Information Note on the Court’s case-law 197

June 2016

Pilav v. Bosnia and Herzegovina - 41939/07

Judgment 9.6.2016 [Section V]

Article 1 of Protocol No. 12

Ineligibility of Bosniac living in the Republika Srpska to stand for election to the national presidency: violation

Facts – Under the Bosnian Constitution, only persons declaring affiliation with a “constituent peoples” were entitled to stand for election to the Presidency, which consisted of three members: one Bosniac and one Croat, each directly elected from the Federation of Bosnia and Herzegovina, and one Serb directly elected from the Republika Srpska. The applicant, a Bosniac living in the Republika Srpska was as a result excluded from the Presidential elections.

Law – Article 1 of Protocol No. 12: In Sejdić and Finci v. Bosnia and Herzegovina concerning the inability of the applicants, of Roma and Jewish origin respectively, to stand for election to the Presidency and in Zornić v. Bosnia and Herzegovina concerning an applicant who did not declare affiliation with any of the “constituent peoples” but declared herself a citizen of Bosnia and Herzegovina, the Court found that the impugned constitutional precondition, linked to candidates’ affiliation to one of the constituent groups, amounted to a discriminatory difference in treatment in breach of Article 1 of Protocol No. 12.

Unlike the applicants in those judgments, however, the present applicant belonged to one of the “constituent peoples”, and thus had a constitutional right to participate in elections to the Presidency. However, in order effectively to exercise that right he was required to move to the Federation of Bosnia and Herzegovina. Therefore, while theoretically eligible to stand for election to the Presidency, in practice, he could not use this right as long as he lived in the Republika Srpska.

In relation to cases concerning Article 3 of Protocol No. 1, the Court had found that a residence requirement was not disproportionate or irreconcilable with the underlying purposes of the right to free elections. Enjoyment of the right to vote and to stand for election could depend on the nature and degree of the links that existed between the individual applicant and the legislature of the particular country. However, the Presidency of Bosnia and Herzegovina was a political body of the State and not of the Entities. Its policy and decisions affected all citizens of Bosnia and Herzegovina, whether they lived in the Federation, the Republika Srpska or Brčko District. Therefore, although the applicant was involved in political life in the Republika Srpska, he was also clearly concerned with the political activity of the collective Head of State. While it was true that the residence requirement in question applied to all the “constituent peoples” equally, the applicant was treated differently from Serbs living in the Republika Srpska. The reasons advanced by the Government to justify this difference in treatment, such as a need to preserve peace and facilitate dialogue between different ethnic groups, were the same as those already examined by the Court in Sejdić and Finci . For that reason, notwithstanding the difference between this case and Sejdić and Finci and Zornić , the present applicant had also been excluded from standing for election to the Presidency by a combination of his ethnic origin and place of residence. The territorial restriction in question thus amounted to a discriminatory treatment in breach of Article 1 of Protocol No. 12.

Conclusion : violation (unanimously).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See Sejdić and Finci v. Bosnia and Herzegovina [GC], 27996/06 and 34836/06, 22 December 2009, Information Note 125 ; and Zornić v. Bosnia and Herzegovina , 3681/06, 15 July 2014, Information Note 176 )

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