This report urges that elected leaders be made directly responsible to all citizens, including minority groups, though it says that this constitutional change “should be the end goal of membership talks, not its precondition.” The report in turn suggests that the EU should withdraw their ultimatum that reform must be achieved before membership discussion resume.
The country's complex constitutional structure was established in 1995 by the Dayton Peace Accords, signed to bring an end to Bosnia's three-and-a-half year armed conflict. Currently, it requires that posts in two key institutions, the three-member presidency and the parliamentary House of Peoples, be equally divided among Bosniaks, Croats and Serbs. In 2009 the ECtHR ruled that this violates the European Convention on Human Rights by restricting the access of Bosnia's other ethnic groups.
However, the report warns of the dangers of attempting a constitutional shake-up, citing the “stinging” condemnation of the court's judgment by Judge Giovanni Bonello, a former judge of the ECtHR and saying that local leaders echo his warning against “challenging the status quo.” According to the report “re-balancing the compromises made in that agreement, and embarking on a comprehensive constitutional reform” will mean digging up highly emotional issues “buried since the end of the war in 1995,” risking “extending political paralysis” and even “state failure.”
The report's recommendations draw from the ECtHR's landmark ruling in the Sejdic-Finci case, and Bosnia and Herzegovina's shocking failure to implement the ruling. In fact, “the Council of Europe warns that neither it nor the EU would consider the 2014 elections for Bosnia's parliament legitimate without the necessary constitutional amendments” required by the case ruling. The plaintiffs were a Jew and a Roma who challenged the provisions of the constitution stipulating the president's ethnicity. Interestingly, although Croats in Bosnia and Herzegovina are technically eligible to run for the Presidency and the House of Commons, they are a minority group and are often marginalized. However, the report says, “their position is likely to get a new boost when Croatia joins the EU in 2013.” Even though it will be difficult for radical reform to preclude Bosnia and Herzegovina's own EU membership talks, the report says that “tension” between ethnic groups “has been growing for a decade and it is no longer sustainable.” According to the report, this tension must be resolved ASAP, “[the constitution] should adopt measures that: Clarify whether and how elected and appointed officials are responsible to specific groups, all citizens, or those who voted them into office; allow voters rather than mid-level officials to choose national leaders; give Croats an effective means of influencing state policy; provide room for those who identify as citizens rather than in ethnic terms to have a voice and avoid overly complex rules prone to obstruction.”