KONGRESNA NARODNA STRANKA AND OTHERS v. BOSNIA AND HERZEGOVINA

FIFTH SECTION

DECISION

Application no. 414/11

KONGRESNA NARODNA STRANKA and Others

against Bosnia and Herzegovina

The European Court of Human Rights (Fifth Section), sitting on 26 April 2016 as a Chamber composed of:

Angelika Nußberger, President,

Ganna Yudkivska,

Khanlar Hajiyev,

Erik Møse,

Faris Vehabović,

Síofra O’Leary,

Carlo Ranzoni, judges,

and Claudia Westerdiek, Section Registrar.

Having regard to the above application lodged on 30 December 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1The applicants are the National Congress Party for the Protection of the Human Rights of War Veterans and Citizens, and of Justice and Morals in Bosnia and Herzegovina (Kongresna narodna stranka zaštite ljudskih prava boraca i građana, pravde i morala Bosne i Hercegovine; “the Party“) and 45 citizens of Bosnia and Herzegovina (“the applicants“). A list of the applicants is set out in the appendix.

2The applicants were granted leave by the President to be represented by the president of the Party and one of the applicants, Mr. E. Imširović (Rule 36 § 2 of the Rules of Court). The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

A. The circumstances of the case

3The facts of the case, as submitted by the parties, may be summarised as follows.

4The Party was established on 25 December 1997 under the laws of Bosnia and Herzegovina. The applicants are members of the Party.

5The Party participated in the 2006 elections for the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina. Almost all of its candidates declared themselves Bosniacs.

6On 30 June 2010 the Party’s registration for the 2010 elections was refused because it was submitted out of time. The Party failed to lodge an appeal against that decision.

7On 11 June 2014 the Party’s registration for the 2014 elections was refused for failure to comply with the procedural requirements (a failure to pay a required deposit and to submit a list of signatures in support of its candidacy). On 18 June 2014 that decision was upheld by the Court of Bosnia and Herzegovina (“the State Court”).

8The applicants claim that they do not declare affiliation with any of the “constituent peoples” (namely, Bosniacs[1], Croats[2] and Serbs[3]). They describe themselves as “a person from Tuzla”, “a Muslim”, “a Catholic”, “a person from Sarajevo”, “a person from Krajina”, “a person from Herzegovina”, “a refugee”, “a war veteran” and the like; while three of them describe themselves as belonging to the Roma and Albanian ethnic minorities respectively.

B. Relevant domestic law and practice and international documents

9The relevant domestic law and practice and international documents were outlined in Sejdić and Finci v. Bosnia and Herzegovina ([GC], nos. 27996/06 and 34836/06, ECHR 2009) and Zornić v. Bosnia and Herzegovina (no. 3681/06, 15 July 2014). Notably, the Constitution of Bosnia and Herzegovina makes a distinction between members of “constituent peoples” (persons who declare affiliation with Bosniacs, Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood or other reasons).

10In the former Socialist Federal Republic of Yugoslavia, a person’s ethnic affiliation was decided solely by that person, through a system of self-classification. Thus, no objective criteria such as knowledge of a certain language or belonging to a specific religion existed. Moreover, there was no requirement of acceptance by other members of the ethnic group in question. Since the Constitution contains no provisions regarding the determination of one’s ethnicity it appears that it was assumed that the traditional self-classification would suffice.

11In accordance with the 1995 Constitution (Articles IV § 1 and V), only persons declaring affiliation with a “constituent people” are entitled to stand for election to the House of Peoples of the Parliamentary Assembly and the Presidency of Bosnia and Herzegovina.

COMPLAINT

12The applicants complained that they were not able to participate in the 2010 elections for the House of Peoples and the Presidency of Bosnia and Herzegovina on account of their non-affiliation with a “constituent people”. They relied on Article 3 of Protocol No. 1 to the Convention and Article 14 of the Convention. The Court ex officio communicated this complaint also under Article 1 of Protocol No. 12 to the Convention.

THE LAW

13The Government submitted that the application should be rejected as an abuse of the right of application because the applicants had attempted to mislead the Court into believing that their case was similar to Sejdić and Finci. However, it was not until after their failure to register properly for the 2010 elections that the applicants raised the discrimination complaint relying on that judgment. Moreover, a majority of the Party’s candidates for the 2006 elections had declared themselves Bosniacs.

The Government further submitted that the applicants had failed to lodge an appeal against the decision of 30 June 2010 before the State Court (see paragraph 6 above) and that they could not claim to be the victims of the alleged violations because they had not participated in the 2010 elections by their own fault.

14The applicants did not dispute the Government’s arguments, but focused instead on alleged irregularities in domestic proceedings in which a fine was imposed on the Party in 2008 for a breach of a regulation on party funding which is not the subject of the present case.

15The Court reiterates that the concept of “abuse” within the meaning of Article 35 § 3 of the Convention must be understood to mean any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it (see S.A.S. v. France [GC], no. 43835/11, §§ 66-67, ECHR 2014 (extracts) and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). An application is likely to be dismissed on this ground inter alia if it has been established that it is knowingly based on untrue facts and false declarations (see, for example, Drijfhout v. the Netherlands (dec.), no. 51721/09, 22 February 2011, and Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007), or that significant information and documents have been deliberately witheld, either where they were known from the outset (see Puusep v. Estonia (dec.), no. 67648/10, 7 January 2014, and Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or where new significant developments have occurred during the procedure (see Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013, and Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008).

16Turning to the present case, the Court notes that the applicants complained about their alleged ineligibility to stand for the 2010 elections for the House of Peoples and the Presidency based on their non-affiliation with any of the “constituent people”. In that respect, the Court observes that the Party’s registration for these elections was refused because it was submitted outside the prescribed time-limit. Furthemore, as regards their ethnic origin, the Court notes that the applicants describe themselves as “a person from Tuzla”, “a Muslim”, “a Catholic”, “a person from Sarajevo”, “a person from Krajina”, “a person from Herzegovina”, “a refugee”, “a war veteran” and the like; while three of them describe themselves as belonging to the Roma and Albanian ethnic minorities respectively.

17The Court notes that there are no objective criteria for oneʼs ethnic affiliation, which depends solely on oneʼs own self-classification (see paragraph 10 above; see also Sejdić and Finci, cited above, § 11, and Zornić, cited above, § 9). In Zornić the Court concluded that Bosnia and Herzegovina should provide every citizen with the right to stand for elections to the Presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for “constituent peoples” to the exclusion of minorities or citizens of Bosnia and Herzegovina (ibid, § 43).

18While acknowledging that, the Court observes that the applicants use vague and undefined terms that appear to have been purposely chosen to obfuscate the issue (see paragraph 16 above). Moreover, almost all of the Party’s candidates for the 2006 elections declared affiliation as Bosniacs. Among them were three of the applicants in the present case, including the president of the Party Mr Imširović. They now claim not to belong to any “constituent people”. The applicants’ submissions failed to clarify this matter.

19As was mentioned before, the Party’s registration for the 2010 election was refused for failure to comply with the procedural requirements, not their failure to identify as members of “constituent peoples”. It is therefore apparent that the applicants have deliberately sought to misrepresent the facts of the case with a view to influencing the Court’s decision. That being so, the Court cannot but conclude that the applicants’ conduct was contrary to the purpose of the right of individual application, as provided for in Article 34 of the Convention. Therefore, it is appropriate to reject this part of the application as an abuse of the right of application, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

20In these circumstances, the Court does not consider it necessary to continue the examination of the case under Article 1 of Protocol No. 12 to the Convention on its own initiative.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 May 2016.

Claudia Westerdiek Angelika Nußberger

Registrar President

Appendix

[1] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” (Bošnjaci) should not be confused with the term “Bosnians” (Bosanci) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

[2] The Croats are an ethnic group whose members may be natives of Croatia or of other former component republics of the SFRY including Bosnia and Herzegovina. The expression “Croat” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Croatian”, which normally refers to nationals of Croatia.

[3] The Serbs are an ethnic group whose members may be natives of Serbia or of other former component republics of the SFRY including Bosnia and Herzegovina. The expression “Serb” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Serbian”, which normally refers to nationals of Serbia.