Discrimination in BiH's Law On The Census

1
ANALYSIS OF BOSNIA AND

HERZEGOVINAS LAW ON THE CENSUS
UNDER DOMESTIC AND EUROPEAN
DISCRIMINATION LAWS

Legal Memorandum

August 2012

ANALYSIS OF BOSNIA AND HERZEGOVINAS LAW ON THE CENSUS UNDER
DOMESTIC AND EUROPEAN DISCRIMINATION LAWS

Executive Summary

The purpose of this memorandum is to analyze the compliance of the
provisions relating to ethnicity of Bosnia and Herzegovinas (BiH) 2012 Law on
the Census with BiHs domestic and international anti-discrimination
commitments.

BiH adopted the Law on the Census in February 2012. The Law on the
Census includes a census form that asks each citizen to identify his/her ethnicity
and religion (citizens may choose to not declare this information) and requires a
declaration of mother tongue. Citizens who self-identify as members of the three
constituent peoples (Bosniaks, Serbs and Croats) are provided with tick boxes for
their answers to these questions. Citizens who do not self-identify as members of
the three constituent peoples must write in their answers to these questions. Civil
society organizations have challenged the census form on the bases that it was
adopted without public consultation and could entrench ethnic divisions and
intolerance toward minorities.

BiH has three primary sources for domestic and international anti-
discrimination commitments: (1) BiHs Law on Prohibition of Discrimination; (2)
the European Convention on Human Rights (ECHR); and (3) the influential
holding of the European Court of Human Rights in Sejdic and Finci v. Bosnia and
Herzegovina.

BiHs Law on Prohibition of Discrimination, which establishes the domestic
legal standards underlying anti-discrimination, provides that differential treatment
on the basis of ethnicity is discriminatory unless the government can provide a
justifiable reason and legitimate means for the differential treatment. Similar to the
BiH Law, the ECHR provides that differential treatment on the basis of ethnicity
(or language as a proxy) constitutes discrimination unless a reasonable and
objective justification can be provided, and the means used to pursue that
justification are proportionate.

In Sejdic and Finci, the European Court held that BiHs Constitution and
Election Law discriminate against ethnic minorities by only allowing the
constituent peoples to stand for election to the Presidency and the House of
Peoples. Sejdic and Finci reiterated the requirement that discriminatory laws can

3
only stand if they have a reasonable and objective justification, and that ethnic
tensions in BiH no longer constituted a justification for continued discrimination
against minorities.

Based on the application of the BiH Law on Prohibition of Discrimination
and the ECHR, the differential treatment of ethnic minorities on the census form is
likely discriminatory. By differentiating between constituent peoples and other
ethnic minorities, the form may have the impact of solidifying ethnic divisions
within BiH. Because ethnic discrimination is endemic in BiH political and public
life, holding a census that formally distinguishes between constituent peoples and
others perpetuates and solidifies these divisions. In addition, the form places the
burden of expressing ethnic identity on members of minority populations. Further,
given the findings of the Sejdic and Finci decision, there is likely no reasonable or
objective justification for this differential treatment. BiH is not currently facing an
imminent risk of conflict, and discriminatory laws and policies seem to be making
the political situation worse, rather than preserving peace, as the government has
argued in past cases. As a result, the census form is likely discriminatory.

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

BiH Law on the Census 3

BiH Anti-Discrimination Law 5
Law on Prohibition of Discrimination 5
Discrimination Under the Law 5
Permissible Instances of Discrimination 6
BiH Case Law on Discrimination 7

European Anti-Discrimination Law 9
European Convention on Human Rights 9
Article 14 10
Article 1 of Protocol No. 12 10
European Court of Human Rights: Sejdic and Finci v. Bosnia and
Herzegovina 11
Interpretation of Article 14 11
Interpretation of Article 1 of Protocol No. 12 12

Analysis 13
BiH Anti-Discrimination Law 13
Differential Treatment 13
Reasonable and Objective Justification 15
European Anti-Discrimination Law 16
Differential Treatment 17
Reasonable and Objective Justification 18

Conclusion 20

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ANALYSIS OF BOSNIA AND HERZEGOVINAS LAW ON THE CENSUS UNDER
DOMESTIC AND EUROPEAN DISCRIMINATION LAWS

Statement of Purpose

The purpose of this memorandum is to analyze the compliance of the
provisions relating to ethnicity of Bosnia and Herzegovinas 2012 Law on the
Census with BiHs domestic and international anti-discrimination commitments.

Introduction

In 2008, Bosnia and Herzegovina (BiH) signed and ratified a Stabilization
and Association Agreement (SAA) with the European Union (EU). In order to
move forward in its EU accession process, BiH must conduct a census in
accordance with EU standards.
1
In keeping with this commitment, the
Parliamentary Assembly of BiH passed the Law on the Census of Population,
Households and Dwellings in Bosnia and Herzegovina in February 2012. The Law
establishes a framework for counting every citizen of BiH, including: citizens who
usually reside in and are present in the state; citizens who usually reside in the state
but are absent; citizens who maintain a residence in BiH but reside abroad, and;
foreign citizens with residence permits.
2
The Law includes a census form with
questions pertaining to ethnicity, religion, and language. The form lists BiHs
constituent peoples (Bosniaks, Croats, and Serbs), and provides a write-in option
for others (members of ethnic minorities, along with persons who do not declare
an affiliation with any ethnic group because of intermarriage, mixed parentage, or
other reasons).
3

The census form has been challenged by civil society and questioned by
international observers as differentiating between constituent peoples and
minorities without a reasonable and objective justification.
4
Based on the legal
standards enumerated in the BiH Law on Prohibition of Discrimination and
European Convention on Human Rights (ECHR), particularly as interpreted by the

1
Stabilization and Association Agreement art. 88 (European Union and Bosnia and Herzegovina, 2008), available at
http://www.official-documents.gov.uk/document/cm77/7743/7743.pdf.
2
Law on the Census of Population, Households and Dwellings in Bosnia and Herzegovina in 2013, art. 4, 40
(Bosnia and Herzegovina, 2012), available at
http://www.bhas.ba/index.php?option=com_content&view=article&id=101%3Azakon-o-popisu-stanovnitva-
domainstava-i-stanova-u-bih-2013&catid=60%3Adokumenti&Itemid=84&lang=en.
3
BOSNIA AND HERZEGOVINA CONST. art. 2 (1995).
4
Steering Committee of the International Monitoring Operation on the Population and Housing Censuses in Bosnia
and Herzegovina, First Assessment Report, para. 72 (2012), available at
http://www.bhas.ba/census/779849_Report%20First%20Mission%20BiH%20Census%20revised.pdf.

3
European Court of Human Rights (European Court) in Sejdic and Finci v.
Bosnia and Herzegovina, this differential treatment is likely discriminatory.
Commentators have noted that laws and policies that continue to divide ethnic
groups, such as the census form, are causing more harm than good within BiH.
5

BiHs Law on the Census

The Law on the Census provides the parameters for the census form.
Though Article 8 of the Law provides that the topics of ethnic/national affiliation,
religion, and mother tongue will be covered by the census, Article 12 provides that
respondents do not have to answer questions relating to ethnic/national affiliation
or religion.
6
In the census form, BiH citizens have the option of declaring their
ethnicity/nationality Bosniak, Croat, Serb, Not Declared, or Other and their
religion Islam, Catholicism, Orthodoxy, Not Declared, or Other. Citizens are
required to declare their mother tongue, with options for Bosnian, Croatian,
Serbian, or Other, and no option for Not Declared.
7
For ethnicity, religion, and
mother tongue, citizens who are members or minority groups or who do not wish
to identify as members of the three constituent peoples are required to write in
their answers.
8
The written answers may only be eighteen characters in length.
9

These questions appear as follows:

5
Second Class Citizens: Discrimination Against Roma, Jews and Other National Minorities in Bosnia and
Herzegovina, HUMAN RIGHTS WATCH, 2, 3 (4 Apr. 2012), available at http://www.hrw.org/node/106194/section/3.
6
Law on the Census of Population, Households and Dwellings in Bosnia and Herzegovina in 2013, art. 8, 12
(Bosnia and Herzegovina, 2012), available at
http://www.bhas.ba/index.php?option=com_content&view=article&id=101%3Azakon-o-popisu-stanovnitva-
domainstava-i-stanova-u-bih-2013&catid=60%3Adokumenti&Itemid=84&lang=en.
7
Census Form to the Law on the Census of Population, Households and Dwellings in Bosnia and Herzegovina in
2013, questions 24, 25, and 26 (Bosnia and Herzegovina, 2012), available at
http://www.bhas.ba/popis2011/P1_25_6_2012_FIN_ENG.pdf.
8
9

4

Public outcry over the census ethnicity, religion, and language questions
arose after the passage of the law; many BiH NGOs and human rights
organizations argued that the questions would only perpetuate intolerance and
discrimination against the states minorities, and would further entrench ethnic
divisions within BiH by making it difficult for citizens of BiH to choose not to
align themselves with the constituent peoples.
10
Representatives from the NGO
coalition Initiative for Free Declaration and the Roma Information Centre Kali
Sara have publicly criticized the census, claiming that, like the Constitution and the
Election Law, it favors BiHs constituent peoples.
11
These groups also
expressed concern that Parliament adopted the law without any public
consultation.
12

In addition, though the Law on the Census was adopted in pursuit of EU
membership for BiH, EUROSTAT which gathers statistics on EU institutions
and provides guidelines for EU and EU candidate states to gather statistics
domestically does not require collection of information pertaining to ethnicity,
religion, or language.
13
The EU does, however, recommend that where these
questions are included, they should be optional.
14
Though the questions in the
census form that pertain to ethnicity and religion provide a not declared option,

10
Anes Alic, NGOs: EU Must Address Flawed Census Law, SETIMES.COM, June 4, 2012, at 1, available at
http://setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2012/06/04/feature-02. See also
http://www.romatransitions.org/bosnias-census-plans-discriminatory/.
11
12
13
Upcoming Bosnian Census, Continuation of Genocide by Legalization, THE BALKAN CHRONICLE, June 11, 2012,
at 1, available at http://www.balkanchronicle.com/index.php/world/world-news/balkans/2293-upcoming-bosnian-
census-continuation-of-genocide-by-legalization.
14
Delegation of the European Union to BiH, European Union Newsletter, No. 6, at 7 (2010), available at
http://www.delbih.ec.europa.eu/documents/delegacijaEU_2012011214342751eng.pdf.

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the question on mother tongue does not, and thus may not meet EU standards,
because language in BiH can act as a proxy for ethnicity.
15

In its September 2011 Adapted Global Assessment of the National
Statistical System of Bosnia and Herzegovina, EUROSTAT noted that the
questions regarding ethnicity and religion could cause controversy in BiH, and
called on the Agency for Statistics of Bosnia and Herzegovina (BHAS) to look for
new and administrative sources for collecting demographic data of this sort.
16

Other groups, including the Initiative for Free Declaration, have recommended that
the census form be amended to make the question regarding mother tongue
optional and to provide more choices for self-identification for instance, by
allowing respondents to freely write in their response (without any pre-determined
tick-boxes), or to denote multiple identities.
17

BiH Anti-Discrimination Law

Passed in July 2009, the Law on the Prohibition of Discrimination
implements the prohibition of discrimination contained in Article 2 of the BiH
Constitution.
18
The Law delineates the responsibilities and obligations of all
competent government authorities to ensure protection, promotion and creation of
conditions for equal treatment of all citizens of BiH.
19
Article 2 defines
discrimination, Article 3 defines the forms (direct and indirect) of discrimination,
and Article 5 establishes exceptions to the prohibition on discrimination. The BiH
Constitutional Court has likewise provided standards for what constitutes
discrimination under European, and by extension, BiH law.

Law on Prohibition of Discrimination

Discrimination Under the Law
Article 2 of the Law defines discrimination as differential treatment,
including exclusion, limitation, or preference, based on ethnic affiliation, national

15
2013, questions 24, 25 and 26 (Bosnia and Herzegovina, 2012).
16
Jan M. Byfuglian and Gunther Kopsch, Adapted Global Assessment of the National Statistical System of Bosnia
and Herzegovina, EUROSTAT, 57 (Sept. 2011), available at http://www.bhas.ba/dokumenti/AGA_2012_001_01-
EN.pdf.
17
Initiative for Free Declaration, BiH Census 2013 Initiative for Free Declaration: Demands, August 2012.
18
BOSNIA AND HERZEGOVINA CONST. art. 2 (1995).
19
Law on Prohibition of Discrimination art. 1 (Bosnia and Herzegovina, 2009), available at
http://www.unhcr.org/refworld/docid/4d302a9f2.html.

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or social origin, or connection to a national minority.
20
The government of BiH
may not discriminate against a citizen of the state by limiting his/her enjoyment of
the rights and freedoms of public life.
21
Moreover, the prohibition on
discrimination extends to both public bodies and the private sector, particularly
with regard to the provision of social services, membership in professional
organizations, and employment.
22

Article 3 establishes the specific types of discrimination prohibited in BiHs
governmental policies. Direct discrimination occurs when a person or group of
persons is put, or could be put, into a less favourable position as compared to
similarly situated individuals.
23
Any government official who excludes a group of
persons based on their ethnicity, national origin, or connection to a national
minority violates this provision. Similarly, if an official is aware of governmental
discrimination and fails to protect those suffering it, he/she is guilty of direct
discrimination.
24

Indirect discrimination occurs when an apparently neutral provision,
criteria, or practice has or would have the effect of putting a person or group of
persons in an unfavourable or less favourable position.
25
A law is indirectly
discriminatory if it negatively affects a certain segment of the population, even
though it seems facially neutral.

Permissible Instances of Discrimination
The Law on Prohibition of Discrimination also contains exceptions to the
principle of equal treatment, recognizing that in certain limited instances
discrimination may be necessary. For a law that provides for differential treatment
of a certain group to fall within these exceptions, the government must provide an
objective and reasonable justification for the differential treatment.
26
In addition,

20
21
22
23
24
25
26

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the law must seek to attain a reasonable goal, and the means to achieve that goal
must be proportional to its ends.
27

Further, there are a number of specific situations in which discrimination is
legally permissible. Some of these situations seek to remedy previous
discrimination or disadvantages in public life and employment by promoting the
active participation of particular groups. For instance, if a temporary law is
designed to prevent or compensate damages that persons suffer due to
discrimination on Article 2 grounds, and thereby enable those persons active
participation in public life, discrimination is allowed.
28
The exceptions also allow
employers to give special treatment to people with disabilities if such treatment is
necessary for them to train and do their jobs. Additionally, in certain professional
activities where a persons features (including religious beliefs) affect how he can
perform his duties, discrimination may be legally permissible.
29
Discrimination is
also legally permissible with respect to citizenship, as stipulated by law.
30
The law
also allows for discrimination under family law, which provides certain
requirements for marriage and favors arrangements that protect the rights and
privileges of children.
31

BiH Case Law on Discrimination

Courts in BiH have considered discrimination under both BiH and European
Law. Prior to the passage of the 2009 Law of the Prohibition of Discrimination,
BiH courts applied the European Convention, which was incorporated into BiH
law through the Constitution. As a result, BiH has substantially more case law on
discrimination under the ECHR. However, because the Law on Prohibition of
Discrimination was adopted in compliance with international standards and
mirrors language used by the European Court in its discrimination analysis, BiH
courts are likely to analyze BiH and European anti-discrimination laws using
similar standards.
32

27
28
29
30
31
32

8

Like the European Court, the BiH Constitutional Court applies a two-part
test to determine whether discrimination has occurred: first, it will examine
whether groups in analogous situations have received differential treatment and,
if they have, it will examine whether there is a reasonable and objective
justification for that treatment.
33
A reasonable and objective justification occurs
where there is a legitimate aim and a reasonable relationship of proportionality
between the aim and the means employed to achieve that aim .
34

The Court does not indicate whether the differential treatment must result in
unfavorable consequences for one group. In Case No. U-12/09, the Court found
that there was differential treatment where a law regarding maternity leave for
women working in state institutions, which was neutral on its face, impacted
women in the Federation of Bosnia and Herzegovina (FBiH) and the Republika
Srpska (RS) differently. Because of entity policies in place, women in FBiH
received less compensation during maternity leave.
35
The Court held that the
different impacts of the law on women in FBiH and RS constituted differential
treatment, which amounted to discrimination because the means employed
(reliance on local regulations) were not proportionate to the aim sought under the
law (providing social protection and compensation for women on maternity
leave).
36
In reaching this conclusion, the Court considered that even in states with
similar federal structures (such as Germany and Switzerland), maternity leave is
equal for all women, regardless of where they live.
37
Though the appellants in this
case brought claims under both the ECHR and the Law on Prohibition of
Discrimination, the Court only engaged in analysis with regard to the former. The
Court did note in passing, however, that the Law on Prohibition of Discrimination
obliges all competent authorities in the State and in the Entities to harmonise all

33
Dvadeset tri zastupnika Zastupni!kog doma Parlamentarne skup"tine Bosne i Hercegovine i pet zastupnika Doma
naroda Parlamentarne skup"tine Bosne i Hercegovine, Case No. U-12/09, 20 (2010), available at
http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480.
34
35
36
37

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regulations in order to establish non discriminatory conditions of political,
economic and social life in Bosnia and Herzegovina.
38

The Court has also dealt with discrimination on ethnic grounds, but with
different results. In the Appeal of Stranka za Bosnu i Hercegovinu (Party for
Bosnia and Herzegovina) and Mr. Ilijaz Pilav, Case No. AP-2678/06, the Court
acknowledged that the inability of Others to run for election to the Presidency
and the House of Peoples under both the Constitution and the Election Law
constitutes differential treatment. Although the Court did not say that
differential treatment must amount to unfavorable treatment to constitute
discrimination, the Court acknowledged that the differential treatment of Others
effectively restricted their electoral rights.
39
However, the Court in this case held
that there is a reasonable and objective justification for differential treatment of
Others. The Courts analysis in this respect was cursory, noting only that the
restrictions (the means) were justified given the current situation in BiH and the
necessity of the preservation of the established peace (the aims).
40

While the standards that the BiH Constitutional Court apply for
discrimination mirror those set by the European Court, as it will be shown, the
Court reached a different outcome in the Pilav case than the European Court
reached in the similar Sejdic and Finci case. The difference in outcomes between
the two Courts is due to differences in the reasonable and objective justification
prong of the discrimination test.

European Anti-Discrimination Law

BiH became a member of the Council of Europe in 2002 and ratified the
European Convention on Human Rights (the Convention) in the same year.
41

BiH is thus bound by the provisions of the Convention and by the jurisprudence of
the European Court of Human Rights.
42
With regard to discrimination, BiH is
bound by Article 14 and Article 1 of Protocol No. 12 of the Convention, which
pertain to discrimination with respect to the rights contained in the Convention,

38
39
Stranka za Bosnu i Hercegovinu i Ilijaza Pilava, Case No. AP-2678/06, 10 (2006), available at
40
41
Council of Europe, Bosnia and Herzegovina (last accessed Aug. 15, 2012), available at
http://www.coe.int/country/bosnia-and-herzegovina.
42
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 34 (2009).

10
and with respect to rights guaranteed under national laws, respectively.
Additionally, BiH is also bound to implement the decision of the European Court
of Human Rights in Sejdic and Finci v. Bosnia and Herzegovina.

European Convention on Human Rights

The European Convention on Human Rights contains two provisions that
prohibit discrimination.
43
Article 14 prohibits discrimination with regard to the
rights set forth in the Convention itself.
44
Article 1 of Protocol No. 12, which BiH
ratified in 2003,
45
contains a more general prohibition on discrimination that
applies to any right guaranteed under any law.
46

Article 14
Article 14 of the Convention articulates that, the enjoyment of the rights
and freedoms set forth in this Convention 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.
47
Based on these guidelines, state parties may not
discriminate against individuals based on their ethnic origins with respect to the
rights provided in the Convention.

Article 1 of Protocol No. 12
Article 1 of Protocol No. 12 of the Convention provides a general
prohibition against discrimination. Paragraph 1 explains that, 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.
48

This provision precludes state parties from discriminating against individuals based

43
European Convention on Human Rights art. 14 (1995), available at
http://conventions.coe.int/treaty/en/treaties/html/005.htm; Protocol No. 12 to the European Convention on Human
Rights art. 1 (2000), available at http://conventions.coe.int/treaty/en/treaties/html/177.htm.
44
http://conventions.coe.int/treaty/en/treaties/html/005.htm.
45
Council of Europe, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Status as of 16/8/2012 (last accessed Aug. 15, 2012), available at
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=8&CL=ENG.
46
Council of Europe, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Status as of 16/8/2012 (last accessed Aug. 15, 2012), available at
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=177&CM=8&CL=ENG.
47
48
Protocol No. 12 to the European Convention on Human Rights art. 1 (2000), available at

11
on their ethnic origins, regardless of how they self-identify, with respect to rights
guaranteed under both European and domestic law. Paragraph 2 of the Article
specifies that public authorities may not discriminate against individuals based on
the grounds listed in paragraph 1.
49

European Court of Human Rights: Sejdic and Finci v. Bosnia and
Herzegovina

In its December 2009 decision on the matter of Sejdic and Finci v. Bosnia
and Herzegovina, the European Court of Human Rights interpreted and applied
Article 14 of the ECHR and Article 1 of Protocol 12 to BiHs Constitution and
Election Law, finding that both discriminate against ethnic minorities.
50
Dervo
Sejdic and Jakob Finci, of Roma and Jewish backgrounds respectively, complained
of their ineligibility to be elected to the House of Peoples and the Presidency of
BiH based on their status as others.
51
The Court held that the provisions relating
to election to the House of Peoples violate Article 14, and the provisions relating to
election to the Presidency violating Article 1 of Protocol No. 12.
52

Interpretation of Article 14
In interpreting Sejdics and Fincis claims under Article 14 of the
Convention, the Court considered Article 14 in conjunction with Article 3 of
Protocol No. 1, which guarantees a right to free elections at reasonable intervals
by secret ballot, under conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.
53
According to the Court,
discrimination is treating differently, without an objective and reasonable
justification, persons in similar situations.
54
Under Article 14, the bases on which
differential treatment will be analyzed for discrimination are sex, race, colour,
language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
55
A reasonable and
objective justification means that the discrimination is necessary to pursue a
legitimate aim, using means that are proportionate to that aim.
56
The Court cited

49
50
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1 (2009).
51
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1 (2009).
52
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 30-36 (2009).
53
54
55
56

12
Case of D.H. and Others v. the Czech Republic, which determined that ethnicity is
a subset of racial discrimination, one that deals with a groups shared nationality,
religion, language, and culture. The Court noted pursuant to D.H. and Others,
courts must use strict scrutiny when considering legislation or policies that result in
ethnic discrimination.
57

The Court held that the Constitution and Election Law of BiH as they pertain
to election to the House of Peoples violate Article 14 when read in conjunction
with Article 3 of Protocol No. 1. The Court reasoned that BiH lacked an objective
and reasonable justification for discrimination with regard to election to the House
of Peoples.
58
The Court took into account several factors in concluding that the
discriminatory measures under BiH law were no longer proportionate to a
legitimate aim, which included: the positive developments toward peace in BiH
since 1995; the ability to structure power-sharing in a way to include Others;
BiHs own goals for EU accession; and BiHs experience with amending its
Constitution in 2009.
59

Interpretation of Article 1 of Protocol No. 12
Sejdic and Finci was the first case where the European Court considered a
claim of discrimination under Article 1 of Protocol No. 12.
60
Whereas Article 14
only applies to discrimination with regard to the rights detailed in the Convention,
Article 1 of Protocol No. 12 applies more broadly. Under Article 1 of Protocol No.
12, any rights and freedoms that a state provides fall under the Conventions
scope.
61

In Sejdic and Finci, the Court applied Article 1 of Protocol No. 12 in
recognition that the Article 3 of Protocol No. 1 deals only with the legislature. As
a result, Article 14 of the Convention cannot be used to evaluate the legality of
claims to the system for electing the president, as there is no corresponding
provision within the Convention and its Protocols. While the Court found that
Article 14 did not apply to Sejdics and Fincis challenges of presidential election
procedures, it held that the discrimination analysis used for Article 14 should also

57
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 26 (2009) (citing D.H. and
Others v. Czech Republic, European Court of Human Rights, para. 176 (2007), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83256).
58
Judge Bonello of the Court dissented, however, on the grounds that the Court is not in a position to determine
whether BiH still has an objective and reasonable justification for allowing discrimination in its laws. Sejdic and
Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 55 (2009) (Bonello, J., dissenting).
59
60
61

13
be used for Article 1 of Protocol No. 12. The Court found that BiHs requirements
for election to the Presidency were discriminatory under Article 1 of Protocol No.
12 because they lacked a reasonable and objective justification.
62
In support of this
conclusion, the Court referenced its detailed reasons regarding Article 14 and
election to the House of Peoples, and held that the requirements for election to the
Presidency lacked a reasonable and objective justification for the same reasons.
63

Analysis

Under BiHs Law on Prohibition of Discrimination, the European
Convention, and the decision of the European Court in Sejdic and Finci, BiHs
Law on the Census is likely discriminatory. The standards for discrimination
under each of these sources of applicable law are similar: each prohibits
differential treatment between groups based on ethnicity, religion and language,
unless it is applied in pursuit of a reasonable and objective goal, and the measures
used to pursue this goal are proportional. Without such justification, differential
treatment constitutes discrimination. Because the differential treatment given to
minorities in the census form is not supported by a reasonable and objective
justification, it is likely discrimination, and would likely be treated the same way
by the European Court as the Constitution and Election Law were in Sejdic and
Finci.

BiH Anti-Discrimination Law

Differential Treatment
Pursuant to the standards set forth in the Law on Prohibition of
Discrimination, the BiH census form likely discriminates against minorities based
upon their ethnicity/nationality, religion and mother tongue.
64
Discrimination is
defined in Article 2 as differential treatment, including exclusion, limitation, or
preference, based, in part, on ethnic affiliation, national or social origin, or
connection to a national minority.
65

Under Article 3 of the Law on Prohibition of Discrimination, direct
discrimination occurs where an action or a failure to act puts a person or group in a

62
63
64
65

14
less favourable position to persons or groups in analogous situations.
66
The BiH
Constitutional Court has held that discrimination occurs where similarly-situated
groups are given differential treatment, but does not require that the differential
treatment amount to unfavorable consequences or disadvantages for groups.
67

The census treats groups differently, which could result in a less favourable
position, persons who do not wish to identify with the constituent peoples, or
persons who may wish to simply identify as a citizen.

The census form is directly discriminatory under Article 3, because it openly
differentiates between the three constituent peoples, who are given answers on the
form, and Others, who must write in their answers. Observers are concerned
about how the census data will be used, and differentiating between groups could
potentially put minorities in a less favourable position as compared with the
constituent peoples.
68
Continuing to refer to minorities as Others and requiring
them to self-identify on the census form may solidify their position as second-class
citizens. For instance, minorities in BiH currently do not have the same political
rights by law as the constituent peoples; until the Sejdic and Finci decision is
implemented, minorities and non-constituent persons still may not run for election
to the House of Peoples and the Presidency. Additionally, minorities are barred
from taking civil service positions in many municipalities and cantons throughout
BiH, due to similar ethnic quotas and discrimination at the local level.
69

Furthermore, the census could link certain portions of territory to certain ethnic
groups, to the potential exclusion of others; more specifically, some groups are
concerned that the census will complete the ethnic cleansing of the 1992-1995 war
by confirming that certain ethnic groups no longer exist in significant numbers in
certain areas.
70
Therefore, the census form both applies differential treatment to
BiHs ethnic groups, and could result in unfavorable consequences for minorities.

The census form meets the definition of discrimination under the Law on
Prohibition of Discrimination and under the discrimination jurisprudence of the

66
67
http://www.ccbh.ba/eng/odluke/povuci_pdf.php?pid=310480;
68
69
Protecting Minorities in Bosnia The EU Has a Role to Play, HUMAN RIGHTS WATCH (Apr. 20, 2012), available
at http://www.hrw.org/news/2012/04/20/protecting-minorities-bosnia-eu-has-role-play.
70
Anes Alic, Debates Begin Over 2013 Census in BiH, SETIMES.COM, Feb. 23, 2012, available at
http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2012/02/23/feature-01.

15
BiH Constitutional Court. Without a reasonable and objective justification, the
differential treatment afforded to minorities and persons who do not identify with
the constituent people by the census form is unlawful.

Reasonable and Objective Justification
Under BiHs Law on Prohibition of Discrimination and BiH Constitutional
Court discrimination jurisprudence, unless the differential treatment in the census
form has an objective and reasonable justification, the census form is likely
discriminatory under BiH law.

Article 5 of the BiH Law on Prohibition of Discrimination provides that a
reasonable and objective justification exists where there is a legitimate goal
and a reasonable relation ratio of proportionality between means used and goals to
be achieved.
71
Examples of reasonable and objective justifications under BiH
law are positive discrimination (compensating victims of past discrimination),
differential treatment in certain professional activities where a persons features
(including religious beliefs) affect how he can perform his duties, differential
treatment with regard to citizenship, and differential treatment with regard to
marital status (to protect children).
72
The differential treatment in the census form
does not meet any of these exceptions.

BiH Constitutional Court jurisprudence on discrimination likewise requires a
reasonable and objective justification for differential treatment i.e., a legitimate
aim, and means proportionate to that aim. With regard to the census form, the
government of BiH has not publicly commented with regard to a possible
reasonable and objective justification for including the questions relating to
ethnicity/nationality, religion and language, and providing different answers for
constituent peoples and minorities/non-constituent persons, nor did it allow for
open discussion of the Law on the Census during which concerns on this issue
could have been raised. In the Appeal of Stranka za Bosnu i Hercegovinu (Party
for Bosnia and Herzegovina) and Mr. Ilijaz Pilav, Case No. AP-2678/06, the
government cited preservation of the established peace as a legitimate aim and
concluded, without any further analysis, that the means used (complete exclusion
of minorities from election to the Presidency and the House of Peoples) were

71
72

16
proportionate to that aim.
73
The Courts analysis on this point was cursory, so it is
unclear upon which facts it relied in making this determination.

However, it is unlikely that the government could make the same argument
with regard to the census form. In terms of a legitimate aim, dividing citizens by
ethnic groups in the census could, in fact, threaten peace in BiH, rather than
preserve it, if the data is manipulated to give certain groups more rights and more
territory than others.
74
Furthermore, the means employed are disproportionate to
this aim, since requiring ethnic minorities to provide their own responses to these
sensitive questions imposes a disproportionate burden on minorities as compared
with the constituent peoples.
75

Under BiH law, the census form is likely discriminatory. It provides for
differential treatment of similarly-situated persons without a reasonable and
objective justification for doing so. Because the analysis for discrimination is
similar under European law, the census form is likely discriminatory under
European law as well.

European Anti-Discrimination Law

Under the European Convention on Human Rights, discrimination is
prohibited with regard to any right provided in any law by any state.
76
The
European Court, upon which the BiH Constitutional Court bases its analysis, holds
that discrimination occurs where differential treatment of similarly-situated groups
has no reasonable or objective justification. The Court has also held that
heightened scrutiny should be given to differential treatment based on ethnic
classifications, especially where a group has historically been disadvantaged based
on ethnicity. Because the census form treats minorities and non-constituent

73
74
http://setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2012/06/04/feature-02. See also .Zasto
dogovor SDP-HDZcementira diskriminaciju, RADIOSARAJEVO.COM, July 20, 2012, available at
http://www.radiosarajevo.ba/novost/85905/zasto-dogovor-sdp-hdz-cementira-diskriminaciju, and

Dogovorom HDZ-
SDP ozakonjeno etnicko ciscenje diljem BiH, OTVORENO.BA, July 2, 2012, available at
http://www.otvoreno.ba/component/content/article/1-slajd/34684-dogovorom-hdz-sdp-ozakonjeno-etnicko-cisenje-
hrvata-diljem-bih.

75
Dalibor Tanic, Bosnias Census Law Discriminatory, ROMA TRANSITIONS, June 13, 2012, available at
http://www.romatransitions.org/bosnias-census-plans-discriminatory.
76

17
peoples differently without any justification, it is likely discriminatory under
European law.

Differential Treatment
Under Article 1 of Protocol No. 12 of the European Convention, BiHs
census form is likely discriminatory. Article 1 of Protocol No. 12 provides that
public authorities may not discriminate against citizens based on (among other
bases) ethnicity, religion, and language, with regard to any right under national
law.
77
In Sejdic and Finci, the European Court interpreted Article 1 of Protocol
No. 12 to extend the scope of the Convention to those rights and freedoms a state
voluntarily provides to its citizens, but used the same discrimination analysis it had
used under Article 14, which only applies to rights in the Convention.
78
Similarly,
the Court would apply Article 1 of Protocol No. 12 to the Law on the Census
because BiH has guaranteed its citizens freedom from ethnic discrimination
generally in the Law on Prohibition of Discrimination, but this right is not
explicitly provided as a separate right under the European Convention.
79

The European Court, upon whose analysis the BiH Constitutional Court
often bases its analysis, first provided its rule for discrimination in the Case
Relating to Certain Aspects of the Laws on the Use of Languages in Education in
Belgium (the Belgian Linguistics Case).
80
In this case, the Court held that not all
differences in treatment constitute discrimination; only those that treat people
differently without an objective and reasonable justification, which means a
legitimate aim, and reasonable relationship of proportionality between the
means employed and the aim sought to be realised constitute discrimination.
81
In
D.H. and Others v. Czech Republic, the Court held that ethnic discrimination is a
particularly invidious type of discrimination, that no difference in treatment which
is based exclusively or to a decisive extent on a persons ethnic origin is capable of
being objectively justified in a contemporary democratic society built on the
principles of pluralism and respect for different cultures, and that differential
treatment based on ethnicity will thus be given heightened scrutiny.
82
Though the

77
78
79
Law on Prohibition of Discrimination (Bosnia and Herzegovina, 2009), available at
http://www.unhcr.org/refworld/docid/4d302a9f2.html; BOSNIA AND HERZEGOVINA CONST. art. 2 (1995).
80
Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, European Court
of Human Rights, para. 10 (1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525.
81
Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, European Court
of Human Rights, para. 10 (1968), available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57525.
82
D.H. and Others v. Czech Republic, European Court of Human Rights, para. 176 (2007), available at

18
Court in D.H. and Others did not hold that a showing of disadvantage by one
group is necessary to prove differential treatment, it did hold that groups that have
suffered disadvantages in the past, such as Roma, are more vulnerable to
discrimination and therefore require special protection by authorities.
83
The
Court reiterated these principles with regard to ethnic discrimination in BiHs
Constitution and Election Law in Sejdic and Finci.
84

As stated with regard to the analysis under BiH law, by requiring citizens to
either identify with a group or write in answers about their ethnicity, mother
tongue, and religious affiliations, the census form treats members of ethnic
minorities differently and singles them out for potential mistreatment by public
bodies, professional organizations, or employers. Because ethnic discrimination is
endemic in BiH political and public life, holding a census that formally divides
BiH citizens into constituent peoples and others perpetuates and solidifies this
discrimination.
85
According to the European Court, differential treatment on the
basis of ethnicity (or language as a proxy for ethnicity) requires heightened
scrutiny, and minorities that have suffered discrimination in the past, such as those
in BiH who have been excluded from assuming a range of public positions,
deserve special protection by the government, rather than continued isolation.
86

Therefore, the questions pertaining to ethnicity, religion and language on the
census form likely constitute discrimination under Article 1 of Protocol No. 12 to
the European Convention, because they treat groups differently on the basis of
ethnic identification. According to the European Court, differential treatment is
only permissible pursuant to a reasonable and objective justification.
87

Reasonable and Objective Justification
Under European anti-discrimination law, differential treatment of similarly-
situated groups does not constitute discrimination where the state can provide a
reasonable and objective justification for the differential treatment.
88

83
84
85
86
87
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 32 (2009),
88
http://www.unhcr.org/refworld/docid/4d302a9f2.html; Sejdic and Finci v. Bosnia and Herzegovina, European Court
of Human Rights 1, 32 (2009).

19

Though the European Convention does not mention exceptions in the same
way the BiH Law does, the European Court has held, similarly with the BiH Law,
that there is an exception to the prohibition on differential treatment where a state
can provide a reasonable and objective justification, defined as a legitimate
aim and a reasonable relationship of proportionality between the means
employed and the aim sought to be realized.
89
The European Court has likewise
held that positive discrimination is permissible to correct inequality through past
differential treatment.
90
Therefore, under both BiH and European law, the
government of BiH may only legally discriminate against its citizens when it seeks
to attain a reasonable and objective justification and the means used to achieve that
goal are proportionate to its ends.
91

Moreover, the factors relevant to the European Courts determination that
BiH no longer has a justification for discrimination in Sejdic and Finci are relevant
to analysis of the census form as well. In Sejdic and Finci, the court held that BiH
had no objective and reasonable justification for state-sponsored discrimination,
due to the following factors: the positive developments toward peace in BiH since
1995; the ability to structure power-sharing in a way to include Others; BiHs
own goals for EU accession; and BiHs experience with amending its Constitution
in 2009.
92
Indeed, the Court cited a 2009 report on BiH prepared by the European
Commission which noted that although discrimination in the Constitution and
Election Law was necessary to establish peace in BiH, its racially discriminatory
roadblocks have stymied, rather than facilitated, political growth and BiHs
progress towards joining the EU.
93
The Court also observed that BiHs candidacy
for EU and NATO membership resulted in positive advancements for the country,
and that BiHs decision to become a member of the Council of Europe as well as
its expressed desire to join other European groups illustrates its willingness to
abide by Europes human rights standards.
94
The Court also cited a 2005 Venice
Commission report that described various alternatives to BiHs current political

89
90
Kuric and Others v. Slovenia, European Court of Human Rights, para. 388 (2012), Thlimmenos v. Greece,
European Court of Human Rights, para. 44 (2000).
91
92
93
European Commission, Bosnia and Herzegovina 2009 Progress Report, SEC(2009) 1338, 7-8 (Oct. 14, 2009),
available at http://ec.europa.eu/enlargement/pdf/key_documents/2009/ba_rapport_2009_en.pdf.
94
Sejdic and Finci v. Bosnia and Herzegovina, European Court of Human Rights 1, 26-27 (2009).

20
system that could effectively manage the state while sharing powers amongst the
states ethnic populations.
95

The factors considered in Sejdic and Finci apply to the census form as well
because of relationship between constitutional reform and the census. The right to
be free from discrimination with regard to elections is directly connected to the
right to be free from discrimination with regard to the census in BiH. Minorities
and non-constituent peoples are currently denied the right to participate in public
life, and formalizing their status as minorities in the census puts them at risk of
further marginalization and limits their opportunities to engage in BiH as citizens.
96

Furthermore, the data obtained from the census could be used in the constitutional
reform process to support proposals that continue to exclude minorities and
individuals who do not identify with the constituent peoples.
97
Because the factors
set forth in Sejdic and Finci are still relevant for BiH, the Bosnian government
does not have a reasonable or objective justification for treating minorities
differently on its census form.

Though BiH has not offered a reasonable objective justification for the
differential treatment of minorities and non-constituent persons, as explained
above, the European Courts analysis of BiHs inability to provide a justification
for state-sponsored discrimination in Sejdic and Finci likely applies in this case as
well. Therefore, the questions pertaining to ethnicity, religion and language in the
census form are likely discriminatory under both BiH and European law.

Conclusion

The census form accompanying BiHs new Law on the Census contains
questions on ethnicity/nationality, religion and mother language, and provides pre-
filled answers for the constituent peoples while providing a short write-in option
for minorities and citizens who do not identify with the constituent peoples. This
differential treatment is likely discriminatory under both BiH and European law.
The BiH Law on Prohibition of Discrimination forbids the government from
favoring one group of citizens without a reasonably and objective justification.

95
European Commission for Democracy Through Law, Opinion on the Constitutional Situation in Bosnia and
Herzegovina and the Powers of the High Representative, CDL-AD(2005)004 (March 11, 2005), available at
http://www.venice.coe.int/docs/2005/CDL-AD(2005)004-e.pdf.
96
Advisory Council for Bosnia and Herzegovina, Concerns Over 2013 Census in BiH (last accessed Aug. 21, 2012),
available at http://www.acbih.org/wp/?p=2647.
97
Protecting Minorities in Bosnia The EU Has a Role to Play, HUMAN RIGHTS WATCH (Apr. 20, 2012), available
at http://www.hrw.org/news/2012/04/20/protecting-minorities-bosnia-eu-has-role-play.

21
Similarly, the European Convention on Human Rights, and the European Courts
reasoning in the Sejdic and Finci decision, requires that differential treatment
based on ethnicity, religion or language have a reasonable and objective
justification, and employ means proportionate to the goal sought. Given the
potential implications of the census form in solidifying ethnic divisions in BiH and
the improvements in BiHs political situation noted by the Venice Commission,
there is likely no reasonable and objective justification for this treatment. As a
result, the census form is likely discriminatory.

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