The author expresses her own opinions and does not necessarily reflect those of MRG as an organization.

The European Court of Human Rights, up until Wednesday June 3 2009 at 9:15am, had never heard a case on its merits under the new Protocol 12 provision.  Protocol 12 provides a stand alone prohibition on differential treatment leading to discrimination.

Prior to the hearing that I attended at the Grand Chamber in Strasbourg, discrimination under the European Convention on Human Rights was dealt with only if the Court found that the discrimination fell within the ambit of another Convention provision.  This meant that discrimination was always addressed within the context of another right already guaranteed.  At times however, when the Court found an existing violation under a separate provision, discrimination issues were often left by the wayside.

Times have changed.  Seated in the front row of the circular-shaped courtroom stacked with seventeen appointed judges from seventeen of the Council of Europe member states, I watched it happen.  The case, Sejdić and Finci v. Bosnia and Herzegovina (no. 27996/06 and 34836/0), deals with two prominent members of Bosnian Herzegovinan (BiH) political society.  One of Roma origin and one of Jewish faith, these two men are both prohibited by the Constitution of BiH from running for the highest levels of political office because of their ethnic and religious heritage.  The BiH Constitution provides that only members of the “constituent peoples” (Serbs, Croats and Bosniacs) are eligible for these political positions.  This exclusionary provision was included as a means of creating a legislative power-share arrangement amongst the warring factions following the ruthless ethnic conflict of the late 1990s.

But as counsel for the claimants argued, the time had come for the Constitution of BiH to live up to its international obligations under the Convention.  As a legal intern for Minority Rights Group International (MRG), a London based NGO advocating for minority and aboriginal rights around the world, I was able to get directly involved in the issues presented to the Grand Chamber.  MRG helped represent Mr. Finci, along with Clive Baldwin (formerly of MRG now at Human Rights Watch) and Sheri Rosenberg of Cardozo Law School in New York.

The arguments were simple, the politics are not.  The exclusion of minority groups from running for certain levels of office in BiH is direct and obvious ethnic/religious discrimination; the most nefarious and troubling type.  There exists no legitimate justification for this type of discrimination according to the case law, except in the most extreme of circumstances.  The BiH government lawyers presented a tangled mess of justifications ranging from political instability to the outright powerlessness of the government to enact amendments to their own Constitution (despite having done so just one month prior).

It remains to be seen if the Court makes good use of Protocol 12 and orders the government of BiH to strike the exclusionary clause.  For the sake of equality, democracy and the rule of law in the troubled state – we hope it does.