The United Nations created several documents and conventions on the question of differ-ent minorities.27 The Council of Europe created a framework of minority rights protec-tion.28 The EU also has special provisions for the protection of minorities which will be examined in the subchapter dealing with the EU enlargement issues.
26 heka 2010a, pp. 39-40.
27 Anikó Szalai: Anti-discrimination, Protection of Minorities and the Rights of Indigenous Peoples in the UN – Is this a Patchwork or a Fine Embroidery? Paper prepared for the 2014 Annual Meeting of the Aca-demic Council on the United Nations System, June 19-21, 2014, Kadir Has University, Istanbul, Panel 21:
Human Rights Perspectives and Challenges. Available online: https://acuns.org/wp-content/uploads/2013/01/
Anik%C3%B3-Szalai-Anti-discrimination-Protection-of-Minorities-and-the-Rights-of-Indigenous-Peoples-in-the-UN-%E2%80%93-Is-this-a-Patchwork-or-a-Fine-Embroidery.pdf , pp. 10-25.
28 Noémi nagy: A nemzeti kisebbségek nyelvi jogainak aktuális helyzete az Európa Tanács intézményei tevékenységének tükrében. [The Current Situation of the National Minorities in the light of the Actions of the European Council]. In: Pro Minoritate, pp. 48-49.
The definition of nationality itself raises a series of questions. The complexity and un-certainty of the possible understandings themselves should have a full scale of examina-tion.29 Nonetheless, some common characteristics can be agreed on: “(…) a group of per-sons in a State who: resides in the territory of a State and are citizens thereof; maintain long-standing firm and lasting ties with that State; display distinctive ethnic, cultural, religious or linguistic characteristics; are sufficiently representative, although smaller in number than the rest of the population of that State or of a region of that State; and are motivated by a concern to preserve together what constitutes their common identity.”30 If the constitutional definitions of the nation and the minorities are analyzed in the con-stitutions of the Western Balkans, the results will show differences. The different terms which are used in the constitutional texts can shed light on the differences of the ideas behind the documents. The constitutions of the Western Balkans use the following terms in question:
Albania, Croatia and Serbia use the term ‘national minority’. North Macedonia uses the expression ‘nationality’, while Kosovo chosen the phrase ‘community’. Slovenia has chosen the ‘national community’ and Montenegro uses two terms: ‘minority nations’ and
‘other minority national communities’.
The expressions nationality, national minority and minority in themselves can cause con-cern when defining the groups of citizens who are from a different nation then the ma-jority of the population in a state. The phrases used by the examined constitutions vary.
A striking difference could be seen in the language of the Bosnian constitution. The term
‘constituent peoples’ did not give opportunity to define majority and minority of eth-nic groups. Three nationalities have the same position, they are all part of the consti-tution-making nation: “Bosniacs, Croats and Serbs, as constituent peoples (along with Others)”.31 This definition caused some difficulty in the elections in relations with ex-pression ‘Others’.
The Sejdic-Finci case revealed the problematic side of this phrasing for the first time:
the other nationalities are left out. In the case, a Roma and a Jew citizen of Bosnia and Hercegovina appealed to the European Court of Human Rights as they could not stand for election to the House of Peoples and state presidency, because they were not members of the constituent peoples of Bosnia and Hercegovina. To shed light on the issue, one must understand the legal background of the case. The Bosnian constitution is extraor-dinary as it was adopted as part of international negotiations, annex to the Dayton Peace Agreement.32 The Government of Bosnia and Herzegovina was not above to use this as an argument in processes before the ECHR: “The Government submitted that Bosnia and
29 Melinda cSáSzár: Nemzet – jog – identitás A státustörvény végrehajtásának szociológiai vonatkozásai.
[Nation-Law-Identity The Sociological Aspects of the Enforcement of the Status Law]. PhD dolgozat, [Corvi-nus University of Budapest, Institute of Communication and Sociology.], 2009, pp. 25-35.
30 CDL-INF (1996) 4, Opinion on the interpretation of Article 11 of the Draft Protocol to the European Con-vention on Human Rights appended to Recommendation 1201 of the Parliamentary Assembly, §3 a.
31 Constitution of Bosnia and Hercegovina Preamble
32 The General Framework Agreement for Peace in Bosnia and Herzegovina Initialled in Dayton on 21 No-vember 1995 and signed in Paris on 14 December 1995
Herzegovina could not be held responsible for the contested constitutional provisions be-cause its Constitution was part of an international treaty, the Dayton Agreement”.33 The language of the constitution is English. Bosnia and Hercegovina consists of two Entities:
the Federation of Bosnia and Herzegovina and the Republika Srpska. The head of state position is divided between three members: “one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the ter-ritory of the Republika Srpska.”34 The federal parliament of Bosnia and Hercegovina is called Parliamentary Assembly. It consists of two houses, the House of Peoples and the House of Representatives.35
Special rules were made to define the sensitive relationship between the ‘constituent peo-ples’ to create a balance. Nonetheless, it created ambiguous results, as the other nation-alities were banned from the possibility to become a member of the House of Peoples or the state president on the grounds of their ethnicity. Both men had political carrier which could be a foundation for becoming a candidate to the position of a member of the House of Peoples or the state president. The applicants said that these provisions which made them ineligible to stand for election are discriminative. As the ECHR examined the case, they said: “When the impugned constitutional provisions were put in place a very fragile ceasefire was in effect on the ground. The provisions were designed to end a brutal con-flict marked by genocide and “ethnic cleansing”.”36
There were concerns that changing the system of the elections in Bosnia and Hercegovina may result in chaos. However, “the Opinions of the Venice Commission (see paragraph 22 above) clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities.
In this connection, it is noted that the possibility of alternative means achieving the same end is an important factor in this sphere”.37
The ECHR decided 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.”38
10 years after the decision of the ECHR, there were still no amendment of the constitu-tion to provide the possibility of standing for elecconstitu-tion to the House of Peoples of Bosnia or state president.39 Other cases were also decided by the ECHR with the same results.40
33 Case of Zornic v. Bosnia and Hercegovina (Application no. 3681/06) 34 Constitution of Bosnia and Hercegovina Article V.
35 Constitution of Bosnia and Hercegovina Article IV.
36 Case of Sejdic and Finci v. Bosnia and Hercegovina (Applications nos. 27996/06 and 34836/06) 45.
37 Case of Sejdic and Finci v. Bosnia and Hercegovina (Applications nos. 27996/06 and 34836/06) 48.
38 Case of Sejdic and Finci v. Bosnia and Hercegovina (Applications nos. 27996/06 and 34836/06) 50.
39 Cf.: https://www.coe.int/en/web/execution/-/sejdic-and-finci-after10-years-of-absence-of-progress-new-hopes-for-a-solution-for-the-2022-elections
40 Case of Zornic v. Bosnia and Hercegovina (Application no. 3681/06), Case of Pilav Bosnia and Hercego-vina (Application no. 41939/07)
In the case of Zornic v. Bosnia and Hercegovina, a former judge of the Constitutional Court applied to the ECHR as she did not declare affiliation with any of the constituent people, she declares her nationality as a “citizen of Bosnia and Hercegovina”. As she was not a member of the constitution people, she did not have the possibility of standing for election to the House of Peoples of Bosnia or state presidency.
The ECHR stated the following: “there are no objective criteria for oneʼs ethnic affili-ation (see paragraph 8 above). It depends solely on oneʼs own self-classificaffili-ation. There may be different reasons for not declaring affiliation with any particular group, such as for example intermarriage or mixed parenthood or simply that the applicant wished to declare herself as a citizen of Bosnia and Herzegovina.”41
The nationality is a sensitive issue, as the self-classification cannot be an obligation, es-pecially in case of losing a right in relation. As the Framework Convention for the Protec-tion of NaProtec-tional Minorities defined: “Every person belonging to a naProtec-tional minority shall have the right freely to choose to be treated or not to be treated as such and no disadvan-tage shall result from this choice or from the exercise of the rights which are connected to that choice.”42 Connected with the self-classification, the ECHR stated: “The applicant should not be prevented from standing for elections for the House of Peoples on account of her personal self-classification”.43
Another controversy was revealed when a Bosniac national wanted to be elected for the Presidency from the territory of the Republika Srpska. The existing legal rules excluded this possibility: “The applicant was faced with two options: to move to the Federation of Bosnia and Herzegovina thereby giving up the possibility to serve his community in the Republika Srpska, or to accept a status of second-class citizen in the Republika Srpska.”44 The ECHR examined the legal situation and stated that this part of the law is against the ECHR as well, as “the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering that he declared affiliation with Bosniacs”,45 which is discriminative.46
The elections of 2022 will be held according to the discriminative rules if there will not be a political will strong enough to change the rules of the elections,47 and the results of the last elections show the obstacles with the system.48
41 Case of Zornic v. Bosnia and Hercegovina (Application no. 3681/06) 31.
42 Framework Convention for the Protection of National Minorities Strasbourg, 1.II.1995 Article 3 1.
43 Case of Zornic v. Bosnia and Hercegovina (Application no. 3681/06) 31.
44 Case of Pilav Bosnia and Hercegovina (Application no. 41939/07) 28.
45 Case of Pilav Bosnia and Hercegovina (Application no. 41939/07) 11.
46 “Notwithstanding the differences with Sejdić and Finci, the Court considers that this exclusion is based on a combination of ethnic origin and place of residence, both serving grounds of distinction falling within the scope of Article 1 of Protocol No. 12 (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 70 and 71, ECHR 2010), and as such amounts to a discriminatory treatment in breach of Article 1 of Protocol No. 12.” Case of Pilav Bosnia and Hercegovina (Application no. 41939/07) 48.
47 Cf.: https://balkaninsight.com/2018/06/04/discrimination-in-bosnian-election-law-continues-06-01-2018/
48 László horváTh: Választások Bosznia-Hercegovinában – újabb elvesztegetett négy év előtt állunk?
[Elections in Bosnia and Herzegovina – Facing Four Lost Years Again?]. In: Parlamenti Szemle, 2019/1. pp.
80-86, 88-91, 94-97, 101-103.
The notion of nation and nationality could cause great debates and injustices if not used properly and justly. This is still a sensitive issue and the dealing requires kid’s gloves.
However, a certain degree of cautiousness cannot and should not downgrade the princi-ples of rule of law and democracy. As the Venice Commission stated: “In both Sejdić and Finci as well as in Zornić, the European Court of Human Rights was quite prepared to accept that there is a relatively wide degree of latitude in relation to the election of the second chamber; the problem was that the total disenfranchisement of certain persons was not required to effect a politically acceptable settlement.”49