Der Standard: Christian Schmidt wants to overturn ruling that would reduce discrimination in BiH

(Patria) - Austrian newspaper Der Standard states that the international community's High Representative in Bosnia and Herzegovina, Christian Schmidt, has with his earlier decisions "supported the ethno-territorial division of the country", and that he now wants to intervene before the European Court of Human Rights (ECtHR) to annul a ruling that would reduce discrimination in the country, which would benefit neighboring Croatia.

Der Standard states that Schmidt is once again under criticism because many believe that he primarily represents Croatia's interests.

The case in which Schmidt wishes to intervene before the court in Strasbourg on November 20 is the subject of Kovačević v. Bosnia and Herzegovina, which is being re-heard by the Grand Chamber.

“The Kovačević case is a headache for many international diplomats, because if that ruling were implemented, the entire post-war Bosnian-Herzegovinian constitution would have to be redesigned,” the newspaper states, explaining that it was ruled that Slaven Kovačević, like five other people before him, was right to complain to the court that he was discriminated against based on the constitution.

“In Bosnia and Herzegovina, only certain people from certain regions can be elected to certain positions. Anyone who does not belong to one of the three major ethnic groups (Bosniaks, Serbs, Croats) has fewer rights,” the text explains, adding that the Council of Ministers of BiH wants to annul the ruling and that “Schmidt clearly wants to play a role in this”.

“The post-war constitution of 1995 was originally written only to enable peace after three and a half years of war. However, by using ethno-proportionality and veto options, ethno-nationalists have been preventing reforms and the Europeanization of the legal system for decades, without which Bosnia and Herzegovina can never join the EU,” it adds.

Retroactive changes to the Election Law

Der Standard states that this is not the first time this German politician has caused confusion in Bosnia and Herzegovina.

“In October 2022, when he retroactively changed the Election Law on election night in the interest of neighboring Croatia and at the request of HDZ, and in order for the government to be formed only with HDZ, Schmidt was warned about his bias. There was also anger within the EU Delegation because, according to the Venice Commission, changes to the Election Law must be introduced at least six months before the elections, not on election night and certainly not retroactively. With his legislative package, Schmidt also supported the ethno-territorial division of the country,” it states.

It is emphasized that the implementation of the ruling in the Kovačević case would go in precisely the opposite direction, and “civic elements of the constitution would be strengthened, while the group rights of the ‘constituent peoples’ would remain in the background”.

“This would reduce discrimination, but it is not in the interest of HDZ because HDZ holds a position of immense power through the Dayton Constitution,” it adds.

Kovačević himself points out that some EU countries are also against Schmidt's intervention in Strasbourg. He also believes that the court did not invite Schmidt to give a statement, but that he approached the court on his own initiative to intervene as a “third party”.

“In any case, Schmidt has hired the British legal consulting firm Blackstone Chambers to assist him in this case,” the Austrian newspaper states, adding that the Office of the High Representative did not respond to questions about “who will bear the costs of legal consulting, whether Croatia is involved in the case, and whether Schmidt took the initiative himself”.

“Constitutional deadlock”

His office told Der Standard: “The High Representative will not take sides, but will contribute as the ultimate local authority in interpreting the civic aspects of the Dayton Peace Agreement.”

The final ruling by the Grand Chamber is expected in 2025.

Joseph Marko, an expert on the BiH Constitution, states on his blog regarding the Kovačević case: “If the Court follows its well-established case law contrary to the dissenting opinion of one of the judges in the Chamber's ruling, it should compel mono-ethnic political parties and their leaders, as well as EU institutions, to insist on unblocking the constitutional deadlock as soon as possible for any real steps towards European integration.”

Marko believes that the fundamental question is whether individual rights of citizens, such as the right to vote and run for office, and group rights in the form of political representation and participation, necessarily exclude each other or can be combined.

Der Standard points out that to date, none of the ECtHR rulings on Bosnia and Herzegovina concerning individual rights have been implemented, although the oldest ruling dates back to 2009.

Implementation of the Dayton Agreement

Intellectuals from “Krug 99” in Sarajevo have called on Schmidt to “not act as a colonial governor doing dubious business on behalf of some hegemonic projects”.

Dutch MEP Tineke Strik published on platform X: “Your mandate is to oversee the implementation of the Dayton Agreement as well as compliance with the decisions of the European Court of Human Rights, not to try to annul them.”

Der Standard states that a decision is also expected on who will take over the role of rapporteur for Bosnia and Herzegovina in the European Parliament in the future.

“The powerful European People's Party (EPP) supports HDZ politician Davor Stier from Croatia to take over the job. In Bosnia and Herzegovina, there is concern that Stier will continue Croatia's hegemonic, patronizing course,” the newspaper states, reports N1.

It adds that legal experts believe that representatives of Croatia should not be considered for this task due to the country's involvement in the war in BiH, and that there is a similar regulation for the appointment of international judges to the Constitutional Court of BiH.