PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE MIJOVIĆ, JOINED BY JUDGE HAJIYEV

I. G eneral remarks

In the Sejdić and Finci v. Bosnia and Herzegovina judgment, the Grand Chamber has found a violation of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1 as regards that State ’ s constitutional arrangements in respect of the House of Peoples, and a violation of Article 1 of Protocol No. 12 with regard to the constitutional arrangements on the State Presidency of Bosnia and Herzegovina.

Although I had a few reservations concerning the Grand Chamber ’ s reasoning on the latter point, I had no difficulties in sharing the majority ’ s view that the constitutional arrangements concerning the State Presidency structure amount to a violation of the prohibition of discrimination. On the other hand, and to my regret, my opinion on the former point differs significantly from the conclusion reached by the majority.

Since this is the very first case related to the general prohibition of discrimination as enshrined in Article 1 of Protocol No. 12, and a case that tackles the essence of the internal State structure of Bosnia and Herzegovina, there have been huge expectations on the part of the public. In addition, the fact that this is the very first case of its kind in the Court ’ s case-law, in the sense that it might result in serious constitutional turmoil and rearrangements in one of the Council of Europe member States, has contributed to those expectations.

The specific characteristics not only of the creation of Bosnia and Herzegovina, but also of its accession to the Council of Europe, have further increased the importance of this case. It might be said that all of the weak features of Bosnia and Herzegovina ’ s statehood, visible but ignored at the moment of its accession to the Council of Europe, have shown themselves to their full extent in this case.

My general remarks are firstly related to the fact that, as Judge Bonello has correctly pointed out in his dissenting opinion, the Grand Chamber has failed to analyse both the historical background and the circumstances in which the Bosnia and Herzegovina Constitution was imposed. I believe that, in so doing, the Court has set aside its previous case-law, in which it examines all the relevant factors that are important in making a final evaluation. I consider those circumstances to be particularly important in this case, because it is precisely those circumstances that led to the current State structure of Bosnia and Herzegovina.

II. F actual background

The first thing I wondered in this case was whether Bosnia and Herzegovina was totally aware of the possible consequences of ratifying all Convention Protocols when it did so.

Specifically, Bosnia and Herzegovina is one of the seventeen Council of Europe member States which have ratified Protocol No. 12. Given that thirty other member States decided not to do so, this illustrates different approaches towards Protocol No. 12 and the issues covered by it.

The two applications before us deal with the very heart of the post-war organisational structure of the State, put in place by the 1995 Constitution of Bosnia and Herzegovina, which was, from a technical point of view, a part or, more accurately, an annex to an international peace settlement – the Dayton Agreement . Once the masters of war had decided to become masters of peace, after long and difficult negotiations between political representatives of the Bosniacs, Croats and Serbs under the supervision of the international community, they created a S tate that was of an unprecedented shape, one that was previously totally unknown in international and constitutional law.

The Dayton Agreement constituted Bosnia and Herzegovina, comprising of two entities, while the Preamble to the Constitution reads that only Bosniacs, Serbs and Croats are constituent peoples. The other ethnic groups, which did not take sides in the conflict, were simply set aside. Their legal position, an extremely sensitive issue, was left for some calmer and politically less sensitive time.

In accordance with the Dayton Agreement constitutional arrangements, persons belonging to national (ethnic) minorities cannot be candidates for the State Presidency and the House of Peoples of the State Parliament, although these two State institutions are not the only bodies where the balance of power between three constituent peoples was designated by this settlement (see, for example, the structure of the Constitutional Court, which consists of two Bosniacs, two Croats, two Serbs and three foreign judges).

In the present case, the distribution of posts in the State organs between the constituent peoples was a central element of the Dayton Agreement , making peace in Bosnia and Herzegovina possible. In such a context, denying legitimacy to norms that may be problematic from the point of view of non-discrimination but were necessary to achieve peace and stability and to avoid further loss of human lives would be very difficult.

That is the key aspect of the sensitive nature of these applications, because the changes in the composition of specific political institutions requested by the applicants would actually require changes in the existing balance of power, which could rekindle the serious tensions that are still present in Bosnia and Herzegovina.

Aware of the necessity for constitutional reform, in 2006 the international community pushed the leading politicians of Bosnia and Herzegovina to enter into negotiations with a view to adopting an electoral system that would guarantee equal enjoyment of political rights to all citizens, irrespective of ethnicity, but these proved completely unsuccessful. Talks have now been reopened, which means that, in dealing with the instant cases, the Court is entering a highly sensitive area, one that concerns an issue that has already received tremendous public attention.

The applicants in these two cases are a Rom and a Jew. They complained that, despite possessing experience comparable to that of the highest elected officials, they were prevented by the Constitution of Bosnia and Herzegovina and the Election Act 2001 from standing as candidates for the Presidency and the House of Peoples of the Parliamentary Assembly, solely on the ground of their ethnic origin, which, in their opinion, amounted to discrimination.

III. S tate structure of Bosnia and Herzegovina

As noted above, the Constitution of Bosnia and Herzegovina was the result of long and difficult negotiations between representatives of the Bosniacs, Croats and Serbs, under the supervision of the international community. Its complex power-sharing arrangements concern mainly the Bosniacs, Croats and Serbs, as direct parties to the 1992-95 war, and so the main political institutions were designed to achieve a balance of power between the three constituent peoples. Other ethnic groups were not taken into consideration at that time, since they had not taken sides in the conflict. After the war these minority groups became part of all power-sharing arrangements at the E ntity levels. This has not been the case at the State level, however, and that is the reason for the applicants ’ complaints.

Power-sharing arrangements at the State level, particularly those concerning the structure of the House of Peoples and the State Presidency, provide that only those who declare affiliation with one of the three main ethnic groups are entitled to hold a position in these two State organs. It must be added that, in the context of Bosnia and Herzegovina, ethnic affiliation is not to be taken as a legal category, since it depends exclusively on one ’ s self-classification, which represents stricto sensu a subjective criterion. It actually means that everyone has a right to declare (or not) his or her affiliation with one ethnic group. It is not obligatory to do so. There is neither a legal obligation to declare one ’ s ethnic affiliation, nor objective parameters for establishing such affiliation.

Affiliation becomes an important issue only if an individual wishes to become involved in politics. A declaration of ethnic affiliation is thus not an objective and legal category, but a subjective and political one.

IV. V iolation of A rticle 1 of Protocol No. 12

Although I had a few reservations concerning the Grand Chamber ’ s reasoning with regard to the violation of Article 1 of Protocol No. 12, I had no difficulties in sharing the majority ’ s view that Bosnia and Herzegovina ’ s constitutional arrangements concerning the State Presidency structure represent a violation of the general prohibition of discrimination.

My dissension regarding this part of the Grand Chamber ’ s judgment arises from my expectations that the Court would use this case, as the very first of its kind, to lay down specific first principles, standards or tests that might be considered universal and applicable to future cases concerning general discrimination. Those expectations obviously turned out to be unrealistic, since the Court has merely reiterated the very same reasoning and justification as those applied in finding a violation of Article 14 with regard to the complaint concerning the constitutional arrangements on the House of Peoples.

In addition, the Court treated this complaint as being of less importance, thus creating the impression that Article 1 of Protocol No. 12 was applied only because it was not possible to apply Article 3 of Protocol No. 1. The relevant reasoning on Article 1 of Protocol No. 12 was set out in only two paragraphs, in which the Court came to the conclusion that there was no “pertinent distinction to be drawn ... between the House of Peoples and the Presidency of Bosnia and Herzegovina” with regard to discriminatory constitutional arrangements. In contrast, I believe that there were a few distinctive elements that should have been discussed.

The tripartite structure of the Bosnia and Herzegovina State Presidency is, like many other State institutions in that country, a result of the political compromise achieved by the peace accord. Its structure was intended to establish a mechanism of balance and to prevent the supremacy of any one people in the decision-making process. In my opinion, the key question that required an answer in this case was whether that tripartite structure was ever justified, and whether it continues to be justified. From the perspective of the case-law on Article 1 of Protocol No. 12, it would have been not only interesting but also very useful had the Court decided to give its view on this point. Instead, it merely reiterated the arguments concerning the tests applied in the Article 14 part of the judgment, an approach that I find disappointing.

Hypothetically speaking, were it not occurring in a State built on atrocities, massacres and bloodshed, I would be of the opinion that, even taken alone, the obligation on an individual to declare his or her affiliation with an ethnic group in order to stand as a candidate for a public position is unacceptable and sufficient to find a violation of the prohibition of discrimination based on ethnic affiliation.

Turning back to the State Presidency structure, if Bosnia and Herzegovina were a stable and self-sustainable State, the ineligibility of minorities, but also the ineligibility of all those who are unable or unwilling to declare their ethnic affiliation in order to stand as candidates for public positions would be the essence of discrimination. However, since Bosnia and Herzegovina was created as result of pressure from the international community and, fourteen years later, still does not function as an independent and sovereign State, it cannot be said that it represents a State that is sufficiently stable to withstand the above approach.

On the other hand, if nothing is done in order to improve the current situation, there is no chance that progress will occur. The elimination of mistrust among ethnicities is, in my opinion, a process that must be developed very carefully, step by step. If the time has come for a change in the post-conflict State structure (and here I emphasise again that the Court has not embarked on any such evaluation), I hope that a change in the composition of the State Presidency could be the first step. The State Presidency is an institution that represents the State as a whole [7] , while the House of Peoples has an important and sensitive role in the protection of “vital national interests”.

V. V iolation of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1

Regrettably, I cannot share the majority ’ s opinion as regards Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1 for the following reasons .

First of all, the issue of the applicability of Article 3 of Protocol No. 1 is very questionable. Article 3 of Protocol No. 1 protects the right to free elections, although there is no definite and commonly accepted answer to the question whether this covers both direct and indirect elections [8] . Relying on its case-law, however, the Court states that Article 3 of Protocol No. 1 was “carefully drafted so as to avoid terms which could be interpreted as an absolute obligation to hold elections for both chambers in each and every bicameral system” (see paragraph 40 of the judgment) . At the same time, as the Grand Chamber points out, it is clear that Article 3 of Protocol No. 1 applies to any of a parliament ’ s chambers to be filled through direct elections. Direct or indirect, it should be clarified that in Bosnia and Herzegovina, no elections are envisaged for the members of the House of Peoples. They are appointed by the E ntity Parliaments, which means that the complaints before the Court are of a purely theoretical nature, since there have been no previous elections nor is there an obligation on the E ntity Parliaments to appoint any particular candidate. The composition of the House of Peoples is not the result of an electoral process. The members of the House of Peoples are to be designated/selected by a majority in the Republika Srpska National Assembly or a majority in the Clubs of Bosniacs and Croats in the Parliament of the Federation of Bosnia and Herzegovina [9] . Given that the original version of the Constitution was written in English, even a linguistic approach confirms that we are not in the presence of elections, but of appointments. In particular, Article IV of the Constitution reads that House of Peoples “shall comprise 15 delegates ”, and that “the designated delegates shall be selected ” by the respective E ntity Parliaments [10] .

The concept of the right to free elections in Bosnia and Herzegovina simply does not include per se the right to stand for election to the House of Peoples, since members of this House are, as noted, not elected, but designated/selected by the E ntity Parliaments.

The elections would still be indirect if the lists of candidates were announced during an electoral campaign or at any other moment before their appointment (and as such were transparent to the public), or if there were any criteria they had to fulfil in order to be appointed. However, their names do not appear on electoral ballots or lists. A fact that has been totally ignored by the Court is that neither the Constitution of Bosnia and Herzegovina nor the Election Act 2001 set out the criteria that candidates must fulfil in order to stand for election to the House of Peoples. There is not a single domestic provision that prescribes the structure, political party or even political option from which candidates are to be picked [11] . It is thus theoretically possible that any individual, including those who are not even engaged in public life, could be selected. Accordingly, the procedure for designating members of the House of Peoples does not depend on their political party membership; there are no formal ties between these delegates and voters and the candidates ’ names are unknown to the general public, voters included, before they are nominated by members of the E ntity Parliaments. What is formally needed is only their declaration of ethnic affiliation, which is of no legal relevance for anything other than their membership of the House of Peoples. Strictly speaking, it is clear that the applicants cannot be “elected”, not because of their ethnicity, but because of the absence of provisions which allow for the election of delegates in general, since the members of this House are exclusively appointed. Equally, a complaint might be lodged by individuals belonging to one of the three constituent peoples, claiming that there are no free elections to the House of Peoples for them either, since the only way for somebody to become a member of this House is through appointment by an E ntity Parliament. Accordingly, there is no general right for anyone to stand for election to the House of Peoples and there are no elections of this kind. Consequently, if this procedure is to be established as discriminatory, could the same discrimination criteria be applied to those parliamentary systems that prescribe that second chamber seats are hereditary (as in the British House of Lords) or conditioned by public function (as in the German Bundesrat )? I am of the opinion that an affirmative answer in respect of such systems would be as inappropriate as it is in respect of Bosnia and Herzegovina.

The fact that the only formal condition to be fulfilled by delegates to the House of Peoples concerns one ’ s ethnic affiliation shows that the House of Peoples was designed to secure ethnic balance in the legislature. It is a well-established fact that mechanisms of this kind made peace in Bosnia and Herzegovina possible, and it is obvious that even fourteen years later there is still no common and mutual approach towards possible constitutional rearrangements in that State [12] .

My second point of disagreement with the Grand Chamber ’ s decision on admissibility is related to the legal nature of the House of Peoples. The Grand Chamber ’ s understanding is that it is the second chamber of the Bosnia and Herzegovina Parliamentary Assembly, a point on which I disagree.

Generally speaking, an upper house is usually distinct from the lower house in one (or more) of the following respects: it has less power than the lower house, including that of expressing a reservation on certain decisions of the lower house; it has limited powers, such as those concerning certain constitutional amendments that may require its approval; it is an advisory or “revising” chamber, so that its powers of direct action are often reduced in some way; it represents administrative or federal units; if elected, its members often sit for longer terms than those of the lower house (if composed of peers or nobles, members hold their seats for life) and if elected, they are elected in sections for staggered terms, rather than all at once.

As regards their institutional structure, there is a great variety in the way the members of an upper chamber are assembled. They can be elected directly or indirectly, appointed, selected through hereditary means, or a certain mixture of all these systems can be applied. As noted above, the German Bund e srat is quite unique in that its members are members of the cabinets of the German Länder who are merely delegated and can be recalled at any time, as is the British House of Lords, where the seats are partly hereditary.

As shown above, the upper chamber is, as a rule, designed to represent administrative or federal units, which is not the case in Bosnia and Herzegovina, since the House of Peoples represents not only the entities of Bosnia and Herzegovina, but also ethnicities (that is, constituent peoples). Both chambers of the Parliamentary Assembly are equal and they form two parts, which cannot function independently. Each and every draft text has to be discussed and adopted by both houses, while the special role of the House of Peoples is to protect “vital national interests”.

With regard to the applicability of Article 3 of Protocol No. 1, the Grand Chamber found the extent of the legislative powers enjoyed by the House of Peoples to be decisive [13] while, in my opinion, it is quite the opposite. Specifically, both houses have the same powers [14] , since all legislation “shall require the approval of both chambers” [15] . This in fact confirms that they have equal standing, although ethnic representation in the House of Peoples is of some relevance only when it comes to the vital interests of the constituent peoples: “[a] proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb d elegates selected in accordance with paragraph l (a) ... Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb d elegates present and voting” [16] .

Constitutional provisions related to those powers that are not divided between the House of Representatives and the House of Peoples (see footnote 2 on this page) illustrate that the Parliamentary Assembly of Bosnia and Herzegovina has a unique structure that does not allow any categorisation according to commonly accepted academic models. Additionally, Article X of the Constitution provides that the Constitution “may be amended by a decision of the Parliamentary Assembly”, which is to be interpreted as stating that both houses are to decide on any such question.

An implied conclusion in this judgment, namely that the applicants in this case, who are of Roma and Jewish origin, are prevented from participating in the legislature of Bosnia and Herzegovina because they are not eligible to stand for election to the House of Peoples, would be wrong, since both Houses have the same powers and the applicants have the entirely plausible option of becoming members of the House of Representatives, where candidature is independent of ethnicity [17] .

The House of Peoples is a veto chamber where members perceive their exclusive task as being that of defending the interests of their peoples, and that is exactly what makes it a sui generis mechanism. Fourteen years after the Dayton Agreement , does Bosnia and Herzegovina still need this mechanism? That is another question that should be addressed as a justification for a finding on the merits only if Article 3 of Protocol No. 1 is applicable.

To sum up, my opinion is that Article 3 of Protocol No. 1 is not applicable in this case because the right of any individual to stand for election to the House of Peoples per se simply does not exist in domestic law; the House of Peoples is a non-elective organ, having neither the typical characteristics nor the powers of a second chamber, and its structure places it outside the ambit of Article 3 of Protocol No. 1.

As regards the merits of this complaint , the main question is whether the current differential treatment is discriminatory. The definition that has been developed in the Court ’ s case-law on Article 14 is that a difference of treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The majority ’ s conclusion that the relevant constitutional provisions were not intended to establish ethnic domination, as argued by the applicants, but indeed to stop a brutal conflict and to secure effective equality between the warring parties, i.e. constituent peoples, is correct, as is the majority ’ s conclusion that the impact of these provisions is different treatment on ethnic grounds. However, was this arrangement justified, and if yes, are the relevant grounds still present and significant? The Grand Chamber preferred to leave this question half-answered, while I thought that a detailed answer to this question would have been the most important response. Differential treatment of individuals belonging to “Others” was an issue left to be dealt with once the situation in Bosnia and Herzegovina was less sensitive, and from that perspective the Court has accepted that it was initially justified.

However, what is the situation now, fourteen years after the Dayton Agreement ? Returning to the facts that initially justified the impugned arrangements and so far as losses are concerned, at least 100,000 inhabitants of Bosnia and Herzegovina disappeared or were killed during the war. Almost 1.3 million people from the pre-war population (28%) became refugees living outside Bosnia and Herzegovina. In the absence of war and allowing for the usual death, birth and migration rates, at the end of 1995 Bosnia and Herzegovina would have had 4.5 million inhabitants, while in reality there were only 2.9 million people in the country at the end of 1995. It has been fourteen years since the armed conflict ended, but is there real and significant progress as argued by the Grand Chamber?

The latest Amnesty International report on Bosnia and Herzegovina states that “13 years after the war ended an estimated 13,000 people still remained missing. The use of nationalist rhetoric increased in [Bosnia and Herzegovina] and the country continued to be deeply divided along ethnic lines” [18] .

According to the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, more than 1.2 million people have not yet returned to their pre-war homes. Those that have returned are often faced with inadequate access to housing and employment. About 2,700 families still live in so-called collective housing establishments. Some of the returnees have not been able to repossess their property, either because it was destroyed or because there is no willingness on the part of the authorities to let them reintegrate [19] . Nor does the political situation appear better. The State has been run by political parties bearing nationalist flags and using nationalist rhetoric. Many war-crimes suspects are still free, although there is a process of transferring war-crimes cases from the International Criminal Court for the former Yugoslavia to domestic courts. Judicial and prosecutorial authorities are still supervised and instructed by international judges and prosecutors. All these facts were sufficient reasons for the United Nations, the European Union and the Peace Implementation Council to extend (in November 2009) the mandate of the High Representative. There are other signs that the international community sees no significant progress in Bosnia and Herzegovina (for example, international military forces are still present, as is the European Union Police Mission ). On official websites, many States warn their citizens not to travel to Bosnia and Herzegovina on safety grounds. The 2006 elections showed that most voters still preferred nationalist rule because they felt safe being led by “their own people”. Children in schools are separated [20] , and cities that had a mixed population before the war are still divided. On becoming a member of the Council of Europe , Bosnia and Herzegovina undertook, among other commitments, to “review within one year, with the assistance of the European Commission for Democracy Through Law ( Venice Commission ) , the electoral legislation in the light of C ouncil o f E urope standards , and to revise it where necessary” . The fact that, in spite of this commitment undertaken on its accession to the Council of Europe, Bosnia and Herzegovina has not yet honoured it shows that there is no consensus among leading political parties.

In the light of the above, can one be absolutely certain of the lack of justification for these constitutional arrangements today? On the other hand, if they are still justified, do such arrangements pursue a legitimate aim? As the Venice Commission has correctly pointed out, “the distribution of posts in the S tate organs between the constituent peoples was a central element of the Dayton Agreement making peace in B osnia and Herzegovina possible. In such a context it is difficult to deny legitimacy to norms that may be problematic from the point of view of non-discrimination but necessary to achieve peace and stability and to avoid further loss of human lives”. Peace has been achieved, but the stability factor remains questionable. It may be that, as pointed out by Judge Feldman of the Bosnia and Herzegovina Constitutional Court in his concurring opinion, “ ... [I regard] the justification as being temporary rather than permanent, ... but the time has not yet arrived when the State will have completed its transition away from the special needs which dictated the unusual architecture of the S tate under the Dayton Agreement and the Constitution of Bosnia and Herzegovina” [21] . In Ždanoka v. Latvia [22] , the Court found that “it is not surprising that a newly established democratic legislature should need time for reflection in a period of political turmoil to enable it to consider what measures were required to sustain its achievements” . In the same judgment [23] , the Court further stated that the domestic authorities should be left “sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions, including the national parliament, and to answer the question whether the impugned measure is still needed ... ” Are the special constitutional arrangements in Bosnia and Herzegovina still deemed necessary and can the current situation still be justified, despite the passing of time? Is it up to the European Court of Human Rights to determine when the time for change has arrived? I would hesitate to give a firm and definite answer to these questions. “Identity through citizenship” would be a desirable change, but ethnic distinction, in the Court ’ s case-law, is considered unnecessary and therefore discriminatory where the same result (legitimate aim) could be achieved through a measure that does not rely on a racial or ethnic differentiation, or on the application of criteria other than those based on birth [24] 1 . However, what other method would maintain the ethnic balance and build the confidence that is so needed in Bosnia and Herzegovina? The Court has not answered this question either; it concludes only that “the applicants ’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacks an objective and reasonable justification and has therefore breached Article 14 taken in conjunction with Article 3 of Protocol No. 1” (see paragraph 50 of the judgment) .

Accordingly, the test of proportionality between the means employed and the aim sought to be realised in this case has not been tried at all. I see this as a missed opportunity to provide more decisive and convincing arguments or at least a ground for comparison with other member States. The law of most, if not all, member States of the Council of Europe provides for certain distinctions based on nationality with regard to certain rights and the Court ’ s case-law allows a certain margin of appreciation to national authorities in assessing whether and to what extent differences justify a different treatment in law [25] 2 . Additionally, the scope of the margin of appreciation in the Court ’ s case-law varies “according to the circumstances”, as pointed out in Rasmussen v. Denmark [26] 3 . As the Court has found , “ [t] here are numerous ways of organising and running electoral systems and a wealth of differences, inter alia , in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision” [27] 4 . For the sake of the Court ’ s case-law, it would have been very interesting to see how far the Court would have interpreted the margin of appreciation left to the State in this case.

VI. C osts and expenses

Finally, I disagree with the majority ’ s decision to award the second applicant 20,000 euros (EUR) in respect of costs and expenses, while the first applicant was awarded only EUR 1,000. This discrepancy was explained by the fact that the second applicant ’ s team of representatives included three international members and/or experts and that they held meetings in New York and Sarajevo , while the first applicant was represented pro bono and claimed only EUR 1,000 for his counsel ’ s appearance at the hearing before the Court [28] . Since the submissions of both applicants were of comparable quality, I find it simply unfair to award them drastically different amounts.