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European Court of Human Rights (Grand Chamber): Sejdić & Finci v. Bosnia and Herzegovina

Published online by Cambridge University Press:  27 February 2017

Marko Milanović
Marko Milanović*
Affiliation:
University of Cambridge
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Abstract

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Type
International Legal Materials
Information
International Legal Materials , Volume 49 , Issue 2 , April 2010 , pp. 281 - 320
Copyright
Copyright © American Society of International Law 2010

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References

Endnotes

* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited March 29, 2010) http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860268&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

1 General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosn. & Herz.–Croat.–Yugo., 35 I.L.M. 89 (1996); Annex 4 thereof sets out the Constitution of Bosnia and Herzegovina, Articles IV and V of which define the eligibility for the House of Peoples and the Presidency.

2 The Court had to do so because the Presidency could not be defined as a “legislature” within the meaning of Article 3 of Protocol No. 1, and thus fell outside the scope of that provision. While the Article 14 prohibition of discrimination is accessory in character, the one in Protocol No. 12 extends to all rights recognized by law. It is precisely the breadth of this prohibition that has lead to the reluctance by many states to ratify Protocol No. 12.

3 See Constitution of Bosnia and Herzegovina art. X, annexed to the General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 1.

4 See, e.g., Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), 63 Am. J. Int’l L. 875 (1969).

5 A, B & C v. Ireland, App. No. 25579/05, Eur. Ct. H.R., available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835487&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.

6 See Anne Peters, The Swiss Referendum on the Prohibition of Minarets, EJIL: Talk!, Dec. 2, 2009, available at http://www.ejiltalk.org/the-swiss-referendum-on-the-prohibition-of-minarets/.

1 Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” (Bošnjaci) should not be confused with the term “Bosnians” (Bosanci) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

2 Members of the House of Peoples of the Federation of Bosnia and Herzegovina are appointed by the Cantonal parliaments (the Federation of Bosnia and Herzegovina consists of ten Cantons). Members of the Cantonal parliaments are directly elected.

3 Members of the National Assembly of the Republika Srpska are directly elected.

4 Ms Nystuen participated in the Dayton negotiations and the preceding constitutional discussions as a legal adviser to the European Union Co-Chairman of the International Conference on the Former Yugoslavia, Mr Bildt, who was heading the European Union delegation within the Contact Group. Thereafter, until 1997, she worked as a legal adviser to Mr Bildt in his capacity as High Representative for Bosnia and Herzegovina.

5 Mr O’Brien participated in the Dayton negotiations as a Contact Group lawyer, as well as in most major negotiations concerning the former Yugoslavia from 1994 to 2001.

6 Since all human beings belong to the same species, ECRI rejects theories based on the existence of different “races”. However, in this Recommendation ECRI uses this term in order to ensure that those persons who are generally and erroneously perceived as belonging to “another race” are not excluded from the protection provided for by the legislation.

7 See the powers of the State Presidency in the Constitution, Article V 3.

8 In this judgment, the standpoint that it applies to both direct and indirect elections has been explained only by the travaux préparatoires for Protocol No. 1; see paragraph 40 of the judgment.

9 See Article IV of the BiH Constitution.

10 This is about the distinction between the notions of “election” and “selection”: linguistically, while “election” implies an unlimited choice, “selection” implies a preferable/limited one.

11 There is only one exception, which stipulates that members of the cantonal houses of peoples are to be appointed from among the members of cantonal parliaments.

12 As noted above, talks began in 2006 on constitutional reform (the “April Package”), but these were unsuccessful (the “April Package”). Talks have now been reopened (the “Butmir Package”), but it appears that the politicians are sticking to their previous positions.

13 See paragraph 41 of the judgment.

14 Article IV 4 of the BiH Constitution – Powers The Parliamentary Assembly shall have responsibility for:

  • Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.

  • Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina.

  • Approving a budget for the institutions of Bosnia and Herzegovina.

  • Deciding whether to consent to the ratification of treaties.

  • Such other matters as are necessary to carry out its duties or as are assigned to it bymutual agreement of the Entities.

15 See the BiH Constitution, Article IV 3 c.

16 Ibid., Article IV 3 e.

17 The BiH Constitution provides (Article IV 2) that “the House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska” and “Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly”.

18 See http://www.amnesty.org/en/region/bosnia-herzegovina/report-2009.

19 See http://www.mhrr.gov.ba/izbjeglice/?id=6.

20 See Council of Europe Monitoring Report, 2008, SG/Inf(2008)2.

21 See Concurring opinion of Judge Feldman to the decision of the Constitutional Court of BiH AP-678/06-2006, http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid=67930.

22 See Ž danoka v. Latvia [GC], no. 58278/00, § 131, ECHR 2006-IV.

23 Ibid, § 134.

24 See Inze v. Austria, 28 October 1987, § 44, Series A no. 126.

25 See Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, Series A no. 113 and Yumak and Sadak v. Turkey [GC], no. 10226/03, 8 July 2008.

26 See Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87.

27 See Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 61, ECHR 2005-IX.

28 See paragraph 64 of the judgment.

29 Clerfayt et al. v. Belgium, no. 27120/95, Commission decision of 8 September 1997, (DR) 90, p. 35.

30 Holland v. Ireland, no. 24827/94, Commission decision of 14 April 1998, (DR) 93, p. 15.

31 H. v. Netherlands, no. 9914/82, Commission decision of 4 July 1983, (DR) 33, p.242.

32 Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, (DR) 90, p. 5.

33 Luksch v. Italy, no. 27614/95, Commission decision of 21 May 1997, (DR) 89, p. 76.

34 M. v. the United Kingdom, no. 19316/83, Commission decision of 7 March 1984, (DR) 37, p. 129.

35 Ganscher v. Belgium, no. 28858/95, Commission decision of 21 November 1966, (DR) 87, p. 130.

36 W, X, Y and Z v. Belgium, nos. 6745 and 6746/74, Yearbook XVIII (1957), p. 236.

37 Ibid.

38 Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006-IV.

39 Fryske Nasjonale Partij et al v. The Netherlands, no. 11100/84, Commission decision of 12 December 1985, (DR) 45, p. 240.

40 Gitonas and Others v. Greece, 1 July 1997, § 40, Reports of Judgments and Decisions 1997-IV.

41 Ahmed and Others v. the United Kingdom, 2 September 1998, § 75, Reports 1998-VIA.

42 Asensio Serqueda v. Spain, no. 23151/94, (DR) 77, p. 122.

43 McGuinness v. the United Kingdom (dec.), no. 39511/98, ECHR 1999-V.