Bosnia and Herzegovina is not a real democracy but an “ethnic democracy,” as one cannot exclude a part of the population from the democratic process in a true democracy, former judge at the Constitutional Court of Bosnia’s Federation (FBiH) part and one of the judges at the European Court of Human Rights, Faris Vehabovic, told N1 on Friday.
Politicians only respect the opinion of the Venice Commission, the advisory body to the Council of Europe (CoE), when it suits them, he said.
“We do not have a fair approach toward the bodies we are members of and which are there to help us build a democracy, a constitutional and a legal system,” he said. “If we have decided that we are members of the CoE, then we need to respect its decisions. However, we not only don’t respect CoE decisions. But we don’t respect the European Court for Human Rights.”
Bosnia’s Constitution is part of the Dayton Peace Agreement that ended the 1992-95 war. It can be changed only by the representatives of Bosniaks, Serbs and Croats.
But others live in Bosnia too and two of them sued the country for not allowing them to run for president and the upper house because they are neither Bosniaks, nor Croats or Serbs.
The two are a Roma and a Jew, Dervo Sejdic and Jakob Finci, respectively. The Human Rights Court in Strasbourg ruled in their favour and ordered Bosnia to fix its Constitution so it does not violate the rights of minorities and allow them to hold all posts in the government. The problem was also assessed as an impediment to functionality and democratic development by the Council of Europe’s Venice Commission.
But then a Bosnian Croat politician, Bozo Ljubic, took a case to Bosnia’s Constitutional Court. He complained that the country’s Election Law violates the Constitution because it violates the constitutional rights of the constituent peoples (the Serbs, Croats, and Bosniaks) as guaranteed by the Dayton Accords to choose their own representatives.
Numbers brought the problem to light. Because there are more than 1.7 million Bosniaks and only little more than half a million Croats in the sub-state the two share, Bosniaks can easily elect the Croat representatives in the country’s Presidency and Upper House as well.
The Constitutional Court has to stick to the Constitution and could only rule in Ljubic’s favour and request that the Parliament fix the issue.The ruling was handed down in 2016.
Politicians have still not managed to find a compromise on how to meet both the European Court ruling and the ruling of the Constitutional Court.
Vehabovic said that there is a possibility that the Strasbourg court will also decide on a case similar to the Sejdic-Finci one, submitted by Bosnian Serb Svetozar Pudaric, who complained about not being able to run for the post of the Bosnian Serb Presidency member since he does not live in the Serb-dominated part of the country, Republika Srpska (RS).
“The rulings of the European Court are the priority, and any other ruling comes after. Not only because of the content of the ruling, but also because the European Court is above the Constitutional Court,” Vehabovic said.
The Croat Democratic Union (HDZ), the main Bosnian Croat ethnic-oriented party in the country, has managed to raise marginal issues at the forefront, claimed Vehabovic. He explained this through the ruling in another complaint which was submitted by Bosnian Azra Zornic.
She complained that she could not run for the House of Peoples and the Presidency as a Bosnian citizen without declaring her ethnic belonging.
The court ruled in her favour, but Bosnia never implemented the necessary changes that would ensure her human rights are respected.
“If you have national minorities and citizens who do not declare that they belong to an ethnic or national group, and you want to include them in the decision-making process as equal to the constitutive peoples, then the House of Peoples would not even have a reason or possibility to act,” Vehabovic said.
These issues are specific to Bosnia and Herzegovina, where there is a need for protection mechanisms for collective rights, he said.
“But this protection must be limited to the group, and not to the entire population. Here, the House of Peoples exists only as a system that can block processes,” he said.
According to the Strasbourg judge, it would be good if Bosnia would function on a civic principle, but this is not possible in the current setup and the relations in the country. For it to be possible, a compromise between the civic and the ethnic principles would need to be found.