pilav briefing paper

APPEAL OF ILIJAZ PILAV

Briefing Paper

January 2012

Confidential

Confidential Appeal of Ilijaz Pilav Briefing Paper, January 2012

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Facts and Procedural Posture 3

Central Election Commission 3

Court of Bosnia and Herzegovina 4

Appeal to the Constitutional Court of BiH 4

Relationship of the European Convention to the Constitution 5

Discrimination and Denial of Right to Seek Office 5

Right to be Free from Discrimination under the Law

(European Convention Art. 1, Prot. 12) and Right to Stand for

Election (ICCPR Art. 25) 6

Right to Non-Discrimination Based on National Minority

Status (FCNM Art. 4) 7

The Impact of the Sejdic-Finci Decision 7

The Implications of Sejdic-Finci for Pilav v. Bosnia and Herzegovina 8

Conclusion 9


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BRIEFING PAPER: APPEAL OF ILIJAZ PILAV

Statement of Purpose

The purpose of this briefing paper is to provide an overview of the decision

of the Constitutional Court of Bosnia and Herzegovina (BiH) in the Appeal of Ilijaz

Pilav, and the potential implications of the same case now pending at the European

Court of Human Rights.

Introduction

The Appeal of Ilijaz Pilav is a BiH Constitutional Court case concerning the

denial of a political party‟s request to list a Bosniak from the Republika Srpska

(RS) as a candidate for the RS seat of the Presidency of BiH (Presidency). This

case is significant in that it was the first time BiH‟s Constitutional Court decided a

challenge to the Election Law of BiH on the merits, as well as the first time the

Court acknowledged the significance of the European Convention on Human

Rights (European Convention) to BiH law.

In the Appeal, Pilav alleged three violations of his rights under BiH and

international law, including violations of the right to enjoy human rights free from

discrimination based on national or ethnic origin as provided by Article 1 of

Protocol 12 of the European Convention, the right to stand for election as provided

by Article 25 of the International Convention on Civil and Political Rights

(ICCPR), and the right to equality before the law for national minorities as

provided by Article 4 of the Framework Convention for the Protection of National

Minorities (FCNM).1 In a 7-2 decision, the Constitutional Court dismissed Pilav‟s

claims, upholding the decisions of the Central Election Commission and the Court

of BiH on the basis that restrictions to Pilav‟s rights were reasonable and within

the state‟s discretion.

Pilav subsequently appealed the Constitutional Court‟s decision to the

European Court of Human Rights (ECtHR), where it is currently pending. In the

time following the Constitutional Court‟s decision, the ECtHR issued its decision

on the case of Sejdic and Finci v. Bosnia and Herzegovina, in which it found that

BiH‟s Election Law violated the rights of two representatives of BiH‟s minority

communities under Art. 1 of Protocol 12 of the European Convention by

1 Appeal of Stranka za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, case No. AP-

2678/06, para. 7, (2006), available at http://www.ccbh.ba/eng/odluke/povuci_html.php?pid=67930.


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precluding them from running for the Presidency. The ECtHR found that the

circumstances justifying differential treatment of minority communities no longer

existed, rendering such treatment discriminatory. This decision is likely to impact

the pending Pilav case, and may significantly influence how the ECtHR considers

the issue.

Facts and Procedural Posture

Central Election Commission

The Case of Ilijaz Pilav began before BiH‟s Central Election Commission

(CEC). The Party for Bosnia and Herzegovina (Party) applied for approval of

Ilijaz Pilav, a self-declared Bosniak, as a candidate for the Presidency for the seat

allocated to the RS. The CEC rejected the Party‟s request, citing Article 8.1,

paragraph 2 of the Election Law of BiH (Election Law), which provides that only a

Serb may be elected to the Presidency from the RS.2 The CEC reasoned that,

because Pilav declared himself a Bosniak, he could not be elected from the

territory of RS.3

Pilav requested that the CEC review its decision.4 On 1 August 2006, the

CEC rejected his request. The CEC maintained that Pilav‟s application to run for

the Presidency conflicted with the Election Law. The CEC also reasoned that

Pilav‟s candidacy would violate Article V of the Constitution of Bosnia and

Herzegovina, which specifies that the Presidency should be comprised of one

Bosniak and one Croat from the Federation of Bosnia and Herzegovina (FBiH) and

one Serb from the RS.5 The CEC maintained that Bosniaks and Croats were

ineligible to run for the Presidency in the RS, and Serbs were ineligible to run for

the Presidency in the FBiH.


2678/06, para. 4, (2006). Election Law of Bosnia and Herzegovina, art. 8.1 (2006), available at www.rai-

see.org/bosnia-and-herzegovina/index.php?option=com_docman&task=doc_download&gid=47&Itemid=62. 3 Appeal of Stranka za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, case No. AP-

2678/06, para. 4, (2006). 4 Appeal of Stranka za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, case No. AP-


2678/06, para. 5, (2006). BOSNIA AND HERZEGOVINA CONST. art. 5 (1995), available at

http://www.ccbh.ba/eng/article.php?pid=833&kat=518&pkat=500.


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Court of Bosnia and Herzegovina

Pilav appealed the issue to the Court of BiH, arguing that the CEC‟s

decisions violated his rights under Article 1 of Protocol 12 of the European

Convention.6 Article 1 guarantees the right to enjoy one‟s rights under the law

without discrimination on the grounds of ethnic or national origin.7

On 10 August 2006, the Court of BiH dismissed Pilav‟s appeal, upholding

the CEC‟s decisions.8 The Court of BiH found that the Election CEC had correctly

applied the Election Law and Constitution of BiH in denying Pilav‟s request for

certification. In addition, the Court of BiH held that Pilav had not been “deprived

of the rights stipulated under the law,” and therefore no discrimination on the basis

of ethnic or national origin had occurred.9 In effect, the Court of BiH held that

Pilav did not have a right under the law of BiH to run for the Presidency in the RS.

Appeal to the Constitutional Court of BiH

On 20 September 2006, Pilav appealed the Court of BiH‟s decision to the

Constitutional Court.10

Pilav moved for the Constitutional Court to overturn the

ruling of the Court of BiH and order that he be listed for election to the position of

RS member of the Presidency.11

The key issue on appeal was whether Pilav‟s

constitutional rights were violated by the CEC‟s denial of his certification to run

for the RS seat of the Presidency based on his self-identification as a Bosniak.

Pilav alleged that the Election Law violated the BiH Constitution by violating his

rights under the European Convention, the ICCPR, and the FCNM by

discriminating against him on the basis of his national/ethnic origin and denying

him equal exercise of his right to run for office.12

Relationship of the European Convention to the Constitution


2678/06, para. 6, (2006), available at http://www.ccbh.ba/eng/odluke/povuci_html.php?pid=67930. 7 European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 12, art. 1

(Council of Europe, 1950) available at http://conventions.coe.int/treaty/en/treaties/html/005.htm. 8 Appeal of Stranka za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, case No. AP-


2678/06, para. 6, (2006). 10

Under Article 6 of the BiH Constitution, the Constitutional Court has appellate jurisdiction over issues of

constitutional law arising out of a judgment from any court in the state. BOSNIA AND HERZEGOVINA CONST. art. 6

(1995) available at http://www.servat.unibe.ch/icl/bk00000_.html. 11

Appeal of Stranka za Bosnu i Hercegovinu (Party for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, case No. AP-

2678/06, para. 1, (2006), available at http://www.ccbh.ba/eng/odluke/povuci_html.php?pid=67930. 12


2678/06, para. 7, (2006).


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To support his claim, Pilav relied on Article II (2) of the BiH Constitution,

which integrates the European Convention and its Protocols into the Constitution.13

He argued that the European Convention supersedes domestic law and is, at a

minimum, equal to other provisions of the Constitution, including Article V.14

While the Constitutional Court acknowledged Article II (2) of the BiH

Constitution, it did not address the issue of the status of the European Convention

in relation to the Constitution and domestic law.15

This omission may be viewed

as an implicit acceptance of the European Convention‟s significance within the

Constitution, however, as the Court not only considered the merits of Pilav‟s claim,

but also relied heavily on the case law of the ECtHR to do so.16

Discrimination and Denial of Right to Seek Office

Pilav argued that the rejection of his application violated three rights afforded

to him under the BiH Constitution and international law. First, the CEC‟s

decisions violated his right to enjoy any right without discrimination based on

national or ethnic origin under Article 1 of Protocol No. 12 to the European

Convention.17

Second, Pilav argued that he was denied his equal right to stand for

election under Article 25 of the ICCPR.18

Third, as a Bosniak in the RS, Pilav

argued that his right to equality under the law under Article 4 of the FCNM had

been violated.19

The Constitutional Court rejected these arguments, finding that

the state had the discretion to place restrictions on Pilav‟s candidacy and that these

restrictions were not unreasonable. The Court also found that Pilav did not qualify

as a minority under the FCNM and could not claim its protections.

13


2678/06, para. 7, (2006); see BOSNIA AND HERZEGOVINA CONST. art. 2(2) (1995), available at

http://www.ccbh.ba/eng/article.php?pid=833&kat=518&pkat=500. 14


2678/06, para. 7, (2006). 15


2678/06, para. 7, (2006). 16

This acceptance was reaffirmed in the ECtHR‟s decision on case of Sejdic and Finci v. Bosnia and Herzegovina,

para. 14, 27996/06 and 34836/06, (2009), available at http://eudo-

citizenship.eu/caselawDB/docs/ECHR%20Sejdic%20and%20Finci%20v.%20Bosnia.pdf. 17

European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 12, art. 1

(Council of Europe, 1950) available at http://conventions.coe.int/treaty/en/treaties/html/005.htm. 18

International Convention on Civil and Political Rights, art. 25 (1966), available at

http://www2.ohchr.org/english/law/ccpr.htm#art25. 19

Framework Convention for the Protection of National Minorities, art. 4 (Council of Europe, 1996), available at

http://conventions.coe.int/Treaty/en/Treaties/html/157.htm.


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Right to be Free from Discrimination under the Law (European Convention

Art. 1, Prot. 12) and Right to Stand for Election (ICCPR Art. 25)

Pilav argued that the CEC‟s refusal to certify him as a candidate violated his

rights under Article 1 of Protocol No. 12 of European Convention and Article 25 of

the ICCPR. Article 1 of Protocol No. 12 of the European Convention protects the

right to be free from discrimination on the basis of national or ethnic origin.20

Article 25 of the ICCPR provides that “[e]very citizen shall have the right and the

opportunity, . . . without unreasonable restrictions . . . [t]o vote and be elected at

genuine periodic elections . . . .”21

Pilav claimed that prohibiting him to stand for

election while allowing Serb candidates to run was discriminatory.

In considering this argument, the Constitutional Court looked to the case law

of the ECtHR. The Court recognized that, under ECtHR case law, rights such as

the right to vote and stand for election are not absolute, and states are typically

granted a margin of appreciation in protecting them.22

In determining the

acceptable margin of appreciation, the ECtHR looks for an objective and

reasonable justification for the unequal treatment, a legitimate aim of the

challenged measure, and a reasonable relationship of proportionality between

means and goals.23

A difference in treatment is not necessarily discriminatory,

provided the state specifies a reasonable and objective basis for the difference.24

Therefore, a state must balance protecting the interests of the community and

respecting fundamental rights.25

The scope of a state‟s margin of appreciation will

vary according to the circumstances, the subject matter, and the state‟s diverse

historical and political background.

The Constitutional Court held that the CEC‟s decisions violated neither

Article 1 of Protocol No. 12 of the European Convention nor Article 25 of the

ICCPR. The Constitutional Court acknowledged that Article V of the Constitution

of BiH and Article 8 of BiH‟s election law effectively restricted Bosniak and Croat

citizens in the RS from running for the Presidency. However, the Constitutional

Court held that the restrictions did not violate the European Convention or the

20

European Convention for the Protection of Human Rights and Fundamental Freedoms, Protocol 12, art. 1

(Council of Europe, 1950) available at http://conventions.coe.int/treaty/en/treaties/html/005.htm. 21

International Convention on Civil and Political Rights, art. 25 (1966), available at

http://www2.ohchr.org/english/law/ccpr.htm#art25. The distinctions provided in Article 2 include race, colour, sex,

language, religion, political or other opinion, national or social origin, property, birth or other status. International

Convention on Civil and Political Rights, art. 2 (1966). 22


2678/06, para. 20, (2006). 23

The Margin of Appreciation Introduction, THE COUNCIL OF EUROPE, (last accessed Dec. 19, 2011), available at

http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/ECHR/Paper2_en.asp#P287_40999. 24

The Margin of Appreciation Introduction, THE COUNCIL OF EUROPE, (last accessed Dec. 19, 2011). 25

The Margin of Appreciation Introduction, THE COUNCIL OF EUROPE, (last accessed Dec. 19, 2011).


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ICCPR because such restrictions were legitimate curtailments of individual

rights.26

The appellant was not rejected exclusively on his national/ethnic origin

but rather on the basis of reasonably justified laws. In making its determination,

the Constitutional Court relied on BiH‟s unique historical circumstances. The

Court reasoned that the election laws applied the Dayton Agreement, which

ensures peace, stability, and dialogue in BiH.27

As a result, the restrictions on the

appellant‟s rights were reasonably justified in the interest of maintaining peace and

stability in BiH.28

Right to Non-Discrimination Based on National Minority Status (FCNM

Art. 4)

Pilav argued that the CEC‟s decisions were inconsistent with Article 4 of the

FCNM. Article 4 of the FCNM guarantees national minorities equality under the

law.29

Under Pilav‟s reasoning, barring a Bosniak from the RS from running for

the Presidency is a deprivation of his right to equality under Article 4 of the

FCNM.30

The Constitutional Court rejected this argument outright, holding that

Bosniaks lack minority status under the framework of the Dayton Agreement.31

In

the Court‟s analysis, constituent peoples hold the rights given to them in the

Constitution, and „others‟ are the only groups that can claim status as a minority

and protection under the FCNM. As a result, Pilav‟s right to stand for election was

not violated because he could stand for election in the Federation.32

The Sejdic-Finci Decision

Following the decision of the Constitutional Court, Pilav filed an appeal

with the ECtHR, which is now pending before the Court.33

In the interim, the

26


2678/06, paras. 21-22, (2006). 27


2678/06, paras. 21-22, (2006). 28


2678/06, paras. 21-22, (2006). 29

Framework Convention for the Protection of National Minorities, art. 4 (Council of Europe, 1996), available at

http://conventions.coe.int/Treaty/en/Treaties/html/157.htm. 30


2678/06, para. 7, (2006). 31


2678/06, para. 23, (2006). 32


2678/06, para. 23, (2006). 33

Saida Mustajbegovic, Constitution Taken to Court, BALKAN INSIGHT, Dec. 20, 2007, available at

http://www.internal-

displacement.org/8025708F004CE90B/(httpDocuments)/BF037A88F356A4D2C125741E0051A98E/$file/BalkanIn

sight_com+-+Constitution+Taken+to+Court.htm.


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ECtHR decided the case of Sejdic and Finci v. Bosnia and Herzegovina (Sejdic-

Finci). Sejdic-Finci challenged BiH‟s Election Law on the same basis as the Pilav

case, and involved a similar set of facts. In Sejdic-Finci, however, the ECtHR held

that the BiH Election Law discriminated against ethnic minorities.

In Sejdic-Finci, the ECtHR considered a challenge to BiH‟s Constitution and

Election Law brought by representatives of BiH‟s “others.” Sejdic, a member of

the Roma community, and Finci, a member of the Jewish community, were

precluded from running for the Presidency in BiH due to their minority status, and

sought relief from the ECtHR for a violation of their rights under Article 1 of

Protocol 12 of the European Convention.34

In determining the appropriate standard

on which to address the issue, the ECtHR noted that “where a difference in

treatment is based on race or ethnicity, the notion of objective and reasonable

justification must be interpreted as strictly as possible.”35

The Court recognized

that when the BiH Constitution and Election Law were promulgated, the difference

in treatment of others served a reasonable and legitimate purpose – ending a

conflict marked by significant brutality, genocide, and ethnic cleansing.36

However, since the Dayton Agreement was signed, BiH had undergone significant

positive change, including the formation of a unified armed force, membership in

NATO‟s Partnership for Peace program and the Council of Europe, and the

ratification of a Stabilization and Association Agreement.37

Based on this

progress, the ECtHR concluded that the circumstances no longer met the strict

scrutiny required to justify the difference in treatment of minority communities in

being elected to the Presidency.38

The ECtHR called upon BiH to reform its

constitution and election law to comply with the findings of this decision.

The Implications of Sejdic-Finci for Pilav v. Bosnia and Herzegovina

The Sejdic-Finci decision will likely impact the ECtHR‟s reasoning in

considering the case of Pilav v. Bosnia and Herzegovina. Although the facts are

similar, a BiH citizen precluded from running for the Presidency based on his

ethnicity, there is a fundamental distinction between them. While Sejdic and Finci

were precluded from running throughout BiH, Pilav is only precluded from

running in the RS, and could stand as a candidate for the Presidency from the

FBiH. As a result, the ECtHR will address a slightly different issue: whether

34

Sejdic and Finci v. Bosnia and Herzegovina, paras. 52-56, 27996/06 and 34836/06 (2009), available at

http://eudo-citizenship.eu/caselawDB/docs/ECHR%20Sejdic%20and%20Finci%20v.%20Bosnia.pdf. 35

Sejdic and Finci v. Bosnia and Herzegovina, para. 44, 27996/06 and 34836/06 (2009). 36



Sejdic and Finci v. Bosnia and Herzegovina, para. 50, 27996/06 and 34836/06 (2009).


9

precluding an Bosniak residing in the RS from running for the Presidency as a

candidate for the RS seat denies him his right to equal enjoyment of rights under

Art. 1 of Protocol 12 of the European Convention.

The Sejdic-Finci decision clarified that the standard of strict scrutiny should

be applied to considerations of differential treatment based on ethnicity. As a

result, BiH will bear the burden of justifying differential treatment of a Bosniak

seeking to run for the RS seat in the Presidency. As noted in Sejdic-Finci, the

circumstances necessitating differential treatment within the electoral system no

longer exist. In the Sejdic-Finci decision, these changed circumstances led the

Court to conclude that Sejdic and Finci could no longer be precluded from running

for the Presidency. Consequently, it is unlikely that the ECtHR would determine

that the circumstances justify differential treatment of a Bosniak seeking election

to the Presidency in the RS. However, the ECtHR may consider the argument that

Pilav‟s ability to run for the Presidency in the FBiH is sufficient to meet the

requirement that Pilav be able to fully exercise his right to enjoy his rights without

discrimination, thereby allowing the current differential standard to remain in

place.

A decision to amend BiH‟s Constitution and Election Law may eliminate the

need for the ECtHR to consider Pilav‟s claim. If the amendments made to the

Constitution to comply with the Sejdic-Finci decision permitted Pilav to stand for

election to the Presidency in the RS, the issue at the center of Pilav‟s claims would

not longer exist.

Conclusion

The Appeal of Ilijaz Pilav addressed the role of ethnicity in BiH‟s electoral

system. At the center of the Appeal is the level of discretion BiH has in restricting

the right of citizens to stand for elections based on their ethnic or national origin.

The courts in BiH found that the restrictions on Pilav‟s ability to stand for election

to the Presidency in the RS were reasonable in light of the need to maintain the

structures established by the Dayton Peace Accords. However, since the Appeal

decision was issued, the ECtHR issued the decision in the case of Sejdic and Finci

v. Bosnia and Herzegovina, in which the Court held that the necessity of

maintaining the Dayton structures was no longer a reasonable restriction on the

right of minority communities to stand for election to the Presidency. This

decision is likely to impact the Pilav case if heard by the ECtHR, as the Court will

likely apply the Sejdic-Finci standard to the issue, significantly decreasing the

strength of the argument for maintaining ethnic restrictions.