DISSENTING OPINION OF JUDGE BONELLO

On principle and in the abstract, I cannot but share the reasoning of the majority as to the significance of non-discrimination in securing the enjoyment of electoral rights. I voted, with major reservations, to find the two applications admissible. But I also voted, with fewer hesitations, against finding a violation of the Convention. These two cases may appear to be the simplest the Court has had to deal with to date, but they may well be, concurrently, among the more insidious. There is nothing so obvious as finding damnable those provisions which, in a constitutional set-up , prevent Roma and Jews from standing for election. So far, an open and shut violation, hardly worth wasting time on.

Behind this invitation to get on with more challenging business, however, lurk issues which have disturbed me deeply and to which, I confess, I heard no satisfactory answers from the Court. Certainly, persuasive answers exist, were the Court to shove history out of its front door. I believe the present judgment does precisely that: it has divorced Bosnia and Herzegovina from the realities of its own recent past.

After the extravagantly violent events of 1992 which witnessed horrific blood baths, ethnic massacre and vendettas without frontiers, the international community intervened: first ly in an attempt to achieve a truce between Bosniacs, Serbs and Croats, and later a more permanent settlement – the Dayton Peace Accords of 1995. These were hammered out in protracted and persistent negotiations which aimed at creating institutional bodies based almost exclusively on systems of checks and balances between the three belligerent ethnicities. It was ultimately a most precarious equilibrium that was laboriously reached, resulting in a fragile tripartite symmetry born from mistrust and nourished on suspicion.

Only the action of that filigree construction extinguished the inferno that had been Bosnia and Herzegovina. It may not be perfect architecture, but it was the only one that induced the contenders to substitute dialogue for dynamite. It was based on a distribution of powers, tinkered to its finest details, regulating how the three ethnicities were to exercise power - sharing in the various representative organs of the State. The Dayton A greement dosed with a chemist ’ s fastidiousness the exact ethnic proportions of the peace recipe.

Now this Court has taken it upon itself to disrupt all that. Strasbourg has told both the former belligerents and the peace-devising do-gooders that they got it all wrong. They had better start all over again. The Dayton formula was inept, the Strasbourg non-formula henceforth takes its place. Back to the drawing board.

The questions I ask myself are closely linked with both the admissibility and the merits of the two applications: does it fall within this Court ’ s remit to behave as the uninvited guest in peacekeeping multilateral exercises and treaties that have already been signed, ratified and executed? I would be the first to want the Court not to be too small for its ideals. I would be the last to want the Court to be too big for its boots.

A second question follows: the Court has almost unlimited powers when it comes to granting remedies to established violations of Convention-acknowledged human rights – and that surely is as it should be. But do these almost unlimited powers include that of undoing an international treaty, all the more so if that treaty was engineered by States and international bodies, some of which are neither signatories to the Convention nor defendants before the Court in this case ? More specifically, does the Court have jurisdiction, by way of granting relief, to subvert the sovereign action of the European Union and of the United States of America, who together fathered the Dayton Peace Accords, of which the Bosnia and Herzegovina Constitution – impugned before the Court – is a mere annex? I do not offer facile answers to these questions, but believe them to be cogent enough for the Court to have tackled them preliminarily and in some depth. It did not.

Again, one cannot possibly disagree with the almost platitudinous P reamble to the Convention that human rights “are the foundation of peace in the world”. Sure they are. But what of exceptionally perverse situations in which the enforcement of human rights could be the trigger for war rather than the conveyor of peace? Are the rights of the two applicants to stand for election so absolute and compelling as to nullify the peace, security and public order established for the entire population – including themselves? Is the Court aware of its responsibility in reopening the Dayton process, in order to bring it into line with its judgment? And will it face up to the enormities of failure, should the new Strasbourg dawn fail to turn up for its appointment?

The whole structure of the Convention is based on a primordial sovereignty of human rights, but, saving the very core rights (to which that of standing for election certainly does not belong), always subject to their exercise in conformity with the rights of others and with the overriding social good. I cannot see the Convention wanting the applicants to stand for election come hell or high water. Election candidates, even with Armageddon as the price.

I would be the first to bellow how invaluable the values of equality and non - discrimination are – but then national peace and reconciliation are at least equally so. The Court has canonised the former and discounted the latter. With all due respect to the Court, the judgment seems to me an exercise in star-struck mirage-building which neglects to factor in the rivers of blood that fertilised the Dayton Constitution. It prefers to embrace its own sanitised state of denial, rather than open its door to the messy world outside. Perhaps that explains why, in the recital of the facts, the judgment declined to refer even summarily to the tragedies which preceded Dayton and which ended exclusively on account of Dayton. The Court, deliberately or otherwise, has excluded from its vision not the peel, but the core of Balkan history. The Court felt compelled to disgrace the Dayton C onstitution, but has not felt compelled to put something equally peace salving in its place.

I also question the Court ’ s finding that the situation in Bosnia and Herzegovina has now changed and that the previous delicate tripartite equilibrium need no longer prevail. That may well be so, and I just hope it is. In my view, however, a judicial institution so remote from the focus of dissention can hardly be the best judge of this. In traumatic revolutionary events, it is not for the Court to establish, by a process of divination, when the transitional period is over, or when a state of national emergency is past and everything is now business as usual. I doubt that the Court is better placed than the national authorities to assess the point in time when previous fractures consolidate, when historical resentments quell and when generational discords harmonise. I find that claims such as these, arguably based on self-delusory wishful thinking, show little or no respect for the inexhaustible resources of rancour. The Court does ill to shut its mind to histories in which hate validates culture.

The Court has ordered the respondent State to put the Dayton Peace A ccords in the liquidi s er and to start looking for something else. I, for my part, doubt that any State should be placed under any legal or ethical obligation to sabotage the very system that saved its democratic existence. It is situations such as these that make judicial self-restraint look more like a strength than a flaw.

The Court has repeatedly accepted that the enjoyment of the majority of basic human rights – not least, the right to stand for election – is subject to intrinsic restrictions and extrinsic curtailment. It can be abridged for objective and reasonable considerations. The exercise of fundamental rights can suffer limitations for the purposes of security and public order and in keeping with the general interest of the community. It can shrink as a consequence of exceptional historical realities, such as terrorism and organised crime or in the aftermath of national emergencies.

Strasbourg has, over the years, approved quite effortlessly the restriction of electoral rights (to vote in or stand for elections) based on the widest imaginable spectrum of justifications: from absence of language proficiency [29] to being in detention [30] or having previously been convicted of a serious crime [31] ; from a lack of “four years ’ continuous residence” [32] to nationality and citizenship requirements [33] ; from being a member of parliament in another State [34] to having double nationality [35] ; from age requirements [36] to being under 40 years old in senate elections [37] ; from posing a threat to the stability of the democratic order [38] to taking the oath of office in a particular language [39] ; from being a public officer [40] to being a local civil servant [41] ; and from the requirement that would-be candidates cannot stand for election unless endorsed by a certain number of voters ’ signatures [42] to the condition of taking an oath of allegiance to the monarch [43] .

All these circumstances have been considered sufficiently compelling by Strasbourg to justify the withdrawal of the right to vote or to stand for election. But a clear and present danger of destabilising the national equilibrium has not. The Court has not found a hazard of civil war, the avoidance of carnage or the safeguard of territorial cohesion to have sufficient social value to justify some limitation on the rights of the two applicants.

I do not identify with this. I cannot endorse a Court that sow s ideals and harvests massacre.

[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. (Footnote to ECRI Recommendation cited above.)

[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 Constitution of Bosnia and Herzegovina.

[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 . T alks have now been reopened ( the “Butmir Package”), but it appears that the politicians are stick ing to their previous positions .

[13] . See paragraph 41 of the judgment.

[14] . Article IV § 4 of the Constitution of Bosnia and Herzegovina:

“ Powers . The Parliamentary Assembly shall have responsibility for:

( a ) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the As sembly under this Constitution.

( b ) 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.

( c ) Approving a budget for the institutions of Bosnia and Herzegovina .

( d ) Deciding whether to consent t o the ratification of treaties.

( e ) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities. ”

[15] . See the Constitution of Bosnia and Herzegovina , Article IV § 3 ( c ) .

[16] . Ibid., Article IV § 3 ( e ) .

[17] . The Constitution of Bosnia and Herzegovina 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 http://www.ustavnisud.ba/eng/odluke/povuci_pdf.php?pid=67930 for the c oncurring opinion of Judge Feldman to the decision of the Constitutional Court of Bosnia and Herzegovina, AP-2678/06 .

[22] . See Ždanoka 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, ECHR 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 j udgment .

[29] . Clerfayt and Others v. Belgium , no. 27120/95, Commission dec ision of 8 September 1997, Decisions and Reports (DR) 90, p. 35.

[30] . Holland v. Ireland , no. 24827/94, Commission decision of 14 April 1998, DR 93 -A , p. 15 .

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

[32] . Polacco and Garofalo v. Italy , no . 23450/94 , Commission dec ision of 15 September 1997, DR 90 -A , p. 5.

[33] . Luksch v. Italy , no. 27614/95, Commission dec ision of 21 May 1997, DR 89 -B , p. 76.

[34] . M . v. the United Kingdom , no . 19316/83, Commission dec ision of 7 March 1984, DR 37, p. 129.

[35] . Gan chev v. B ulgaria , no . 28858/95, Commission dec ision of 21 November 1966, DR 87 -A , p. 130.

[36] . W . , X . , Y . and Z . v. Belgium , nos . 6745 /74 and 6746/74, Commission decision of 30 May 1975, Yearbook 18 , p. 236.

[37] . Ibid.

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

[39] . Fryske Nasjonale Partij and Others v. t he Netherlands , no. 11100/84, Commission dec ision 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 ‑ VI .

[42] . Asensio Serqueda v. Spain , no. 23151/94, Commission decision of 9 May 1994, DR 77 -B , p. 122.

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