European Court: Landmark Ruling on Racial and Religious Exclusion

The ruling today by the European Court of Human Rights, that the exclusion of Jews and Roma from Bosnia's highest state offices is unlawful discrimination, is a major step toward ending racial and religious exclusion in Europe, the Benjamin N. Cardozo School of Law and Human Rights Watch said today. Bosnia, along with the US and European states that continue to play a critical role in the country, should move swiftly to remove all discriminatory provisions from the country's constitution.

"The court's ruling is a major step forward in Europe's struggle against discrimination and ethnic conflict," said Sheri P. Rosenberg, co-counsel for the successful applicant Jakob Finci and a professor and director of the Human Rights Clinic at the Benjamin N. Cardozo School of Law. "This decision affirms that ethnic domination should have no role in a democracy."

The court found, by 14 votes to 3 (16 votes to 1 with respect to the presidency), that the exclusion of Jews and Roma could not be justified. It stated that the "authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment."

"The European Court has made it clear that race-based exclusion from political office, such as that suffered by Jews and Roma in Bosnia, has no place in Europe," said Clive Baldwin, senior legal advisor at Human Rights Watch, who was co-counsel for Finci from his previous employment with Minority Rights Group International. "The US, EU and the other states who still play a major role in Bosnia, should ensure the ruling is put into immediate effect by backing a change in the constitution."

The ruling today was issued by the Grand Chamber of the Court in the case of Sejdic & Finci v. Bosnia and Herzegovina, and concerned the exclusion from the Bosnian presidency and the upper house of parliament of a Bosnian Jew and a Bosnian Roma. The Bosnian Constitution, drafted by negotiators during peace talks in Dayton, Ohio in 1995, restricts the highest offices of state - the upper house of parliament and the presidency - to members of Bosnia's three main ethnic and religious groups - the Serbs, Croats and Bosniaks (Bosnian Muslims).

Members of smaller groups (such as the Jewish and Roma communities), those from ethnically mixed backgrounds and those who do not wish to declare themselves members of the three main groups are banned from running for office. Despite the extensive involvement of the international community, in particular the US and the European Union, in the governing of Bosnia since 1995, these discriminatory provisions in the constitution have never been amended.

This ruling is the first under the recent Protocol 12 to the European Convention on Human Rights, which prohibits discrimination in all rights "set forth by law," a much wider scope than previously existed under the convention.

Jakob Finci, the successful applicant, was born in a transit camp during World War II after his parents, Bosnian Jews, had been deported from the Bosnian capital, Sarajevo. Returning to Bosnia after the war, he has had a distinguished career in public life and is now Bosnian ambassador to Switzerland. But his ethnicity and religion prevented him from the possibility of seeking election to the highest offices of state.

"I am delighted that the European Court has recognized the wrong that was done in the Constitution 14 years ago," Finci said. "The Bosnian politicians need to right the wrongs in the Constitution quickly."

Bosnia's next presidential and parliamentary elections are due in October 2010.Constitutional reform has been under discussion in Bosnia since 2005 but so far has not produced any change.

"This landmark ruling clearly establishes that there is no scope for second-class citizenship in Europe," said Cynthia Morel, who also served as legal counsel in the case. "The court's finding will play an important role in strengthening Bosnia's young democracy." The case was supported throughout by Minority Rights Group International and the Human Rights and Genocide Clinic at the Benjamin N. Cardozo School of Law.