CASE OF PILAV v. BOSNIA AND HERZEGOVINA
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary
7. The applicant was born in 1964 and lives in Srebrenica, a town in the Republika Srpska (one of the two constituent Entities of Bosnia and Herzegovina). 8. The applicant declares himself as Bosniac (one of the country’s “constituent peoples”). He actively participates in the social and political life of the country. The applicant is a member of the Party for Bosnia and Herzegovina (Stranka za BiH; “the BH Party”) and a founding member of the Srebrenica Intellectuals’ Club (Klub Intelektualaca Srebrenice). 9. He has held several elected and appointed political positions in the Republika Srpska. At the time of lodging his application to the Court, the applicant was a member of the National Assembly of the Republika Srpska. 10. In 2006, as a candidate of the BH Party, the applicant submitted his candidacy for the 2006 elections to the Presidency of Bosnia and Herzegovina. 11. On 24 July 2006 the Central Election Commission of Bosnia and Herzegovina (“Centralna izborna Komisija Bosne i Hercegovine”; “the CEC”) rejected his candidacy. It explained that the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering that he declared affiliation with Bosniacs. Pursuant to Article V of the Constitution and Article 8.1 § 2 of the Election Act 2001 the presidential candidate from that Entity must be a Serb. 12. On 1 August 2006 the CEC rejected the applicant’s request for the reconsideration of that decision. 13. On 10 August 2006 the Court of Bosnia and Herzegovina rejected the applicant’s further appeal. It held that the applicant’s candidacy was in contravention of the Constitution and the Election Act 2001. 14. On 20 September 2006 the BH Party and the applicant lodged a constitutional appeal relying on Article 1 of Protocol No. 12 to the Convention. On 29 September 2006 the Constitutional Court of Bosnia and Herzegovina held that there had been no violation of that provision (decision no. AP 2678/06). The relevant part of the majority opinion reads as follows (the translation has been provided by the Constitutional Court): “...Therefore, the provision of Article 8 of the Election Law of Bosnia and Herzegovina, including Article V of the Constitution of Bosnia and Herzegovina, should be viewed in the light of the discretionary right of the State to impose certain restrictions when it comes to the exercise of individual rights. The said restrictions are justified by the specific nature of the internal order of Bosnia and Herzegovina that was agreed upon by Dayton Agreement and whose ultimate goal was the establishment of peace and dialogue between the opposing parties given that the said provision was intentionally incorporated into the Constitution so that the members of the Presidency come from amongst Bosniaks, Croats and Serbs. There is no dispute that the provision of Article V of the Constitution of Bosnia and Herzegovina, as well as the provision of Article 8 of the Election Act 2001, have a restrictive character in that they restrict the rights of citizens, namely the candidacy of Bosniacs and Croats from the territory of the Republika Srpska and the Serbs from the territory of the Federation of Bosnia and Herzegovina to stand for election as members of the Presidency of Bosnia and Herzegovina. However, the purpose of those provisions is to strengthen the position of the constituent peoples in order to ensure that the Presidency is composed of the representatives from these three constituent peoples. Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed ... is justified at this moment since there is a reasonable justification for such reasoning. Therefore, given the current situation in Bosnia and Herzegovina and specific nature of its constitutional order as well as the current constitutional and statutory arrangements, the challenged decisions of the Court of Bosnia and Herzegovina and the Central Election Commission did not violate the appellants’ rights under Article 1 of Protocol No. 12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the above-mentioned decisions are not arbitrary and are based on law. It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportionate to the objectives of the general community in terms of preservation of the established peace, continuation of dialogue, and consequently the creation of conditions for amending the above-mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Act 2001.” The relevant part of the concurring opinion of Judge Feldman reads as follows: “I agree that the special circumstances in which the Dayton Agreement was drafted and the needs of the time are capable of providing a rational and objective justification for treatment which would otherwise be discriminatory...Like Judge Grewe in her separate dissenting opinions....I regard the justification as being temporary rather than permanent, but I respectfully differ from Judge Grewe in thinking that 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 State under the Dayton Agreement and the Constitution of Bosnia and Herzegovina. However, I have another reason for joining the majority of the Constitutional Court in this case. Until the time (if it ever arrives) when Article V of the Constitution of Bosnia and Herzegovina is amended to remove the differential treatment of potential candidates for the Presidency, it seems to me that Article V leaves the drafters of the Election Law, the Central Election Commission and the courts no choice. It is not constitutionally permissible for a Law or the interpretation or implementation of a Law to be directly incompatible with the express and unambiguous requirements of Article V of the Constitution. Had the appellants succeeded in their appeal, it would have left Article V of the Constitution with no effect whatever. It would have been otiose, reduced to empty words. In my view, the Constitutional Court, required by Article VI of the Constitution to ‘uphold this Constitution’, cannot properly make a decision which makes an important part of the Constitution wholly ineffective. I accept that there different parts of the Constitution appear to have conflicting values and objectives, but constitutions are never entirely coherent. They are always shaped by, and are a compromise between, conflicting values and objectives. The task of the Constitutional Court under Article VI is to give effect to the Constitution, with all its inconsistencies, and make it as effective as possible in all the circumstances. For this reason, I would have dismissed this appeal as ill-founded even had I disagreed with the conclusion of the majority of the Constitutional Court that there is an objective and rational justification for the difference of treatment. Whether justified or not, the difference is required by Article V of the Constitution of Bosnia and Herzegovina. An international tribunal such as the European Court of Human Rights might perhaps decide that the constitutional arrangements for electing members of the Presidency violate rights under the European Convention (and nothing I write here should be taken to lend support to that suggestion under present conditions). Such a tribunal has no duty to uphold the Constitution. The Constitutional Court has an express constitutional obligation to uphold the Constitution, and in my opinion has no power to set aside parts of it, or make them ineffective, by relying on rights arising in an international instrument in preference to the express and unambiguous terms of the Constitution itself.” The relevant part of the dissenting opinion of Judge Grewe, joined by Judge Palavrić, reads as follows: “...I respectfully differ from the conclusion that there is no violation of the appellant’s rights guaranteed by the European Convention, its Protocols and Additional Human Rights Agreements because of an ‘objective and reasonable justification for differential treatment’. ...I consider the exclusion of the candidate Mr. Ilijaz Pilav on the Party’s candidate list for the Presidency of Bosnia and Herzegovina inconsistent with Article 1 of Protocol No. 12 and with Article 25 of the International Covenant on Civil and Political Rights which guarantees equal right to stand for election and to be elected without unreasonable restrictions. Contrary to the statements of the majority (§ 22), it seems to me that the current situation in Bosnia and Herzegovina does not justify at this moment the differential treatment of the appellant’s candidacy in relation to the candidacy of other candidates who are the Serbs and are directly elected from the territory of the Republika Srpska, nor it serves a legitimate aim, such as preservation of peace, continuation of dialogue or creation of conditions for amending the provisions of the Constitution of BiH and Election Law. Although I think like judge Feldman in his separate concurring opinion under this decision that the State of BiH has not yet completed its transition, that it is still in a special situation requiring specific measures, I however consider that the Dayton Agreement architecture is evolving and has to adapt to the different stages of evolution in BiH. The constitutional specificity of BiH consists of the multi-ethnic character of State and public institutions. The multi-ethnicity established by the Dayton Agreement has been precised by the Constitutional Court in case U 5/98 (Official Gazette of BiH, No. 36/00), stressing the equality of all constituent peoples in both entities and excluding in consequence the minority status of any constituent people in any entity. The coherence of this decision implies a multi-ethnic composition of the Presidency without territorial interference since the three constituent peoples are precisely equal in the whole State territory of BiH...It is the particular combination of ethnic and territorial structures which leads to unjustified discriminations since the territorial interference in presidential elections result to an ethnic separation materialized by the exclusion of the right to stand for election for all Serbs living in the Federation and for all Croats and Bosniacs living in Republika Srpska. This combination is inconsistent with the Dayton Agreement’s goal of a multi-ethnic State and with the principle of equality of constituent peoples in both entities which only justifies that the Serbs living in Federation and that the Bosniacs and the Croats living in Republika Srpska do not benefit of the status of a minority. Therefore the only legitimate aim appropriated in the current situation in BiH consists of excluding the territorial criterion in presidential elections. Only such a solution could be a reasonable justification of differential treatment and would be consistent with the requirements of Article 1 of Protocol No. 12 that any right set forth by law shall be secured without discrimination on any ground and of Article 25 of the International Covenant on Civil and Political Rights. In other terms, the differential treatment challenged by the appeal is not justified in an objective or in a proportionate manner. I also differ from the opinion expressed by judge Feldman in his point 4. Indeed, the European Convention and its Additional Protocols have at least the same rank as the Constitution of BiH. The Constitutional Court stated that the Constitution of Bosnia and Herzegovina was adopted as the Annex 4 to the Peace Agreement. It follows that there cannot be a conflict and possibility of dispute between that Agreement and the Constitution of BiH which form a legal unity. This implies that the Constitutional Court grants the same importance to the Peace Agreement and its annexes and thus that in case of conflict of norms, the case may only be resolved through a method of systematic interpretation. Furthermore the provisions of Articles II.2, II.3 and X.2 of Constitution place the compliance with the human rights and the European Convention among the basic pillars of the constitutional order in Bosnia and Herzegovina which have priority over any other law and cannot be restricted even by a constitutional revision. The Constitutional Court in its role of upholding the Constitution has to take account of all these elements as well as of legal evolutions in order to guarantee concrete and effective rights. Therefore Article V.1 has to be read in light of Articles II and X of the Constitution and of Article 1 of Protocol No. 12. The Constitutional Court cannot, of course, replace or modify the present Constitution but it can request the Parliament to harmonize the text with the requirements of BiH’s international obligations.” 15. On 5 July 2010 the applicant again submitted his candidacy to the CEC. On 29 July 2010 it was rejected for the same reasons as before.