06 May Some Thoughts on Baralija v. Bosnia and Herzegovina: An Expected Legal Development or a Hail Mary?
[Nasia Hadjigeorgiou is an Assistant Professor of Transitional Justice and Human Rights at the Cyprus campus of the University of Central Lancashire.]
On 29 October 2019 the ECtHR delivered its judgment in Baralija v. Bosnia and Herzegovina (BiH), yet another Bosnian voting case. This is the fourth case, following Sejdić and Finci v. BiH (2009), Zornić v. BiH (2014) and Pilav v. BiH (2016), in which the Court found a violation of the right to be free from discrimination under Art. 14 and Art. 1 of Protocol No. 12, and the right to free elections under Art. 3 of Protocol No. 1. In all cases, the violations are emanating from the country’s complex – and problematic – electoral provisions. Developed in the aftermath of the Bosnian civil war, they were intended to protect the country’s three constituent groups (Bosniacs, Serbs and Croats) by relying on ethnic and geographical quotas for all elected positions. According to the Constitution, the quotas apply to the three-member Presidency (Art. V) and both chambers of the Legislative Assembly (Art. IV). In particular, a third of these positions is reserved for Bosniacs residing in the Federation of BiH (one of the two entities in the country), another third for the Croats residing in the same entity and the rest for Serbs residing in the Republika Srpska (the other of BiH’s two entities). According to the ECtHR in Sejdić, Zornić and Pilav, these provisions unjustifiably disenfranchise two sets of Bosnian nationals: those that do not identify with one of the three constituent peoples, collectively and tellingly known in the Constitution as ‘others’, and those that reside in the ‘wrong’ entity (i.e. Bosniacs and Croats in the Republika Srpska and Serbs in the Federation). Despite Baralija being a continuation of these three judgments, it is also novel in that it was the first among them in which the ECtHR relied on Art. 46 of the European Convention.
While the Constitution does not provide for quotas in local elections, this has been mandated by a seminal judgment by the Bosnian Constitutional Court in 2000 – U-5/98 (Third Partial Decision). In the words of the Constitutional Court, ‘[e]ven if the constituent peoples are, in actual fact, in a majority or minority position in the Entities, the express recognition of Bosniacs, Croats, and Serbs as constituent peoples by the Constitution of BiH can only mean that none of them is constitutionally recognized as a majority or, in other words, that they enjoy equality as groups.’ It is in light of this judgment that the Election Act 2001 laid out the procedure and quotas that had to be complied with in local elections, including for the city of Mostar, a city in the Federation of BiH that is mostly inhabited by Croats and Bosniacs. The specific electoral provisions for Mostar were challenged domestically, with the Constitutional Court finding in 2010 that they were indeed unconstitutional and ordering the House of Peoples to amend them within six months of the publication of its decision in the Official Gazette.
The Election Act was not amended, so in 2012 the Constitutional Court adopted a ruling on the non-enforcement of its 2010 decision, finding that the relevant provisions would cease having legal effect. Thus, local elections in Mostar could not be held in the election cycles of 2012 and 2016 and as a result, the mayor of the city, elected in 2009, has been operating under a ‘technical mandate’. Ms Baralija, the head of the Mostar branch of the political party Naša Stranka, challenged the current state of affairs, which resulted in her inability to participate in local elections, as a violation of freedom from discrimination on the basis of her place of residence. BiH conceded that there was indeed a difference in treatment between Mostar residents and other citizens in the country, but argued that the delay in the implementation of the Constitutional Court’s decision was justified by the need to establish a long-term and effective power-sharing mechanism for the city council, in order to maintain peace and facilitate dialogue between the three ethnic groups. Starting from the premise that democracy cannot exist in the absence of democratic elections and proceeding to note that democracy is a fundamental feature of the European public order, the Court swiftly rejected BiH’s justification and found a violation of Art. 1 of Protocol No. 12.
This much was expected, both in light of the Court’s general jurisprudence on the right to free elections (see, for example, Aziz v. Cyprus), and its specific case law on the electoral provisions of BiH. What was more surprising was the ECtHR’s reliance, for the first time in a BiH voting case, on Art. 46 of the European Convention in order to give fairly specific guidance in terms of what was needed for the enforcement of its judgment. In particular, it considered that ‘the respondent State must, within six months of the date on which the present judgment becomes final, amend the Election Act 2001 in order to enable the holding of local elections in Mostar. Should the State fail to do so, the Court notes that the Constitutional Court, under domestic law and practice […], has the power to set up interim arrangements as necessary transitional measures.’ (para. 62)
The reference to the Constitutional Court’s ‘domestic law and practice’ relates to U-44/01, a 2004 case in which the Constitutional Court declared unconstitutional the changing of city names in the Republika Srpska in a way that alluded that they had an exclusively Serbian character. Following a failure by the Republika Srpska legislature to enforce its judgment by amending the city names, the Court stepped in with a follow-up judgment and either reinstated the original city names or conferred new temporary ones. These names, the Court ruled, would remain in place until the legislature replaced them with appropriate alternatives. Shaken into action, the relevant authorities accepted all but one of the names assigned by the Court and adopted a different name that was acceptable to it in the remaining instance. In the words of Prof. David Feldman, one of the international judges sitting on the Bosnian Constitutional Court at the time, ‘[t]his novel remedy broke the legislative logjam’ and showed that a rigorous follow-up to the Court’s decisions can complement, as well as check, the work of the legislature.
The Court’s decision to rely on Art. 46 in Baralija cannot be understood in isolation from the developments following the other three Bosnian voting cases. The international community’s response to these has been momentous: reports and suggestions for its implementation have been published by the UN Human Rights Council, the Venice Commission, the Parliamentary Assembly of the Council of Europe, non-governmental organisations and academics. Additionally, their implementation has been made a condition for BiH’s EU accession process, something repeated frequently by European officials. They sometimes cajole the BiH elite by promising that implementing the decisions and joining the EU will have concrete positive economic consequences for the country. On other occasions, they have issued warnings that non-enforcement can ‘potentially undermine the legitimacy and credibility of the country’s future elected bodies’ and that continued non-compliance with the ECtHR judgments will be financially detrimental to BiH. All of these have fallen on deaf ears.
The use of Art. 46 signifies the ECtHR’s determination to push with all its tools for the implementation of its judgment. Presumably, what the Court was hoping for in Baralija was a repetition of the aftermath of U-44/01. Yet, in the two months since the ECtHR’s decision became final (this happened on 29 January 2020), the Bosnian Constitutional Court has not taken any action. It remains to be seen whether it will and the effect this is likely to have on politicians in the country. Pragmatically, there is little room for even reserved optimism. Considering that Baralija only reached the ECtHR because the Bosnian authorities ignored the Constitutional Court’s 2010 and 2012 decisions, it is unlikely that they will be compelled to comply with a 2020 declaratory judgment on the same issue. When looked from this light, the Court’s use of Art. 46 appears as a desperate Hail Mary. At the same time however, it is not clear that the ECtHR had any other option. Having found a violation in Sejdić, it became impossible for the Court to change course in Zornić and Pilav, even though by the time these subsequent cases were decided, it was obvious that implementation was not forthcoming. The story was repeated in Baralija, when the Court found itself between a rock and a hard place. Not finding a violation would result in unprincipled and contradictory case law, thus undermining its legitimacy, yet finding a violation would in all likelihood result in yet another unimplemented judgment, with equally detrimental consequences. Time will show whether the Court’s strategy in using Art. 46 has paid off. The stakes could not be higher: what happens next will not only shape the legitimacy of the ECtHR, but also the future of a country.
A more detailed discussion of the Bosnian voting cases and an analysis of the impact of the ECtHR’s jurisprudence on peacebuilding efforts in post-violence societies, are found in Nasia Hadjigeorgiou, Protecting Human Rights and Building Peace in Post-Violence Societies (Hart Publishing, 2020). More information about the book, including free sample chapters, is found here.