Congress Contribution to Re-Establishing Local Elections In

38th SESSION

Report CPL38(2020)02prov 19 February 2020

Congress contribution to re-establishing local elections in Mostar in view of the October 2020 general local elections in Bosnia and Herzegovina (Congress Mission to BiH, 26 and 27 November 2019)

Committee on the Honouring of Obligations and Commitments by Member States of the European Charter of Local Self-Government (Monitoring Committee)

Rapporteur:1 Robert-Csongor GRUMAN, Romania (L, EPP/CCE)

Draft recommendation (for vote) ...... 2 Draft resolution (for vote) ...... 3 Explanatory memorandum (for information) ...... 4

Summary

Following the October 2019 judgment of the European Court of Human Rights, in favour of the applicant in the case of BARALIJA vs. Bosnia and Herzegovina (BiH), the Congress carried out a mission to Sarajevo and Mostar from 26-27 November 2019.

The Strasbourg Court imposed a six-month period within which BiH’s Parliamentary Assembly is expected to amend the constitutional provisions of Mostar’s 2001 Electoral Act. The delegation met with interlocutors and stakeholders to assess the situation and made clear the Congress’ commitment to all action oriented towards re-establishing the local election in Mostar in accordance with the timeframe of general local elections in Bosnia and Herzegovina, expected in October 2020.

In addition to the close monitoring of the situation of local democracy in the City of Mostar, the Congress will implement a cooperation project in 2020 and 2021 aimed at strengthening citizen participation in Mostar, in particular, through community consensus building, deliberative democracy processes and stakeholder deliberation.

1 Chamber of Local Authorities / R: Chamber of Regions EPP/CCE: European People’s Party Group in the Congress SOC/G/PD: Group of Socialists, Greens and Progressive Democrats ILDG: Independent Liberal and Democratic Group ECR: European Conservatives and Reformists Group NR: Members not belonging to a political group of the Congress

Tel ► +33 (0)3 8841 2110 Fax ► +33 (0)3 9021 5580 [email protected]

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DRAFT RECOMMENDATION2

The Congress of Local and Regional Authorities of the Council of Europe, confirming its readiness to continue supporting all efforts in order to organise free and fair elections on the whole territory of Bosnia and Herzegovina,

1. Referring to the 29 October 2019 European Court of Human Rights decision on the case of BARALIJA vs. Bosnia and Herzegovina, (application No. 30100/18), and its judgment of the violation of Article 1 of Protocol No. 12 “General prohibition of discrimination”;

2. Noting that the Court imposed a six-month time frame on the Parliamentary Assembly of Bosnia and Herzegovina to agree on a solution, after which failure of compliance would result in the intervention of the Constitutional Court of Bosnia and Herzegovina, who would then be obliged to impose interim measures, authorising a local election in Mostar;

3. Underlining Parliamentary Assembly Resolution 1226(2000)3 on the Execution of judgments of the European Court of Human Rights, whereby “governments should take the necessary action to execute the Court’s judgments in order to avoid any recurrence of violations”;

4. Welcomes the adoption of the judgment of the European Court of Human Rights, which recognised applicant Irma BARALIJA’s claims of general discrimination based on the consideration that she had not been allowed to stand in, or vote in local elections in her home town for more than a decade, due to a legal loophole;

5. Calls upon the Committee of Ministers of the Council of Europe to comply with their formal undertaking of supervising the implementation of final judgments of the Court (Resolution 1226(2000), and provide assistance to Bosnia and Herzegovina, if necessary, to ensure full compliance;

6. Urges the Parliamentary Assembly of Bosnia and Herzegovina to: a. acknowledge the judgment, whereby the Court “considers that the State has failed to fulfil its positive obligations to adopt measures to hold democratic elections in Mostar”; and b. implement the ruling “of amending the Election Act 2001 within six months. Should the State fail to do so, the Court notes that the Constitutional Court, under domestic law and practice, has the power to set up interim arrangements as necessary transitional measures.”

2 Preliminary draft recommendation approved by the Monitoring Committee on 11 February 2020.

Members of the committee: L. VERBEEK (Chair); H. AKGUN; L. ANSALA; V. ARQUES CORTES; N. BARBU; C. BAS; V. BELIKOV; B. BELIN; G. BERGMANN; H. BERGMANN; M. BERNTSSON; K. BILLE; A. BINDI; Z. BROZ; M. BUFI; T. BUYUKAKIN; X. CADORET; V. CASIAN; M. CAVARA; P. CEGONHO; G. CHATZIMARKOS; M. COOLS; J. CROWE; V. CRUDU; S. DICKSON (alternate: S. CHARLES) ; N. DIRGINCIENE; A. DISMORE; R. DODD; S. DOGUCU; D. ERAY (alternate: L. WEHRLI); R. FEJSTAMER; M. FENECH ADAMI; L. GARLITO BATALLA; M. GAUCI; G. GEGUZINSKAS; A.G. GEORGESCU; K. GERMANOVA; L.V. GIDEI; M. R. GOMES DE ANDRADE; B.A. GRAM; N. GROZEV; I. HANZEK; Z. HASSAY; G.M. HELGESEN; B. HIRS (alternate: M. HOLLINGER); J. HLINKA; B. HORDEJUK; M. H. HOURIGAN; V. HOVHANNISYAN; A. IBRAHIMOV; G. ILLES; A. JOZIC; K. KALADZE; A. KALEVA; G. KAMINSKIS (alternate: H. ROKPELNIJS); O. KASURI; M. KAUFMANN; N. KAVTARADZE; B. KERIMOGLU; J-P. KLEIN; A. KNOBOVA; J. KOKKO; C. LAMMERSKITTEN; A. LEADBETTER; F. LEC; J-P. LIOUVILLE; K. T. MAGNUSSON; A. MAGYAR (alternate: A. ACSAY); P. MANGIN (alternate: J-M. BELLIARD); K. MARCHENKO; G. MARSAN; O. MELNICHENKO; R. MONDORF; S. MOSHAROV; D. PANTANA; V. PASQUA; G. PAUK; S. PAUNOVIC; M-L. PENCHARD; V. PREBILIC; V. PROKOPIV; P. PRYHARA; I. RADOJICIC; G. RIBA CASAL; J. ROCKLIND; R. ROHR; B. RUDKIN; S. SCHUMACHER; I. SEREDYUK; L. SFIRLOAGA; P. SMOLOVIC; A-M. SOTIRIADOU; R. SPIEGLER; Y. SVITLYCHNA; T. TAGHIYEV; T. TALIASHVILI; A. TARNAVSKI (alternate: T. BADAN); P. THORNTON (alternate: L. GILLHAM); K. TOLKACHEV; F. TRAVAGLINI; M. TURCAN; S. VAAG; V. VARNAVSKIY; R. VERGILI; D. VLK; B. VOEHRINGER; A. VYRAS (alternate: M. KOUKLIS); H. WENINGER; E. YERITSYAN; J. WIENEN; L. ZAIA; F. ZIMMERMANN.

N.B.: The names of members who took part in the vote are in italics.

Secretariat of the committee: S. POIREL, Secretary to the Committee and S. PEREVERTEN, co-Secretary to the Committee.

3 http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-en.asp?fileid=16834 2/8

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DRAFT RESOLUTION4

2. Noting that the Court imposed a six-month time frame on the Parliamentary Assembly of Bosnia and Herzegovina to agree on a solution, after which failure of compliance would result in the intervention of the Constitutional Court of Bosnia and Herzegovina, which would then be obliged to impose interim measures, authorising a local election in Mostar;

3. Underlining Parliamentary Assembly Resolution 1226(2000) on the Execution of judgments of the European Court of Human Rights, whereby “governments should take the necessary action to execute the Court’s judgments in order to avoid any recurrence of violations”;

5. Reiterates its commitment to all action oriented towards re-establishing the local election in Mostar in accordance with the timeframe of general local elections in Bosnia and Herzegovina;

6. In the instance of Constitutional Court mandated interim measures, confirms its readiness to continue supporting all actors in their immediate implementation as well as in view of long-term strategies by the respective authorities to ensure legal certainty;

7. Commits itself to further democracy building in Bosnia and Herzegovina through close monitoring of the situation of local democracy in the City of Mostar, through preparatory help and election observation of future local elections in Bosnia and Herzegovina and in Mostar. The implementation of the Congress’ co-operation project in 2020-2021 aims at strengthening citizen participation in Mostar, in particular, through community consensus building, deliberative democracy processes and stakeholder deliberation.

4 See footnote 2. 3/8

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EXPLANATORY MEMORANDUM

I. Introduction

1. In preparation for the projected local elections in Bosnia and Herzegovina (BiH) to take place in October 2020, and in light of the 29 October decision taken by the European Court of Human Rights (ECHR), concerning the fact that the City of Mostar has not held local elections in over a decade, the Congress organised a mission to BiH on 26 and 27 November 2019. Apart from the exchange of views with Irma BARALIJA, the ECHR applicant, the delegation held meetings in Sarajevo and Mostar with representatives of the international community, the BiH Parliament, the Constitutional Court as well as with political parties and civic society.

2. A Congress delegation composed of Vice-President Barbara TOCE (SOC, Italy), the Chair of the Governance Committee, Robert GRUMAN (EPP/CCE, Romania), as well as Congress members Violeta CRUDU (EPP/CCE, Republic of Moldova), Randi MONDORF (GILD-ILDG, Denmark), Rosaleen O’GRADY (GILD-ILDG, Ireland) and Vladimir PREBILIČ (SOC, Slovenia) visited Sarajevo and Mostar on 26 and 27 November, respectively. Ambassador Drahoslav ŠTEFÁNEK, Head of the Council of Europe Office in Sarajevo, attended all the meetings. The delegation was also accompanied by Nikola DOBROSLAVIĆ, member of the EU Committee of the Region’s Working Group on Western Balkans, his Senior Adviser Luka VIDAK and Milica NEACSU from the Secretariat of CIVEX.

3. The visit was part of a series of activities of the Congress, launched in 2017 and continued in 2018, in the frame of the joint Reflection Group between the Congress and the EU Committee of the Regions, regarding the situation in Mostar.

4. In Sarajevo, meetings took place with both the international community as well as some national institutions. Representatives from the OSCE, the European Union Delegation and the High Representative gave their respective insight on the political situation of the country, including the appointment of a Prime Minister, one year after general elections took place. The mentioned ECHR ruling regarding Mostar was also heavily discussed.

5. With respect to the institutions of Bosnia and Herzegovina, the Congress delegation visited the House of Representatives of the BiH Parliamentary Assembly, the Central Election Commission and the Constitutional Court.

6. ECHR applicant Irma BARALIJA spoke directly with the delegation in Mostar. Following this exchange, representatives of civic society and the political parties in Mostar joined the delegation for a presentation by Congress Expert Marcin GERWIN, who presented on innovative models of citizen participation and direct democracy, specifically Citizen’s Assemblies, and their potential benefit to a city such as Mostar. The presentation was followed by a discussion with the delegation, experts, civic society and representatives of political parties.

II. The general political context of the mission and recent developments in BiH

7. Following October 2018’s general elections, the BiH Government spent 13 months in a deadlock before a Prime Minister was elected, a week prior to the Congress mission. Bosnian Serb Zoran TEGELTIJA was set to form the Government in December, arguably the most difficult undertaking after these elections.

8. In order to put an end to the war of the 90’s, the US brokered a peace deal (mainly, the so-called Dayton Agreement), installing a complicated network of overarching institutions, including the tripartite Presidency, a Council of Ministers — the country's de facto Government — as well as multiple assemblies. For the national Government to be formed, politicians from the three ethnic groups (Bosniaks, Croats, Serbs) must come to a joint decision on the division of ministries and policies.

9. At the center of the governmental deadlock was the State’s negotiations with NATO. Since 2010, BiH has been part of NATO’s Membership Action Plan (MAP), a necessary first step, and in 2018 NATO green lit their possibility to advance further. The Serb member of the tripartite Presidency of BiH, Milorad DODIK, would accept EU accession but not NATO. In order to appoint Zoran TEGELTIJA, DODIK had

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CPL38(2020)02prov to concede to the other two members of the Presidency and send a document to Brussels that would essentially begin further talks with NATO. There is a division among the citizens of Bosnia and Herzegovina regarding the country’s accession to NATO.5

10. Prior to the war in Bosnia and Herzegovina, Mostar was an exemplary multi-ethnic place. In 1993 and 1994, the “war within a war”, between Bosniaks and Croats, saw the frontline running through the middle of Mostar. Today, it remains a divided city with Western parts (predominantly inhabited by Croats) and the Eastern quarters (by Bosniaks). Immediately after the war, a special Statute for the City was brokered by the International Community and agreed upon in Rome in 1996.

11. Further to the 2004 Interim Statute established at that time (recognising 6 separate and autonomous municipalities, 3 Croat and 3 Bosniak communes), a new Statute for the City of Mostar was imposed by High Representative Paddy ASHDOWN which transformed the former six municipalities into six electoral districts for a single City Council, providing guarantees against outvoting and for defending vital interests. The city has remained fundamentally divided along territorial and ethnic lines, even after the first elections held in 2004. Most utilities remain divided and often lack consensus among the parties resulting in obstacles to implementation. In essence, everything in Mostar is divided into two; one for Bosniaks and one for Croats. Mostar has two school curricula, two bus companies, two football teams, two post offices and two taxi companies.6

12. In 2010, the Caucus of Croat People in the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina filed a case before the Constitutional Court of Bosnia and Herzegovina with regard to the electoral law (Election Act 2001), the Constitution of the Federation of Bosnia and Herzegovina (FBiH) and the Statute of the City of Mostar, on the ground that the electoral system of the city discriminated against voters residing in the “Central Zone” of Mostar, Croats in particular.

13. The Constitutional Court ordered the Parliamentary Assembly of Bosnia and Herzegovina to amend the unconstitutional provisions of the Election Act within six months. It also asked the Mostar City Council to bring the Statute of the City of Mostar into line with the Constitution of Bosnia and Herzegovina within three months. Neither party complied with these orders forcing the Constitutional Court to adopt a ruling on non-enforcement thus rendering the provisions of the Election Act 2001 no longer legal. This created a legal loophole in Mostar where elections could not be held in 2012 and 2016.

14. Acting Mayor (Croat), Ljubo BEŠLIĆ, lacking democratic legitimacy and accountability since 2012, manages the ordinary affairs of the city on the basis of a “technical mandate” together with the Head of Finance (Bosniak), Izet SAHOVIĆ, a civil servant. However, new projects and urban planning cannot be adopted.

III. The case of BARALIJA versus Bosnia and Herzegovina

15. Irma BARALIJA, the applicant, lodged a complaint before the European Court of Human Rights in Strasbourg in June 2018 relying on Article 1 of Protocol No. 12 of the Convention (general prohibition of discrimination), alleging that by not enforcing the Constitutional Court’s 2010 decision to amend the Election Act, the State has prevented her from voting or standing in local elections, amounting to discrimination on the grounds of her residence.

16. The Government of Bosnia and Herzegovina suggested that there was justification for the delay, as the implementing the Constitutional Court’s decision depended on creating a long-term and effective power-sharing mechanism (which does not function properly) and needed to facilitate dialogue and maintain peace.

17. However, the European Court of Human Rights, by its decision dated 29 October 2019 of Application No. 30100/18, ruled in favour of the applicant, suggesting that they could not accept the Government’s statement that reaching a political agreement to establish a power-sharing mechanism was too difficult in Mostar. Consequently, it ruled that the State failed to comply with its duty to take the

5 A survey carried out in 2018 by the International Republican Institute’s (IRI) Center for Insights in Survey Research from Bosnia and Herzegovina (BiH) suggests that while most respondents are supportive of key transatlantic institutions, many are also in favour of cooperating with Russia on security interests, and do not think the U.S. should play a role in European security. 6 http://www.conflictincities.org/Mostar.html 5/8

CPL38(2020)02prov appropriate measures to protect the applicant from discriminatory treatment by not holding democratic elections for over a decade.

18. The ECHR gave the State (Parliament of Bosnia and Herzegovina) six months in which to amend the Election Act 2001, thus enabling local elections in Mostar. In the case the State fails to do this, the Strasbourg Court noted that the Constitutional Court of Bosnia and Herzegovina had the power to set up interim arrangements. The next general local elections in BiH are due for October 2020.

19. Ms BARALIJA addressed the Congress delegation in Mostar, stating that her decision to take her case to the Strasbourg Court was met with death threats, attacks on her family members and their business, and likely why she was terminated from her position as a teacher in the local school. However, she was able to rely on the local media circuit to protect her to a certain extent, claiming that the sheer idea of her calling a media outlet while she was being harassed was enough to stop the attacker from continuing.

IV. Review of previous court rulings and electoral reform relevant to Mostar

20. Over the last ten years, various judgments on electoral matters of the Constitutional Court of BiH and of the European Court of Human Rights (ECHR) have affected the legitimacy and validity of electoral rules for Mostar as well as other levels of government in BiH leading to conditions when it comes to finding a solution for Mostar.

21. In 2010, the Constitutional Court declared some provisions of the Mostar City Statute unconstitutional, due to the limitations for voters in the Central Zone and the unequal value of votes. The election of three Councillors for each zone, independent from the number of registered voters, was seen in contrast with the strong differences in the number of registered voters among the zones. The Constitutional Court asked the legislator to amend legislation within six months, but this did not happen which is why elections were not held in 2012 and 2016.

22. In the LJUBIĆ case of 2016, the Constitutional Court declared ethnic quotas in the election to the House of Peoples of BiH unconstitutional and annulled them, because of a distortion of the right of representation of the Constituent Peoples (each Constituent People had been represented in the House of Peoples of the Federation of Bosnia and Herzegovina by one member for each Canton, independently from the numbers of voters in the respective Canton). No alternative or interim solutions have been provided by the Constitutional Court.

23. Two judgments of the ECHR on electoral matters have significant impact on the electoral system in Mostar: In 2009, in the case SEJDIĆ and FINCI vs. Bosnia and Herzegovina, the ECHR found that restrictions in eligibility rights requiring affiliation with one Constituent People are discriminatory and violate the rights of “Others”.7 The question of how to consider “Others” within a system based upon ethnicity without violating individual rights to vote and to stand for election is fundamental for any reform of the current system in Bosnia, at all levels.

24. In 2016, in the case Ilijaz PILAV v. Bosnia and Herzegovina resulted in the ECHR adding that restrictions in eligibility rights due to residency are also discriminatory (a Bosniak, resident in Republika Srpska (RS), could not stand for candidacy as Bosniak member of the BiH Presidency, and as a result was excluded as RS only votes for the Serb candidate to become Serb member of the BiH Presidency).

25. However, up until now, none of the above judgments has been implemented. Nevertheless, general elections were held in 2014 and, most recently, also cantonal elections on 7 October 2018, despite the continuous violation of voting rights of some citizens. In Mostar, the legal vacuum created by the two judgments of the Constitutional Court, makes reforms of the electoral system necessary before new local elections can be held.

7 Defined under the constitutional nomenclature, “Others” refers to Jews, Roma, Poles, Ukrainians and Turks, and all other people who do not self-identify as Bosniak, Serb or Croat. 6/8

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V. Summary of Congress meetings held in Sarajevo and Mostar (26 and 27 November 2019)

26. During the meetings in Sarajevo, the delegation met with representatives of international institutions to gain better understanding of the political situation in the country, and, in particular, in the Federation of Bosnia and Herzegovina with a special focus on Mostar. Representatives from the OSCE, the European Union Delegation, the Council of Europe Office in Sarajevo and the Office of the High Representative gave their respective insight on the political situation, specifically pinpointing the lack of an operating Government for over a year as well as the appointment of a Prime Minister.

27. The delegation also visited the House of Representatives of the BiH Parliamentary Assembly, the Central Election Commission and the Constitutional Court. Deputy Speaker of the House of Representatives Nebojsa RADMANOVIC discussed Mostar, suggesting previous ECHR decisions have not been upheld and that there was an attempt made in April 2018 to change election law in Mostar leading up to the Cantonal and Presidential elections, which failed. He implied that the international community should focus on two-fold assistance including acquisition of equipment for ballot stations and training for staff.

28. Branko PETRIC, President of the Central Election Commission, assured the delegation that elections in Mostar could also happen at a later date, to accommodate the legally necessary 6-month preparatory timeframe after an election is called. The CEC is awaiting the appropriate legislation to be put in place by the Government before organising elections in Mostar. Without the said legislation, the CEC is unable to push forward the Mostar agenda as they see fit. Essentially in the case of Mostar, there are only four potential options, as seen by the Central Electoral Commission:  the BiH Parliamentary Assembly to work on the election law;  the Parliamentary Assembly of BiH to use the powers of Art. 2.9. of the election law and authorise the CEC to resolve the issue; the Federation Parliament to adopt an election law on Mostar;  the BiH Constitutional Court to call for an ad-hoc solution;  to draw power from the Dayton Peace Agreement – CEC would then be responsible for all elections in BiH.

29. The President of the Constitutional Court, Zlatko KNEZEVIC, was clear that given the ruling of the ECHR, and in the case that the Parliamentary Assembly of BiH does not adopt the appropriate changes to the law within the required six months, the Court would step in with interim measures. This could entail pushing Mostar elections to March 2021, as changes to the electoral law should not take place in the same calendar year as elections. Pressure needs to be placed on the Parliamentary Assembly, scheduled to be formed in December 2019, to act appropriately in the name of Mostar.

30. Following the discussion with the applicant Irma BARALIJA in Mostar, the delegation was then joined by local representatives of political parties and civic society to take part in an expert presentation on deliberative democracy, in particular Citizens’ Assemblies (CA), by Marcin GERWIN.”8

31. Marcin GERWIN spoke to the idea of “a new form of democracy which allows to make decisions at city, national or even at the international level. A citizens’ assembly is a randomly selected group of residents according to the demographic criteria such as gender and age. It constitutes a city or a country in miniature.” Deliberative democracies, like CA’s, have been successfully used around the world, particularly in Ireland, Poland, Australia and Canada. They are effective because the participants are independent decision-makers; who come from different perspectives; all experience the same learning phase; all stakeholders are invited on equal ground; common good is at the heart of the process; and the conditions for deliberation are favourable. Marcin GERWIN also discussed the 12 basic standards that are required in order to organise a CA, including having skilled facilitators and the best experts to cover the topic at hand.

32. Marcin GERWIN looked toward new possible uses of direct democracy in Mostar. The presentation was followed by a dynamic and robust exchange of views. While NGO representatives saw the value in such a proposal, representatives of political parties were hard-pressed to see how it could function in a city like Mostar, where elections have not occurred in over a decade.

8 Congress Expert on deliberative democracy, co-founder of Sopot Development Initiative, engaged in direct democracy across Europe. His guides and extensive work can be found on his website “Citizens’ Assemblies: Democracy that works” https://citizensassemblies.org 7/8

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33. Congress Director, Jean-Philippe BOZOULS made sure to articulate that the Congress’ principle goal was to contribute to a solution in order to hold local elections in Mostar as soon as possible. He emphasised that Citizens’ Assemblies could be used as a guiding or supplementary tool to help Mostar achieve an election and keep the future elected government accountable.

34. The Congress remains aware of the difficult situation in Mostar and throughout Bosnia and Herzegovina. The political impasse that has blocked Mostar elections for over a decade needs to be overcome. The ECHR ruling is unlike the previous that have been decided, as the Parliamentary Assembly was given a short timeframe in which to change the electoral law with noted a stipulation being that the Constitutional Court will be required to step in should Parliament fail to accomplish this task.

35. In addition to the close monitoring of the situation of local democracy in the City of Mostar, with the aim of organising local elections within the timeframe for general local elections in Bosnia and Herzegovina, the Congress will implement a project cooperation in 2020 and 2021 to foster citizen participation at the local level, with a special focus on new tools for building consensus, notably deliberative models of participation.

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