ANALYSIS Political pressure and legal injustice in the 'Kovačević' case

(Patria) - The ruling of the Grand Chamber in the 'Kovačević' case, by its tone and context, creates the perception that everything in this case was rigged and that the Grand Chamber acted with intent to overturn this case.

After the meeting between Croatian Prime Minister Andrej Plenković and then-President Siofra O'Leary, the request for proceedings before the Grand Chamber was accepted, even though, according to the practice of the European Court of Human Rights itself, the percentage of rejected requests is around 97%, while the 'Kovačević' case fell into that 3% of accepted requests, directly after the aforementioned meeting.

In the same way, after the meeting between Croatian Prime Minister Andrej Plenković and High Representative Christian Schmidt in October 2024, it was then that the High Representative submitted a request to join the case as a 'Third Party' outside the deadlines set by the Court's Rules, which, lo and behold, still allowed the High Representative's involvement even though the deadline had been missed.

During that period, Croatia also appeared with its donation of 100,000 euros to the European Court of Human Rights, which is not common practice, but creates a perception of pressure or approval by the Court to act according to Croatia's wishes.

As Kovačević himself says, the President of the Court, Marko Bošnjak, instructed the High Representative that his submission could not be longer than 10 pages and that it must not enter into the merits of the case.

The High Representative submitted 600 pages and entered into the merits of the case, even giving political qualifications, which are not a legal argument, raising additional suspicion about the connection between the High Representative and the Court's leadership.

It is particularly interesting that all this happened when Kovačević submitted to the Court a document from the Office for Legislation which explicitly claims that persons whose mandate as acting officials has expired cannot perform legal acts. In that case, we know that criminal complaints were also filed, by parliamentarian Zlatan Begić.

Probably the High Representative himself feared that the other side, led by the HDZ, could be left without a representative in the proceedings, so he joined the proceedings to secure the overturning of the judgment, even though that is not his job, nor did he ever say who pays for that expensive law firm BlackStone Chambers.

In the judgment, the European Court of Human Rights claims that at that stage of the proceedings, establishing the lack of active legal standing of the alleged acting agents of the Council of Ministers whose active mandate had expired, would jeopardise legal certainty, not to mention how much accepting acting agents with expired mandates jeopardised the legal certainty of Kovačević himself.

In the judgment, which is a serious precedent, it is stated that Kovačević intimidated the High Representative, although it is impossible to find any statement or behaviour by Kovačević that could be characterised as intimidation. The High Representative was not the respondent party, so it is illogical to even think that Kovačević would resort to intimidation. On the other hand, Kovačević received death threats, which he reported to the police authorities, but the Court says not a word about that, nor did the High Representative say anything in his statements or communiqués from the Peace Implementation Council.

Does that mean that Kovačević's life is worth less than that of other citizens, or that the High Representative, by his silence, approves of the threats against Kovačević?

In the 'Kovačević' judgment of August 2023, the positions of the Parliamentary Assembly of the Council of Europe, as a body superior to the European Court of Human Rights, then the Committee of Ministers, the Commissioner for Human Rights, and the opinions of the Venice Commission, which support Kovačević's arguments, are mentioned, but the Grand Chamber did not take them into account at all. Does that mean that the European Court of Human Rights places itself above the aforementioned institutions of the Council of Europe, taking the liberty of disregarding their positions and opinions?

The European Court claims that Kovačević did not prove discrimination against him, and then goes on to say that the two entities have completely different ways of electing the Presidency and the House of Peoples, thereby actually confirming discrimination.

Particularly strange is the position on 'actio popularis' with the claim that Kovačević did this for some higher cause, and that he was not directly affected by the discrimination that deprives him of active voting rights, which is not true, although most of the domestic public rooted for Kovačević, considering him their representative, but on the other hand, it is so obvious that Kovačević, as a resident of the Federation of BiH entity, can only vote for ethnically suitable candidates in the elections for the BiH Presidency, Bosniaks or Croats, meaning he cannot vote for all candidates. In the elections for the House of Peoples, Kovačević's right ends with voting for cantonal assemblies, so that by that vote he has no influence on the election of delegates to the House of Peoples, who are appointed within the framework of a political agreement between political parties, and not as a result of voters' votes.

Finally, Kovačević's ethnic affiliation, which he claims he never changed or adjusted, is completely irrelevant data, because active voting rights cannot be linked to ethnic affiliation, nor should ethnic affiliation allow greater or lesser rights in exercising active voting rights. But we know who did change ethnic affiliation and adjusted it to the political context – Dragan Čović, who declared himself a Yugoslav and signed in Cyrillic before he became a great Croat.

When all this is considered, it can be concluded that the European Court of Human Rights destroyed its own integrity by turning into a political body, which is evident from a series of political statements in the 'Kovačević' judgment. The attempt to discredit Kovačević is a visible indicator of intent, and that of malicious intent, because the European Court of Human Rights in this proceeding before the Grand Chamber clearly acted with the intent to overturn the previously rendered judgment. Especially by creating a 3:1 ratio against Kovačević, accepting biased 'Third Parties' that joined outside the prescribed deadline. Why did the Court not even look at the letter from the Deputy Chair of the Council of Ministers, who stated that the Council of Ministers never took any position on joining this case and appointed adequate persons, because the previous agents' mandates had expired. Does that mean that in the European Court of Human Rights, letters that were in Kovačević's favour are being hidden or removed?

How to trust such a Court in the future is a question for the Parliamentary Assembly of the Council of Europe.