BOSNIA: UNCLEAR IF ECHR DECISION WILL BRING QUICK

UNCLAS SECTION 01 OF 03 SARAJEVO 000021 SENSITIVE SIPDIS STATE FOR EUR DAS JONES, EUR/SCE NSC FOR HOVENIER E.O. 12958: N/A TAGS: PGOV PREL PINR KJUS KDEM EUN BK SUBJECT: BOSNIA: UNCLEAR IF ECHR DECISION WILL BRING QUICK ACTION ON CONSTITUTIONAL REFORM SARAJEVO 00000021 001.2 OF 003 Summary -------------- ¶1. (SBU) On December 22, 2009, the European Court of Human Rights (ECHR) ruled in favor of two complainants from the Jewish and Roma communities that certain provisions of the BiH constitution were unjustifiably discriminatory and thus, violated BiH's obligations under the ECHR and related protocols. Specifically, BiH must change provisions that prevent BiH citizens not of declared Bosniak, Croat or Serb origin from running for elected positions in the Tri-Presidency and the upper House of Parliament. Political parties generally agree on the need to amend the constitution to rectify this problem, and there are EU-related issues at stake, but due to the politically-sensitive nature of constitutional reform in BiH, it is unclear if the ECHR decision will bring quick action. End summary. The Ruling -------------- ¶2. (U) On December 22, 2009, the European Court of Human Rights upheld complaints filed in 2006 by Roma leader Dervo Sejdic and Jewish Community leader Jakob Finci that the BiH Constitution discriminates against BiH Citizens who are not self-declared members of the three constituent peoples (Bosniaks, Croats, and Serbs) as it prevents them from competing as candidates for the BiH Tri-Presidency and the upper house of Parliament. The ECHR ruled that the BiH Constitution violates the rights of non-constituent peoples, such as the applicants who are members of the Roma and Jewish communities, to stand for key elected posts by barring them from office on the basis of their ethnic identity. The ECHR acknowledged that such provisions in the BiH Constitution, put into place just after the end of the 1992-1995 hostilities, could be explained, without necessarily being justified, by the need to restore peace. The opinion holds, however, it is not justified now. In its opinion, the Court also noted that the HighRep did not have authority to impose constitutional changes. ¶3. (SBU) The Court, in making its decision, referred to BiH's obligations to not discriminate under other applicable international human rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. The Court also noted BiH's obligations to rectify the discriminatory Constitutional provisions connected with its becoming a member of the Council of Europe and in connection with the 2008 Stabilization and Association Agreement. The Court denied the applicants claims for damages, but did award costs and fees in the amount of EUR 1,000 for Sejdic and EUR 20,000 for Finci. However, the Court's ability to enforce the provision on constitutional change is more complex. Background -------------- ¶4. (U) The complainants, Dervo Sejdic and Jakob Finci, are citizens of Bosnia and Herzegovina. The former is of Roma origin and the latter is a Jew. They are both prominent public figures; Finci is currently the BiH Ambassador to Switzerland. The Bosnian Constitution, in its preamble, makes a distinction between two categories of citizens: the so-called "constituent peoples" (Bosniaks, Croats and Serbs) and "others" (Jews, Roma, persons from mixed marriages, and other national minorities together with those who do not declare affiliation with any ethnic group). The House of Peoples of the Parliamentary Assembly (the second chamber) and the Presidency are composed only of persons belonging to the three constituent peoples. Finci inquired with the Central Election Commission about his intentions to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly. On January 3, 2007 he received a written confirmation from the Central Election Commission that he was ineligible to run in such elections because of his Jewish ethnicity. ¶5. (U) The applicants complained that they are prevented by the Constitution of Bosnia and Herzegovina, and the corresponding provisions of the Election Act of 2001, from SARAJEVO 00000021 002.2 OF 003 being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of ethnic origin. They invoked Articles 3 (prohibition of inhuman and degrading treatment),13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 (right to free elections) and Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention. The applications were lodged with the ECHR July 3 and August 18, 2006 respectively. Reactions -------------- ¶6. (U) Although reactions from key public figures and political parties varied in their level of enthusiasm for the decision, as of yet, no one has disputed the need for BiH to amend its constitution to address the provisions deemed unjustifiably discriminatory by the ECHR. Finci expressed his contentment with the Court's decision and said he expected its implementation now. He stressed that there is enough time for conducting changes, so that the upcoming elections in 2010 can be held in accordance with new regulations. Finci also said it was good that all politicians agreed that the BiH Constitution should be harmonized with European Convention on Human Rights. High Representative Valentin Inzko welcomed the verdict, which confirms that BiH is discriminating against ethnic minorities by preventing them from running for senior positions. Inzko pointed out that "this is a great victory for all people" and all especially those who come from mixed marriages, (according to Inzko -- one quarter of BiH's population). ¶7. (U) The Party for BiH (SBiH),led by Haris Silajdzic, issued a statement welcoming the decision of the ECHR, underlining that the verdict confirmed the discriminatory nature of ethnic and ethno-territorial solutions provided by the Dayton agreement. SBiH indicated its hope that local and international stakeholders will support changes to the Constitution of BiH that will eliminate the discrimination related to election of members of BiH Presidency and delegates for the BiH House of Peoples. Chair of BiH House of Representatives' Constitutional-Legal Affairs Commission Sefik Dzaferovic (Party for Democratic Action-SDA) indicated that the ECHR's decision was expected, "because the BiH Constitution includes discriminatory provisions." He added that the "BiH Constitution has to be changed because it should be harmonized with the European Convention on Human Rights and Freedoms, which is a part of the Constitution and which has supremacy over BiH Constitution." ¶8. (U) In his comments to the press, Chairman of the BiH Council of Ministers Nikola Spiric (Alliance of Independent Social Democrats-SNSD) stated that the majority of political parties agree on the necessity of changing the constitutional provisions relating to elections for the Presidency and House of Peoples. However, he added that the constitutional reform process has been problematic because certain parties are unwilling to back away from their insistence on many other broad changes to the constitution. The Mostar-based newspaper Vecernji List ran an article emphasizing that there is no debate about the necessity of allowing all citizens of BiH to run for offices in the state authorities including the BiH Presidency and BiH House of Peoples. However, it warned that the potential constitutional changes proposed by political parties from Sarajevo could deprive Croats of representatives in those institutions. Enforcement -------------- ¶9. (SBU) The COE's Committee of Ministers is responsible for monitoring the execution of this and other judgments. The Committee of Ministers consists of all the Member States, and consequently, the Bosnian ambassador in Strasbourg sits on this Committee. When the Court finds a state in violation of the Convention, the Court transmits the file to the COE Committee of Ministers, which then, in turn, confers with Bosnia on how to execute the judgment. The Committee of Ministers will likely put the judgment on its agenda, and then the Bosnian ambassador will need to respond as to how the decision could be implemented. The Committee will likely SARAJEVO 00000021 003.2 OF 003 adopt an interim resolution that will indicate how Bosnia is addressing the violation. We understand that violations of the ECHR that require legislative and constitutional changes have in other cases taken years to correct. Implications of the Decision -------------- ¶10. (SBU) Following the ECHR decision BiH is obligated to amend its constitution to address the discriminatory provisions. However, given the overall lack of consensus on the politically sensitive issue of constitutional reform, it is unclear how soon BiH will be able to honor the ECHR decision. The U.S./EU-initiated constitutional reform discussion specifically addressed the need to bring the BiH constitution in line with the ECHR; however, to date, the parties made little progress toward agreeing on a reform package. It appears quite possible that the ECHR-required changes may take some time, such that the discriminatory provisions may well not be fixed in time for the upcoming 2010 general elections. ¶11. (SBU) During U.S./EC-initiated constitutional reform discussions in Sarajevo in November and December, representatives of the EU suggested to BiH technical experts that BiH's failure to bring its constitution in line with ECHR requirements could lead to a suspension of the Stabilization and Association Agreement (SAA). The SAA is not in force yet, pending its ratification by 10 more EU members and the Council's adoption of a unanimous decision to bring it into force. EU contacts tell us that failure of BiH to comply with the ECHR decision could lead the Council to make a political decision not to have the SAA enter into force pending resolution of the ECHR violations. Comment -------------- ¶12. (SBU) A Council decision preventing the SAA from coming into force could, in theory, be made as early as the middle of this year. However, in view of the complexity of constitutional reform in Bosnia, it would make sense for the EU to approach that issue cautiously. This ECHR ruling may prompt calls from some RS-based parties to move ahead quickly with a very limited constitutional reform -- which would address the ECHR violations and little else -- a scenario we need to guard against. De minimus changes would fail to address one of the key goals of the recent U.S./EU-initiated reform package -- increasing state functionality in order to help BiH become a more suitable candidate for EU and NATO membership. MOORE