B. House of Peoples (Article IV.1)

The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).

a. The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska.

b. Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb Delegates are present.

The House of Peoples has fifteen members, ten elected from the Federation and five elected from the Republika Srpska. The five from the Republika Srpska must all be Serbs and the ten delegates from the Federation must be divided equally between Croats and Bosniaks. The delegates from the Federation are selected by the House of Peoples of the Federation while the delegates from the Republika Srpska are selected by the Republika Srpska National Assembly. Nine delegates constitute a quorum as long as the nine includes three delegates from each constituent people.²⁷³¹ The House of Peoples has full legislative powers,²⁷³² although its primary purpose is to guard the ethnic interests of the three Constituent Peoples through use of the vital interest provision discussed below.

The Venice Commission²⁷³³ has identified several legal problems with the appointment and makeup of the House of Peoples.²⁷³⁴ Citizens of Bosnia and Herzegovina who are not Serbs, Croats, or Bosniaks have no right to stand as a candidate for election to the House of Peoples. Similarly, even Serbs, Croats and Bosniaks who live in the “wrong” entity are denied the right to stand as candidates. As a result, the corresponding rights of voters are also restricted because they can only vote for candidates of a specific ethnicity.

This restriction on voting is most severe in the Federation where the Croat and Bosniak delegates to the BiH House of Peoples are selected by the respective Croat and Bosniak caucuses within the Federation House of Peoples. Federation citizens of Serb ethnicity have no role to play in the selection of delegates to the BiH House of Peoples who are elected from the Federation. It is an indirect election based on ethnicity of the candidate and made by electors who themselves were indirectly elected based on their ethnicity. The Venice Commission has concluded that these discriminatory provisions are in conflict with Article 14 and Protocol 12 to the European Convention on Human Rights.

In 2006, two citizens of Bosnia and Herzegovina of Roma and Jewish ethnicities, Mr. Dervo Sejdić and Mr. Jakob Finci, brought applications before the ECtHR.²⁷³⁵ The applicants complained that, despite possessing experience comparable to the highest elected officials, the BiH Constitution prevents them from standing as candidates for the BiH Presidency and the House of Peoples of the BiH Parliamentary Assembly solely on the grounds of their ethnic origins. They invoked Article 3 (prohibition of inhuman and degrading treatment), Article 13 (right to an effective legal remedy) and Article 14 (prohibition of discrimination) of the ECHR, and Article 3 of Additional Protocol No. 1 to the ECHR (right to free elections) and Article 1 of Additional Protocol No. 12 to the ECHR (general prohibition of discrimination).

The case was taken over by the Grand Chamber of the ECtHR which held a hearing on 3 June 2009 on its admissibility and merits,²⁷³⁶ and it took a final decision on this issue on 22 December 2009. It was established that the provisions of the BiH Constitution relating to the House of Peoples of the BiH Parliamentary Assembly discriminate against the so-called Others within the meaning of Article 14 in conjunction with Article 3 of Additional Protocol No. 1 to the ECHR (paragraph 50). The Grand Chamber of the ECtHR concluded that, given the progress that the State has made since signing the Dayton Peace Agreement (paragraph 47), it is no longer justified to entirely deprive the members of the so-called Others of the right to be elected to this legislative house. There are no reasonable and justified reasons to support something like that. The ECtHR also concluded that the ECHR does not require complete abolition of the principle of parity power sharing and the introduction of the principle which would simply reflect the principle of “majority”, nor has the time come in Bosnia and Herzegovina for something like that. However, the ECtHR referred to the opinion of the Venice Commission, which offered a modality of retaining the principle of parity power sharing without excluding certain groups at the same time (paragraph 48). The ECtHR resorted to the same reasoning when it comes to the deprivation of the so-called Others of the right to be elected to the BiH Presidency, whereby the Court referred to the provision of Article 1 of Additional Protocol No. 12 to the ECHR (paragraph 56 in conjunction with paragraphs 47-49).