Pilav Briefing Paper

APPEAL OF I LI J AZ PI LAV
Briefing Paper

January 2012
Confidential
Confidential Appeal of I lijaz 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
2

BRIEFING PAPER: APPEAL OF I LI J AZ PI LAV

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 partys 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 BiHs 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 Pilavs
claims, upholding the decisions of the Central Election Commission and the Court
of BiH on the basis that restrictions to Pilavs rights were reasonable and within
the states discretion.

Pilav subsequently appealed the Constitutional Courts decision to the
European Court of Human Rights (ECtHR), where it is currently pending. In the
time following the Constitutional Courts decision, the ECtHR issued its decision
on the case of Sejdic and Finci v. Bosnia and Herzegovina, in which it found that
BiHs Election Law violated the rights of two representatives of BiHs 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.
3

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 BiHs 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 Partys 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 Pilavs application to run for
the Presidency conflicted with the Election Law. The CEC also reasoned that
Pilavs 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.

2
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
2678/06, para. 4, (2006).
4
2678/06, para. 5, (2006).
5
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.
4

Court of Bosnia and Herzegovina

Pilav appealed the issue to the Court of BiH, arguing that the CECs
decisions violated his rights under Article 1 of Protocol 12 of the European
Convention.
6
Article 1 guarantees the right to enjoy ones rights under the law
without discrimination on the grounds of ethnic or national origin.
7

On 10 August 2006, the Court of BiH dismissed Pilavs appeal, upholding
the CECs decisions.
8
The Court of BiH found that the Election CEC had correctly
applied the Election Law and Constitution of BiH in denying Pilavs 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 BiHs 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 Pilavs
constitutional rights were violated by the CECs 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

6
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
2678/06, para. 6, (2006).
9
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
12
2678/06, para. 7, (2006).
5

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 Conventions significance within the
Constitution, however, as the Court not only considered the merits of Pilavs 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 CECs
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 Pilavs 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 ECtHRs 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
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.
6

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 CECs 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 states margin of appreciation will
vary according to the circumstances, the subject matter, and the states diverse
historical and political background.
The Constitutional Court held that the CECs 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 BiHs 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
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).
7

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 BiHs 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
appellants 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 CECs decisions were inconsistent with Article 4 of the
FCNM. Article 4 of the FCNM guarantees national minorities equality under the
law.
29
Under Pilavs 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 Courts 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, Pilavs 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.
8

ECtHR decided the case of Sejdic and Finci v. Bosnia and Herzegovina (Sejdic-
Finci). Sejdic-Finci challenged BiHs 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 BiHs Constitution and
Election Law brought by representatives of BiHs 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
NATOs 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 ECtHRs 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
37
38
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
Pilavs 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 BiHs Constitution and Election Law may eliminate the
need for the ECtHR to consider Pilavs 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 Pilavs claims would
not longer exist.

Conclusion
The Appeal of Ilijaz Pilav addressed the role of ethnicity in BiHs 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 Pilavs 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.

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