Article 1 of Additional Protocol No. 12 to the ECHR – General prohibition of discrimination

(1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

(2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.

Additional Protocol 12 was signed by Bosnia and Herzegovina on 24 April 2002, was ratified on 29 July 2003 and entered into force on 1 April 2005.

Additional Protocol No. 12 to the ECHR provides for the general prohibition of discrimination and, thereby, its purpose is to supplement Article 14 of the ECHR, which prohibits discrimination against an individual or a group only in the enjoyment of any right and/or freedom guaranteed by the ECHR itself (with the exception of Article 5, Additional Protocol No. 7 to the ECHR, which concerns equality between spouses). When it comes to discrimination, the scope of the protection afforded by the ECHR has been extensively widened in this way.

The guarantees afforded by Additional Protocol No. 12 to the ECHR in the case-law of the Constitutional Court concern the abstract review proceedings instituted by Mr. Sulejman Tihić, Chair of Presidency of Bosnia and Herzegovina, in which he challenged the constitutionality of Article 8.1, paragraphs 1 and 2 of the Election Law of Bosnia and Herzegovina.²⁰⁷⁸ According to Mr. Sulejman Tihić, there is a violation of the general prohibition of discrimination given that Serbs in the Federation of Bosnia and Herzegovina and Bosniaks and Croats in the Republika Srpska and the so-called Others in Bosnia and Herzegovina cannot run for the Presidency of Bosnia and Herzegovina.²⁰⁷⁹ However, the Constitutional Court of Bosnia and Herzegovina established that the challenged provisions are a legal replica of the provisions of Article V of the Constitution of Bosnia and Herzegovina. Therefore, the request was directed towards the provisions of Article V of the Constitution of Bosnia and Herzegovina. However, the Constitutional Court of Bosnia and Herzegovina is bound to “uphold the Constitution of Bosnia and Herzegovina” and the provisions of the ECHR are not placed on a higher level in the normative hierarchy than the other provisions of the Constitution of Bosnia and Herzegovina. Consequently, the Constitutional Court of Bosnia and Herzegovina could not examine the challenged provision on the basis of the Constitution of Bosnia and Herzegovina itself.²⁰⁸⁰

In her Separate Opinion opposed to the opinion of the majority, Judge Grewe holds that the request is admissible and that Article 1 of Additional Protocol No. 12 to the ECHR is applicable. When it comes to the merits of the case, the provisions of Article 8.1, paragraphs 1 and 2 of the Election Law of Bosnia and Herzegovina fall within the protection afforded by Article 1 of Additional Protocol No. 12 to the ECHR and they come into collision with the general prohibition of discrimination, which is one of the fundamental principles and objectives of the Dayton Peace Agreement. However, viewed from the basic objectives of the Dayton Peace Agreement – the establishment of peace and stability and the avoidance of further casualties – unequal treatment is legitimate and, per se, justified.²⁰⁸¹ Nevertheless, 12 years after the Dayton Peace Agreement, this argument raises doubts, particularly taking into account that Bosnia and Herzegovina, in the meantime, has become a member of the Council of Europe.

Thus, Bosnia and Herzegovina has undertaken an obligation to comply with the principles applicable within the Council of Europe, irrespective of its obligation to comply with the principles arising from the constitutional order under Article II.2 of the BiH Constitution. Anyway, it may be noticed based on its population, composition and history that, without difficulties, Bosnia and Herzegovina cannot be constituted as a civil state. Accordingly, at the initial stage, it was fully justified to guarantee not only the civil rights of an individual but also the collective rights. Nevertheless, there is no proportionality in cases where the collective rights in a consensual democracy make it impossible for a group of citizens to take part in the political process, by denying their passive right to stand as candidates in elections.