Specific aspects of the ECHR judgment in 'Kovačević vs Bosnia and Herzegovina'

 

Slaven Kovačević

Bosnia and Herzegovina is a country with a unique governance structure, established under the General Framework Agreement for Peace in Bosnia and Herzegovina, commonly referred to as the Dayton Peace Agreement[2]. This agreement comprises a core text of only a few pages and 11 annexes addressing various areas. Among these, Annex IV contains the new Constitution of Bosnia and Herzegovina, which was not the result of the democratic will of its citizens but was instead incorporated as an integral part of the General Framework Peace Agreement. It is important to emphasise that the Dayton Peace Agreement is, in essence, an international treaty, with its status defined by the Vienna Convention on the Law of Treaties, which was opened for signature in 1969 and entered into force in 1980. What makes this international treaty particularly unique is that it includes the very constitution of the state as one of its integral components.

Furthermore, it is crucial to underline that the Dayton Peace Agreement in its entirety, including the Constitution of Bosnia and Herzegovina as Annex IV, was drafted in the terminology of Anglo-Saxon law. This presents challenges for its implementation within the continental legal framework that predominates in Europe, including in Bosnia and Herzegovina.



Article 1 of the new Constitution of Bosnia and Herzegovina states: “The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be ‘Bosnia and Herzegovina,’ shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognised borders remaining unchanged…” This constitutional provision confirms the continuation of the legal existence of the former Republic of Bosnia and Herzegovina within its internationally recognised borders. However, the new Constitution does not specify the fundamental structure of the state. It can, therefore, be concluded that the state structure of the Republic of Bosnia and Herzegovina, which was a unitary state, was carried forward to ensure continuity of legal existence, while its modified internal structure now reflects a greater degree of decentralisation.

Moreover, the new Constitution of Bosnia and Herzegovina prioritises ethnic affiliation over civic representation, which is a cornerstone of democracy in all European Union countries as well as in the member states of the Council of Europe. In this respect, the first part of the Constitution of Bosnia and Herzegovina, which establishes the principles of state organisation, particularly regarding the protection of human rights and fundamental freedoms, contradicts and fails to align with the second part of the Constitution, which prioritises the distribution of political power among ethnic communities referred to in the Constitution as "constituent peoples." This gives rise to the first part of the problem, as several citizens of Bosnia and Herzegovina have filed applications with the European Court of Human Rights (ECHR), claiming that their human rights have been violated on the grounds that they lack passive voting rights or eligibility to stand for election to the Presidency of Bosnia and Herzegovina or the House of Peoples of Bosnia and Herzegovina, either because they do not belong to one of the three dominant ethnic communities or, even if they do, because their place of residence renders them ineligible for candidacy. The European Court of Human Rights has ruled in favour of the applicants in the following cases (in chronological order): Sejdić-Finci[3], Zornić[4], Pilav[5], Šlaku [6], and Pudarić[7], finding the existence of discrimination on the grounds of ethnicity and territorial origin. As a High Contracting Party to the Council of Europe, Bosnia and Herzegovina has been called upon to amend its Constitution to eliminate these discriminatory elements and to ensure that every citizen, regardless of ethnic affiliation, has the right to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (paragraph 43 of the Court’s judgment in Zornić). While this may appear a commendable initiative, the harsh political reality in Bosnia and Herzegovina cruelly disproves it.

There are various political elites in Bosnia and Herzegovina, most of whom originate from the ranks of ethno-nationalist political parties, who seek to relativise the implementation of these five judgments – intended to safeguard passive voting rights or the right to run for the Presidency and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina – to such an extent that they propose solutions ostensibly allowing these citizens and members of their groups to stand as candidates, while ensuring, through cleverly designed ethnic electoral districts, that their election becomes practically impossible. The international community plays a vital role in this context, as it must recognise these manipulative intentions and prevent them at the outset.

This brings us to the most recent judgment of the European Court of Human Rights in the case of Kovačević vs Bosnia and Herzegovina[8], in which the applicant sought protection of his active voting rights, specifically the right to vote for all candidates for the Presidency of Bosnia and Herzegovina and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. The ECHR ruled in favour of the applicant, finding that the current political system, which prioritises ethnic affiliation, imperils democracy and that Bosnia and Herzegovina should transition from a system of ethnic representation to a system of civic political representation. In this regard, when exercising active voting rights, a voter's ethnic affiliation cannot and must not be used, as this directly undermines democracy. This judgment has strongly resonated both domestically and internationally, as its implementation would require a complete overhaul of the entire political paradigm in Bosnia and Herzegovina.

The applicant, Slaven Kovačević, clearly emphasised the need for all voters to have the right to vote for all candidates for the Presidency of Bosnia and Herzegovina, as the collective head of state representing and acting in the interest of all residents of Bosnia and Herzegovina. He further explicitly argued that the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, as the upper chamber of the legislative body, lacks any electoral legitimacy. Specifically, he criticised the Federation of Bosnia and Herzegovina’s implementation of a seemingly dual indirect election system, which cannot be considered a genuine indirect election system, as it severs the connection with direct elections and, consequently, with the will of the voters.

Such a proposal is certainly unsuitable to ethno-nationalist political parties, as they thrive on the existence of discrimination and the abolition —or outright usurpation— of active voting rights to the point of proposing a system whereby ethnic Bosniaks vote exclusively for ethnic Bosniaks, ethnic Croats exclusively for ethnic Croats, and ethnic Serbs exclusively for ethnic Serbs, leaving all other citizens without meaningful voting rights. This directly undermines democracy in Bosnia and Herzegovina, establishing a system of ethnocracy. If such a system were applied in other countries, for instance in Slovenia or any other European state, would it imply that a legally and legitimately elected president does not represent those ethnic communities to which they themselves do not belong? Clearly, such a system is neither democratic nor applicable in democratic societies.

In this respect, the judgment in Kovačević vs Bosnia and Herzegovina holds particular significance, as its evident aim is to restore democracy in Bosnia and Herzegovina, despite resistance from ethno-nationalist circles. Alternatively, this issue could be approached from a different perspective.

A potential negative decision by the Grand Chamber of the ECHR in the case of Kovačević vs Bosnia and Herzegovina could establish judicial and legal case law that may be invoked in a number of countries, such as Spain (Catalonia), Italy (South Tyrol), the United Kingdom (all parts), Germany (regions with Polish and Turkish minorities), Moldova (areas with Romanian ethnic communities), France (Alsace and Lorraine with German-speaking communities), Belgium (three ethnic communities), the Netherlands (more than three ethnic communities), Switzerland (four linguistic communities), Montenegro (several ethnic communities), Serbia (Hungarian ethnic communities), Croatia (Italian ethnic communities), North Macedonia (Bulgarian and Albanian ethnic communities), and so on. In all these countries, individual ethnic communities could demand ethnically-based active voting rights, potentially resulting in the establishment of new ethnically-driven political systems, where such communities could influence legislation with the ultimate aim of pursuing separation from their parent states.

The application of case law stemming from a potential negative ruling by the Grand Chamber in the case of Kovačević vs Bosnia and Herzegovina would undoubtedly trigger demands for amendments to electoral laws and constitutions in many countries, with the aim of initiating processes of separation. Such developments could have far-reaching consequences for the European Union, which might struggle to address such a scenario.

The first repercussions would likely be felt in Montenegro, where there are intentions to use the recent population census as grounds to initiate discussions on introducing constituent status, followed by a second step involving ethnically-based governance. This would entail implementing ethnically-organised active voting rights to create an entirely new structure of government, not determined by election results, but by the distribution of power among ethnic communities through a system of parity-based participation in governance. The final step would then involve either amending the constitution or organising a referendum on returning the country to Serbia’s fold and withdrawing from NATO.

It remains unclear whether the judges of the European Court of Human Rights are fully aware of the potential precedent they could create through a poor decision, especially considering that the Grand Chamber includes judges from countries where active separatist movements exist. These countries would likely seek to leverage the case law stemming from a potential negative decision in Kovačević vs Bosnia and Herzegovina.

In conclusion, it is evident that the judgment in Kovačević vs Bosnia and Herzegovina is not only significant for Bosnia and Herzegovina and the restoration of democracy within the country but also has a much broader scope, effectively safeguarding democracy across Europe. Its confirmation in favour of the applicant, Kovačević, would undoubtedly affirm practices rooted in European democratic principles and task Bosnia and Herzegovina to embrace a democratic mindset and reorganise itself in line with European standards. This would also greatly benefit the wider Western Balkans region, which is striving for European and Euro-Atlantic integration, where the fulfilment of fundamental democratic principles is one of the basic and unavoidable requirements. For these reasons, the European Court of Human Rights bears an immense responsibility in this matter, as its judgment will either uphold and protect the democratic order across the European continent or plunge it into a state of latent peril.

Dr. Ernest Petrič


About the Author:
Dr. Ernest Petrič is a former judge and president of the Constitutional Court of the Republic of Slovenia. He is a professor of international law and international relations at the Faculty of Social Sciences in Ljubljana, the European Faculty of Law in Nova Gorica and Ljubljana, and the Faculty of State and European Studies in Kranj. Dr. Petrič has served as an ambassador to India (and Nepal), the United States (also accredited to Mexico and Brazil), and Austria. He was a permanent representative (with ambassadorial rank) to the United Nations (New York), the OSCE (Vienna), the IAEA, UNIDO, UNODC (United Nations Office on Drugs and Crime), and the CTBTO (Vienna). He is a former member and president of the ILC – International Law Commission (United Nations Commission on International Law) and a former member and president of the Board of Governors of the IAEA (International Atomic Energy Agency). Dr. Petrič has also served as a member of the Advisory Committee on Nominations of Judges for the International Criminal Court in The Hague. He is a member of the European Commission for Democracy through Law at the Council of Europe (Venice Commission) and a former senior advisor to the President of the Republic of Slovenia. He is the vice president of the Advisory Board of the International Institute for Middle East and Balkan Studies (IFIMES) and a member of the European Academy of Sciences and Arts (EASA).

The views expressed in this article are the author’s own and do not necessarily reflect IFIMES official position.

Ljubljana, November 2024 
 
Footnotes:
[1] IFIMES - International Institute for Middle East and Balkan Studies, based in Ljubljana, Slovenia, has a special consultative status with the United Nations Economic and Social Council ECOSOC/UN in New York since 2018, and it is the publisher of the international scientific journal "European Perspectives.", link: https://www.europeanperspectives.org/en   

[2] OHR: The General Framework Agreement for Peace in Bosnia and Herzegovina. Available at: https://www.ohr.int/dayton-peace-agreement/?lang=en 

[3] ECHR, Case of Sejdić and Finci v. Bosnia and Herzegovina, (Applications nos. 27996/06 and 34836/06). Available at:  https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-96491%22]}

[4] ECHR, Case of Zornić v. Bosnia and Herzegovina (Application no. 3681/06). Available at: https://hudoc.echr.coe.int/#{%22fulltext%22:[%22zorni%C4%87%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-145566%22]}

[5] ECHR, Case of PIlav v. Bosnia and Herzegovina (Application no. 41939/07). Available at: https://hudoc.echr.coe.int/#{%22fulltext%22:[%22pilav%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-163437%22]}

[6] ECHR, Case of Šlaku v. Bosnia and Herzegovina (no. 56666/12, 26 May 2016). 

[7] ECHR, Case of Pudarić v. Bosnia and Herzegovina (no. 55799/18, 8 December 2020).

[8] ECHR, Case of Kovačević v. Bosnia and Herzegovina (Application no. 43651/22). Available at: https://hudoc.echr.coe.int/#{%22fulltext%22:[%22pudaric%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-226386%22]}
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 



Ubicazione: Lubiana, Slovenia

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