Page - 252 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Diversity: Beyond Recognition in Bosnia and Refusal in France 252 Here, the Court had to decide what status the constituent peoples had within the two entities. The Court concluded that the entities were not to be equated with the territory of a particular constituent people, and that the three constituent peoples enjoyed equal collective rights in both entities.6 While the Constitutional Court certainly wished to balance ethnic and civic elements in this case, subsequent developments cast doubts on the success and the solidity of this jurispru- dence. The principle of equality of the constituent peoples could not prevent the increasing eth- nic homogenization of the entities.7 So the Court invalidated later on the municipal status of the city of Sarajevo for the reason that it conferred privileges, such as a guaranteed minimum repre- sentation, only to some and not to all constituent peoples.8 In other instances, the Court had to annul entity coats of arms, hymns and flags, which constitute important symbolizations of collec- tive identity, because they did not represent all ethnic groups9 or to quash the ethnically colored names of towns and municipalities.10 Hence it can be observed that the ethnic element takes an increasing place in the constitutional order that is favored by the territorial organization, the electoral system, the ethnic quotas in central institutions and the veto-mechanism. The specific interconnection of territoriality and ethnicity in BiH raises serious problems with regard to the right to stand for elections and democratic equality. The election rules concerning the House of Peoples and the Presidency imply that those who do not identify themselves as a member of one constituent people cannot be elected at all to either organ. These arrangements have been contested several times before the Constitutional Court11 and eventually before the ECtHR. The Constitutional Court rejected the complaints essentially for reasons of normative hierarchy. In the landmark Sejdić and Finci case handed down in 2009,12 the Grand Chamber of the ECtHR ruled on an application by Bosnian citizens who identified themselves as members of the Jewish and Roma communities and were therefore totally excluded from the House of Peo- ples and the Presidency. The Court held that the exclusion of non-constituent peoples amounted to a violation of the non-discrimination principle. It did not accept the argument that the restora- tion of peace still justified such specific power sharing more than a decade after the civil war ended. This underlines that the margin of appreciation, which the Court generally leaves to states in electoral matters, is limited when it comes to discrimination on ethnic grounds. Although the ECtHR stated that the exclusion of the ‘Others’ and not the power sharing as such was called into question, BiH has not yet implemented this judgment until today. In France, the scope of recognized diversity is still more restricted since the principle is here the denial of diver- sity or the indifference of the latter. 6 Maziau, Le contrôle de constitutionnalité des Constitutions de Bosnie-Herzégovine, RFDC 2001, 195 (195). 7 For more details, see Grewe/Riegner, Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia- Herzegovina and Kosovo Compared, in Bogdandy/Wolfrum (eds), Max Planck Yearbook of United Nations Law (2011) 1 (17 et seqq). 8 CC 22. 4. 2005, U 4/05, Statute of the city of Sarajevo. 9 CC 31. 3. 2006 and 18. 11. 2006, U 4/04, Flags, Coats of arms and anthems of the Entities as well on official holidays. 10 CC 27. 2. 2004, U 44/01, Names of towns. 11 CC 28. 2. 2005, AP 35/03, Elections to the House of people, dissenting opinion judge Grewe; CC 31. 3. 2006, U 5/04, Elections to the Presidency and the House of Peoples; CC 26. 5. 2006, U 13/05, Electoral Law, dissenting opinions of judges Feldmann, Palavric and Grewe. 12 See above footnote 1.