FOURTH SECTION

Application no. 41939/07 Ilijaz PILAV against Bosnia and Herzegovina lodged on 24 September 2007

STATEMENT OF FACTS

The applicant, Mr Ilijaz Pilav , is a citizen of Bosnia and Herzegovina, who was born in 1964 and lives in Srebrenica . He is represented before the Court by Mr D ž. Sabrihafizović , a lawyer practising in Sarajevo and by Mr D. Arnaut , who was granted leave to represent the applicant under Rule 36 § 4(a) of the Rules of Court.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant declares affiliation with Bosniacs [1] (one of the country ’ s “constituent peoples”). He actively participates in the social and political life of the country. The applicant is a member of the political party, the Party for BH ( Stranka za BiH ; “the SBH party ”) and a founding member of the Srebrenica Intellectuals Club ( Klub Intelektualaca Srebrenice ).

The applicant has held several elected and appointed political positions in the Republika Srpska . At the time of lodging his application to the Court, he was a member of the National Assembly of the Republika Srpska .

In 2006 the applicant decided to run for the Presidency of Bosnia and Herzegovina (“the Presidency”) on behalf of the SBH party for the elections scheduled for October 2006, and submitted his candidacy to the Central Electoral Commission of Bosnia and Herzegovina (“the CEC”).

On 24 July 2006 the CEC rejected his candidacy. It explained that the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering that he declared affiliation with Bosniacs . Pursuant to Article V of the Constitution and Article 8.1 § 2 of the Election Act 2001 the presidential candidate from that Entity must be a Serb.

On 1 August 2006 the CEC rejected the applicant ’ s request for the reconsideration of that decision. On 10 August 2006 the State Court rejected the applicant ’ s further appeal. It held that the applicant ’ s candidacy was in contravention of the Constitution and the Election Act 2001.

On 20 September 2006 the SBH party and the applicant lodged a constitutional appeal relying on Article 1 of Protocol No. 12 to the Convention. On 29 September 2006 the Constitutional Court of Bosnia and Herzegovina held that there has been no violation. The relevant part of the majority opinion reads as follows:

“22. There is no dispute that the provision of Article V of the Constitution of Bosnia and Herzegovina, as well as the provision of Article 8 of the Election Act 2001, have a restrictive character in that they restrict the rights of citizens , namely the candidacy of Bosniac s and Croats from the territory of the Republika Srpska and the Serbs from the territory of the Federation of Bosnia and Herzegovina to stand for election as members of the Presidency of Bosnia and Herzegovina. However, the purpose of those provisions is to strengthen the position of the constituent peoples in order to ensure that the Presidency is composed of the representatives from these three constituent peoples. Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed by the Constitution and Election Act 2001 , on the appellants ’ rights given the different treatment of the appellant ’ s from the candidacy of other candidates who are Serbs and are directly elected from the territory of the Republika Srpska , is justified at this moment , since there is a reasonable justification for such treatment. Therefore, given the current situation in Bosnia and Herzegovina and specific nature of its constitutional order as well as the current constitutional and statutory arrangements, the challenged decisions of the Court of Bosnia and Herzegovina and the Central Election Commission did not violate the appellants ’ rights u nder Article 1 of Protocol N o. 12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the above- mentioned decisions are not arbitrary and are based on law. It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants ’ rights are proportionate to the objectives of the general community in terms of preservation of the established peace, continuation of dialogue, and consequently the creation of conditions for amending the above- mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Act 2001 . ”

On 5 July 2010 the applicant again submitted his candidacy to the CEC. On 29 July 2010 it was rejected for the same reasons as before.

B. The Constitution of Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace ) entered into force on 14 December 1995 . The Constitution, in its Preamble, distinguishes be tween two categories of citizen : “constituent peoples” ( 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 ).

Only persons declaring affiliation with a “constituent people” are entitled to run for the House of Peoples (the second chamber of the State parliament) and the Presidency (the collective Head of State). The following are the relevant provisions of the Constitution:

Article V

“The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Repu blika Srpska ...

1. Election and Term.

a. Members of the Presidency shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency) in accordance with an election law adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly.

...”

As regards amendments to the Constitution, Article X provides as follows:

“1. Amendment procedure. This Constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives.

2. Human Rights and Fundamental Freedoms. No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph. ”

C. Relevant domestic law

Election Act 2001 (published in the Official Gazette of Bosnia and Herzegovina no s. 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)

Article 8.1 §§ 1-2

“ The members of the Presidency of Bosnia and Herzegovina directly elected from the territory of the Federation – one Bosniac and one Croat , shall be elected by voters recorded in the Central Voters Register to vote for the Federation. A voter recorded in the Central Voters Register to vote in the Federation may vote for either the Bosniac or Croat Member of the Presidency, bu t not for both. The Bosniac and Croat member that gets the highest number of votes among candidates from the same constituent people shall be elected.

The member of the Presidency of Bosnia and Herzegovina that shall be directly elected from the territory of the Republika Srpska – one Serb , shall be elected by voters recorded in the Central Voters Register to vote in the Republika Srpska . Candidate who gets the highest number of votes shall be elected. ”

COMPLAINTS

The applicant takes issue with his ineligibility to stand for election to the Presidency of Bosnia and Herzegovina and to vote for a member of his own community ( Bosniacs living in the Republika Srpska ) to this office. He relies on Article 1 of Protocol No. 12 to the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant suffered discrimination, contrary to Article 1 of Protocol No. 12 to the Convention, arising from the very existence of the constitutional arrangements according to which Bosniacs and Croats from the Republika Srpska and Serbs from the Federation of Bosnia and Herzegovina are not eligib le to stand for election to the Presidency of Bosnia and Herzegovina (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § § 52-56, E CHR 2009 ; Aziz v. Cyprus , no. 69949/01, ECHR 2004 ‑ V ; and, mutatis mutandis , Timishev v. Russia , nos. 55762/00 and 55974/00, § 58 , ECHR 2005 ‑ ...)?

2. Has the applicant suffered discrimination, contrary to Article 1 of Protocol No. 12 to the Convention , because of his inability to vote for a member of his own community ( Bosniacs living in the Republika Srpska ) to the Presidency of Bosnia and Herzegovina arising from the constitutional arrangements mentioned above ?

[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.