Two Recent Strasbourg Judgments Against Bosnia and Herzegovina: Extending the Prohibition of Ethnic Exclusion in Access to Public Office

Introduction

The judgments delivered by the European Court of Human Rights on 3 February 2026 in Begić v. Bosnia and Herzegovina and Begić v. Bosnia and Herzegovina (No 2) represent another important development in the Court’s anti-discrimination jurisprudence concerning the constitutional order of Bosnia and Herzegovina.¹ In both cases, the Court found a violation of Article 1 of Protocol No. 12 on account of the applicant’s ineligibility to stand for public office because he did not declare affiliation with one of the constitutionally recognised „constituent peoples“. In the first case, the impugned restriction concerned the offices of Chair and Deputy Chairs of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina; in the second, it concerned the offices of President and Vice-Presidents of the Federation of Bosnia and Herzegovina.

These judgments are significant for at least three reasons. First, they confirm the continued centrality of Article 1 of Protocol No. 12 as the principal Convention mechanism for challenging ethnic exclusion from public office in Bosnia and Herzegovina. Secondly, they demonstrate that the Court’s concern is no longer confined to the well-known issues surrounding the State Presidency and the House of Peoples, but extends to other institutional sites in which ethnic identity operates as a legal condition of eligibility. Thirdly, they strengthen the doctrinal basis for arguing that comparable restrictions elsewhere in the constitutional structure of Bosnia and Herzegovina, including those relating to the President and Vice-Presidents of Republika Srpska, would be difficult to reconcile with Convention standards.

In that sense, the message from Strasbourg is becoming increasingly difficult to ignore. What began in Sejdić and Finci as a challenge to emblematic structures of exclusion has now evolved into a broader judicial scrutiny of the constitutional logic that underpins access to public office in Bosnia and Herzegovina.²

I. Begić v. Bosnia and Herzegovina: the leadership of the House of Representatives and the reach of Article 1 of Protocol No. 12

In Begić v. Bosnia and Herzegovina, the applicant complained that he had been prevented from standing for election to the offices of Chair and Deputy Chairs of the House of Representatives because the constitutional scheme required that those positions be occupied by one Bosniac, one Croat and one Serb. As a person who did not declare affiliation with any constituent people and therefore belonged to the category of „Others“, he was excluded by operation of law; indeed, although he was nominated, his candidature was not even put to a vote. The Court considered that this constituted differential treatment of persons in analogous situations on the ground of ethnicity.

A particularly important aspect of the judgment is the Court’s approach to the applicability of Article 1 of Protocol No. 12. It reiterated that, unlike Article 14 of the Convention, Article 1 of Protocol No. 12 extends protection against discrimination to „any right set forth by law“. Since Article II(4) of the Constitution of Bosnia and Herzegovina secures, without discrimination, the right to participate in the conduct of public affairs, the Court had little difficulty in finding that the case fell within the ambit of that provision.

The Court’s reasoning is firmly rooted in its earlier case-law. It recalled that similar constitutional provisions governing eligibility for the House of Peoples and the Presidency had already been found discriminatory in Sejdić and Finci and Zornić, and it saw no reason to depart from that jurisprudence in the present context.³ The fact that the offices at issue in the instant case may have been institutionally less powerful than those examined in earlier judgments did not alter the anti-discrimination analysis. The decisive fact remained that the applicant was excluded from eligibility solely because he did not belong to one of the favoured ethnic categories.

The doctrinal importance of this judgment therefore lies not merely in its outcome, but in the Court’s unwillingness to limit Convention scrutiny to a closed list of previously litigated institutions. The judgment signals that the constitutional problem in Bosnia and Herzegovina is not reducible to one or two exceptional offices. Rather, the problem is structural: ethnic identity continues to function as a gatekeeping device across multiple layers of public authority.

II. Begić v. Bosnia and Herzegovina (No 2): distinguishing Article 3 of Protocol No. 1 from Article 1 of Protocol No. 12

The second judgment, Begić v. Bosnia and Herzegovina (No 2), concerned the applicant’s inability to stand for election to the offices of President and Vice-Presidents of the Federation of Bosnia and Herzegovina. His nomination, submitted by delegates belonging to the category of „Others“, was rejected because he had not been nominated by delegates from the constituent peoples’ caucuses and because he himself did not declare affiliation with any of the constituent peoples.

From a doctrinal perspective, the most interesting feature of this judgment is the Court’s careful distinction between the scope of Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12. With regard to the former, the Court held that the offices of President and Vice-Presidents of the Federation could not be regarded as part of the „legislature“ within the meaning of Article 3 of Protocol No. 1. It reiterated that this provision applies to the choice of the legislature and only exceptionally to presidential elections where the office in question has legislative powers of a sufficiently strong kind. In the present case, legislative authority in the Federation was exercised by Parliament, not by the President or Vice-Presidents, and the Court agreed with the Constitutional Court of Bosnia and Herzegovina that Article 3 of Protocol No. 1 was therefore inapplicable.

That conclusion, however, did not weaken the applicant’s Convention claim. On the contrary, the Court went on to find a violation of Article 1 of Protocol No. 12, relying on the same core anti-discrimination standard that has informed its earlier case-law. It reiterated that the meaning of „discrimination“ under Article 1 of Protocol No. 12 is intended to be identical to that under Article 14 of the Convention. A difference in treatment between persons in analogous or relevantly similar situations is discriminatory if it lacks an objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.

Crucially, the Court also reaffirmed that discrimination on grounds of ethnic origin is a particularly serious form of discrimination and that the notion of objective and reasonable justification must therefore be interpreted with particular strictness. It explicitly recalled its established position that no difference in treatment based exclusively, or to a decisive extent, on ethnic origin can be objectively justified in a contemporary democratic society founded on pluralism and respect for different cultures. On that basis, and in line with the prior decision of the Constitutional Court of Bosnia and Herzegovina, it concluded that the applicant’s exclusion from candidacy for the presidency of the Federation lacked an objective and reasonable justification.

This part of the judgment is especially important because it illustrates the autonomous and independent force of Article 1 of Protocol No. 12. Even where a complaint cannot be accommodated within the more specific electoral guarantee of Article 3 of Protocol No. 1, the general anti-discrimination guarantee remains capable of exposing exclusionary constitutional arrangements to Convention review.

III. Continuity and development in the Court’s Bosnia and Herzegovina jurisprudence

The two Begić judgments should be read as part of a broader line of Strasbourg authority concerning Bosnia and Herzegovina’s post-Dayton constitutional order. Yet they also make a distinct contribution. Earlier cases such as Sejdić and Finci, Zornić and Pilav established that the exclusion of persons who do not fit within the dominant ethno-territorial framework is incompatible with Convention standards.⁴ The Begić judgments extend that reasoning into additional institutional contexts and thereby reveal more clearly the systemic breadth of the problem.⁵

In this respect, the judgments do not merely repeat existing doctrine. They demonstrate the continuing capacity of Article 1 of Protocol No. 12 to reach discriminatory restrictions embedded in institutional design beyond the most obvious headline examples. The effect is cumulative. Each new judgment makes it increasingly difficult to maintain that the discriminatory elements of Bosnia and Herzegovina’s constitutional framework are isolated anomalies. Rather, a number of institutions remain infected by them, in the sense that eligibility for public office is still conditioned on constitutionally privileged ethnic self-identification.

This has broader constitutional implications. The post-Dayton model has often been defended as a peace-preserving structure of group accommodation. The Court does not deny the historical relevance of that context. However, its jurisprudence increasingly suggests that the peace-settlement origin of a constitutional arrangement cannot indefinitely supply its normative justification. At some point, an originally transitional compromise ceases to function as a persuasive explanation and begins instead to operate as a constitutional alibi for the preservation of discriminatory exclusions that are incompatible with contemporary standards of democratic equality.

IV. The implications for Republika Srpska

One of the most consequential aspects of Begić (No 2) lies not only in what it decided, but in what its reasoning strongly supports. If exclusion from standing for the offices of President and Vice-Presidents of the Federation of Bosnia and Herzegovina on ethnic grounds violates Article 1 of Protocol No. 12, then analogous restrictions concerning the President and Vice-Presidents of Republika Srpska should be subjected to the same form of scrutiny.

This conclusion does not require any strained analogy. The central legal proposition in Begić (No 2) is that where domestic law confers access to an important public office, exclusion from candidacy solely on grounds of ethnic affiliation, or non-affiliation, must satisfy the stringent test of objective and reasonable justification. Given the Court’s insistence that distinctions based on ethnicity require especially weighty reasons and are to be reviewed with particular strictness, it is difficult to see how similar restrictions in Republika Srpska could readily survive Convention analysis.

The point may be stated cautiously but clearly: the reasoning in Begić (No 2) strongly supports the view that comparable ethnic restrictions affecting the presidency of Republika Srpska would face serious difficulty under Article 1 of Protocol No. 12. Any future reform discussion that addresses only the Federation, while ignoring equivalent exclusionary effects elsewhere in Bosnia and Herzegovina, would therefore remain normatively incomplete.

V. Beyond diagnosis: possible reform directions

A purely descriptive reading of the two judgments would be insufficient. They also invite reflection on possible constitutional responses. At a minimum, three reform directions merit consideration.

First, eligibility rules for public office should be reformulated so that they no longer make declared affiliation with one of the constituent peoples a legal precondition for candidacy. The Court’s case-law does not prohibit all forms of power-sharing, but it does make clear that group accommodation cannot be pursued through absolute exclusion of those who fall outside preferred constitutional categories.

Secondly, Bosnia and Herzegovina should move from a model of representation based on ethnic monopoly toward one based on inclusive pluralism. This need not entail the immediate abolition of all mechanisms designed to ensure institutional balance. It does, however, require that such mechanisms be redesigned in a manner compatible with equal access to public office. Rotation formulas, qualified-majority rules, veto-limiting safeguards, or other devices aimed at preserving equilibrium may be explored, provided they do not amount to ethnicity-based ineligibility.

Thirdly, reform should be pursued comprehensively rather than selectively. The Strasbourg jurisprudence now reaches the State level, the Federation level, and – by necessary implication – casts doubt on analogous exclusionary arrangements in Republika Srpska. Piecemeal reform may reduce immediate political pressure, but it will not resolve the underlying Convention problem.

Conclusion

The two Begić judgments deepen the Strasbourg critique of Bosnia and Herzegovina’s ethnically restrictive constitutional arrangements. Their importance lies not only in the finding of violations, but in the judicial clarification of principle: Article 1 of Protocol No. 12 applies wherever domestic law grants access to public affairs or public office, and ethnic exclusion from such access requires exceptionally strong justification that Bosnia and Herzegovina’s current arrangements have repeatedly failed to provide.

These judgments therefore mark another stage in the gradual dismantling, through adjudication, of the assumption that constitutional legitimacy in Bosnia and Herzegovina may continue to rest on categorical ethnic exclusion. The Court has not denied the complexities of the country’s constitutional history. What it has increasingly denied is that those complexities can serve indefinitely as a lawful basis for maintaining discriminatory rules. For that reason, the message from Strasbourg is becoming increasingly difficult to ignore: the future of constitutional reform in Bosnia and Herzegovina cannot lie in the indefinite preservation of identity-based barriers to candidacy, but in the construction of institutions in which political participation is secured on genuinely equal terms.

1. Begić v. Bosn. & Herz., App. No. 5067/23 (Eur. Ct. H.R. Feb. 3, 2026); Begić v. Bosn. & Herz. (No. 2), App. No. 16613/23 (Eur. Ct. H.R. Feb. 3, 2026).
2. See Sejdić & Finci v. Bosn. & Herz., App. Nos. 27996/06 & 34836/06, §§ 43–56 (Eur. Ct. H.R. Dec. 22, 2009).
3. Sejdić & Finci, App. Nos. 27996/06 & 34836/06, §§ 50, 56; Zornić v. Bosn. & Herz., App. No. 3681/06, §§ 32, 36 (Eur. Ct. H.R. July 15, 2014).
4. Sejdić & Finci, App. Nos. 27996/06 & 34836/06, §§ 43–56; Zornić, App. No. 3681/06, §§ 32, 36; Pilav v. Bosn. & Herz., App. No. 41939/07, §§ 42–52 (Eur. Ct. H.R. June 9, 2016).
5. Begić, App. No. 5067/23, §§ 53–55; Begić (No. 2), App. No. 16613/23, §§ 52–53.