention within the meaning of Article 34 of the Convention (see Russian Conservative Party of Entrepreneurs and Others v. Russia, nos. 55066/00 and 55638/00, §§ 53-67, 11 January 2007, and Georgian Labour Party v. Georgia, no. 9103/04, §§ 72-73, ECHR 2008)?
2. Have the applicants suffered discrimination, contrary to Article 14 taken in conjunction with Article 3 of Protocol No. 1 and/or Article 1 of Protocol No. 12, arising from the very existence of the constitutional arrangements according to which only those belonging to one of the three “constituent peoples” are eligible to stand for election to the Presidency of Bosnia and Herzegovina and the House of Peoples of Bosnia and Herzegovina (Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009)?
Appendix
No.
Applicant’s name
Birth date, place of residence and nationality
Vahida BEŠLAGIĆ
20/07/1959
Ključ
BiH
Remzo BEZDROB
20/01/1964
Goražde
BiH
Zehra ĆAMO
15/05/1961
Sarajevo
BiH
Ibrahim CRNOGORAC
28/06/1932
Tuzla
BiH
Abdulah DAUTOVIĆ
27/02/1942
Zvornik
BiH
Mehmed DURAKOVIĆ
04/03/1957
Bijeljina
BiH
Elmasa DŽEKIĆ
01/09/1966
Tuzla
BiH
Kanaid DŽEKIĆ
23/07/1957
Tuzla
BiH
Arif FAZLIĆ
01/03/1969
Mostar
BiH
Mejra GAVRANOVIĆ
23/05/1952
Mostar BiH
Jusuf GOLOŠ
03/04/1970
Mostar
BiH
Hakik HARBAŠ
23/08/1958
Bosanska Krupa
BiH
Ibrahim HASANOVIĆ
10/08/1963
Bosanska Krupa
BiH
Fejzudin HASANOVIĆ
Kalesija
BiH
Senad HASOVIĆ
20/07/1965
Goražde
BiH
Enver IMŠIROVIĆ
06/08/1952
Tuzla
BiH
Mair ISMAILI
25/03/1957
Tuzla
BiH
Ekrem JULARDŽIJA
25/04/1965
Travnik
BiH
Dževad KADRIĆ
20/08/1969
Goražde
BiH
Muris KALAJDŽISALIHOVIĆ
17/08/1959
Bugojono
BiH
Sanel KOPIĆ
03/03/1973
Kladanj
BiH
Avdo KRVAVAC
29/04/1968
Mostar
BiH
Ekrem KUKURUZ
04/04/1977
Gradačac
BiH
Ekrem LUBENOVIĆ
10/04/1958
Travnik
BiH
Dženan MAHMUTBEGOVIĆ
24/09/1974
Bugojno
BiH
Ševal MALČINOVIĆ
15/06/1961
Tuzla
BiH
Sead MEMIĆ
16/05/1954
Sarajevo
BiH
Senija MEMIĆ
19/02/1959
Sarajevo
BiH
Enver MIRVIĆ
27/09/1964
Goražde
BiH
Husein ODOBAŠIĆ
25/03/1956
Tuzla
BiH
Abdurahman ODOBAŠIĆ
11/09/1983
Tuzla
BiH
Mahmud OLOVČIĆ
14/06/1969
Sarajevo
BiH
Nurija OMERBAŠIĆ
12/08/1946
Sarajevo
BiH
Ismet PALOŠ
20/03/1959
Bužim
BiH
Redin REDŽIĆ
30/04/1970
Mostar
BiH
Mirsad REDŽIĆ
02/11/1960
Zenica
BiH
Dzemila ŠABANOVIĆ
Tuzla
BiH
Zlatija ŠABANOVIĆ
Mostar
BiH
Hatidža SANTIR
Živinice
BiH
Midhat ŠEHIĆ
01/06/1966
Tuzla
BiH
Ramiz SEJFIĆ
09/02/1964
Bugojno
BiH
Hanifa SERHATLIĆ
09/12/1946
Živinice
BiH
Esad SINANOVIĆ
29/11/1954
Tuzla
BiH
Selver SOFTIĆ
24/07/1960
Živinice
BiH
Jusuf ŽIGIĆ
18/08/1961
Tuzla
BiH
[1] Izborni Zakon Bosne i Hercegovine, Official Gazette of Bosnia and Herzegovina nos. 23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05, 65/05, 77/05, 11/06, 24/06 and 32/07.
Full & Egal Universal Law Academy