Page - 255 - in Austrian Law Journal, Volume 2/2015

ALJ 2/2015 Constance Grewe 255 Namely, there has been no constitutional amendment modifying the composition of the Presi- dency or of the House of Peoples. Likewise in spite of the manifold opinions given by the Venice commission in this sense, the electoral law has not been changed. In other words, the political and democratically legitimated authorities have refused to draw the practical consequences from the ECtHR case law.19 As to the Constitutional Court, it considered that it was up to the political power to make the necessary decisions. Yet several applications more or less linked to the discrimination problemat- ic were pending before the Court. There was in particular a request alleging the unconstitutionali- ty of the entities’ constitutions relating to the elections of the Presidents and vice-presidents in the entities.20 The allegations based on Art 1 Protocol 12 and Art 3 Protocol 1 in combination with Art 14 ECHR, were quasi identical to the Sejdić and Finci case with the only difference that they concerned the entities’ constitutions ant not the central one. While the request had been filed in November 2012 – which is already far from the ECtHR deci- sion – the Constitutional Court resigned itself only very recently at the end of March 2015, i.e. more than two years later, to decide on this case. In this judgment it admitted that the exclusion of the ‘Others’ amounted to an unjustified discrimination. Nevertheless, the Court’s reluctance to intervene can be seen in the fact that it does not impose any delay to the Parliaments for the implementation of its judgment: The hope is still that there would be a constitutional amend- ment obliging the entities in their turn. If it seems hence to be clear that the constituent peoples’ monopoly in the public decision making is at least contrary to the Convention, probably even to the Constitution (Art II (4) and Art X (2)), it is not sure that this idea would be followed in similar cases. In this regard, it will be very interest- ing to see how the Constitutional Court will decide in the pending case concerning the law im- plementing the stabilization agreement with the EU. The said law creates an independent State- aid Council where each constituent people but not the ‘Others’ must have at least one repre- sentative. A valid decision cannot be reached without the consent of at least one constituent people and with a majority of 5 out of 6 members. Likewise it is not evident that the Court would change its Rules of Court where the ethnic quotas are present either in the appointment procedure either in the regulations concerning the election of the Court’s President and Vice-Presidents. But even in societies that are not divided, such as France, diversity is source of conflict. B. French problems with the ‘living together’ It is true that the principle of assimilation finds a concrete legal transposition in the legislation concerning the French nationality. Most children issued from the second generation of immigra- tion obtain the French nationality. But the discriminations are not so much based on nationality than rather on color or home address – the famous suburbs of big cities: they are racial, social and economic. The periodical revolts in these suburbs are the sad testimony thereof. The other 19 For a more general overview, see Marko, Defective democracy in a failed state? Bridging constitutional design, politics and ethnic division in Bosnia-Herzegovina, in Ghai/Woodman (eds), Practising Self-Government. A Com- parative Study of Autonomous Regions (2013) 281 (281 et seqq). 20 CC, U 14/12, Discrimination in the Entities’ Constitutions.