Der Standard: Did the ECtHR, with the 'Kovačević' ruling, block all BiH Constitutional reforms sought by the EU?

(Patria) - Everyone should be equal before the law, but some are more equal than others in Bosnia and Herzegovina.

This is how the Austrian der Standard's article on the "Kovačević vs. BiH" case begins, which you can read below.

The fact that those who declare themselves as Bosniaks, Serbs, or Croats are in a more favorable position than those who do not has been a concern for the European Court of Human Rights (ECtHR) in Strasbourg for years. After the war (1992–1995), American diplomats drafted the Constitution. Since then, the country has had three members of the Presidency. A citizen can only be elected to this office if they declare themselves as a Bosniak, Serb, or Croat, meaning if they declare an ethnic affiliation. This also applies to the powerful second chamber of parliament, the "House of Peoples." Candidates from national minorities or multi-ethnic parties, as well as individuals who reject ethnic affiliation, have no legal possibility to be elected. The Constitution refers to them as "Others." Not only is their political representation constitutionally excluded, but their right to vote for ethnically declaring candidates is also restricted.

Due to this exclusion from passive suffrage and the restriction of active suffrage, and after a series of complaints, the ECtHR has repeatedly condemned Bosnia and Herzegovina for ethnic discrimination since 2009.

Help for ethno-parties

None of the judgments have been implemented so far, as the country's Constitutional Court opposes it, and the necessary two-thirds majority for constitutional reforms cannot be reached in Parliament. Like many "Others" before him, Slaven Kovačević, as a Bosnian "citizen," filed a complaint with the ECtHR and won his case in 2023. However, the Bosnian government appealed the ruling, leading to the case being considered "on the second instance" before the Grand Chamber. The High Representative in the country, German politician from the CSU, Christian Schmidt, also intervened.

The Croatian nationalist party HDZ, which is part of the Bosnian government, did not like the initial ruling in the Kovačević case, as ethno-nationalist parties like the HDZ would lose the benefit of the ethno-quota Constitution, which would have to be liberalized due to this ruling. The EU has made the implementation of ECtHR rulings a condition – conditionality – for Bosnia and Herzegovina's accession to the Union.

Doubts from Graz

Schmidt was also against the first ruling in the Kovačević case. His British legal advisor stated at a hearing before the ECtHR in November 2024 that constitutional changes are politically very dangerous given the constant secession threats coming from the President of the Republika Srpska entity, Milorad Dodik. At the end of June this year, the judges of the Grand Chamber delivered a ruling declaring Kovačević's appeal inadmissible, although in the first-instance ruling, all but one judge had decided in his favor.

It is particularly unusual that Kovačević's appeal was classified as an "abuse" of the right to appeal. Josef Marko, a constitutional law expert from Graz and former international judge of the BiH Constitutional Court, who advised Kovačević in 2024, believes that the decision of the Grand Chamber judges will have far-reaching political consequences. "Because the key question now arises: have all the necessary constitutional reforms – which the EU also demands – to abolish the rigid ethnic quota system and enable non-discrimination, now been completely taken off the agenda with this ruling?" Marko told Standard.

Conflicting rulings

The Grand Chamber judges argued that the elections for the House of Peoples do not fall under the "protective scope" of Article 3 of Protocol No. 1 to the European Convention on Human Rights, which relates to the "right to free elections." In earlier cases, when Bosnia and Herzegovina was condemned for discrimination, the ECtHR interpreted this differently – for example, in the case of Dervo Sejdić, a Roma, and Jakob Finci, who belongs to the Jewish community. Their appeals were accepted in 2009 because they could not be elected to either the House of Peoples or the Presidency due to constitutional provisions.

This also applies to the cases of Azra Zornić, who rejects any ethnic declaration, and Samir Šlak, an Albanian, who won rulings in their favor. The case of Ilijaz Pilav, a Bosniak from 2016, is particularly similar. He lived in Republika Srpska and filed a complaint due to discrimination in active suffrage for the Presidency. In RS, only a Serb can be elected to the Presidency.

Staying within the constitutional framework

The written reasons for the ruling in the Kovačević case will only be published in the coming months. It is unclear whether all previous ECtHR decisions have been overturned by this ruling or only those concerning the electoral system for the House of Peoples. Depending on the reasoning, it could also happen that rulings concerning the election of Presidency members – such as the ruling in the Pilav case – are overturned.

Given all this, it can be assumed that the constitutional reforms that would implement the ECtHR rulings – and which have been set as a condition for EU accession since 2019 – are now out of reach. Bosnia and Herzegovina, it seems, is destined to remain forever within the post-war constitution designed by Croatian and Serbian ethno-nationalists with the help of foreign diplomats, a constitution based on the division and separation of ethnic groups, rather than on the legal supremacy of the civic principle, as required by the "philosophy" of democratic constitutionalism contained in the European Convention on Human Rights.

"Wrong decision"

The ruling in the Kovačević case is also notable for another reason. The majority of judges decided that Kovačević does not have victim status. The ECtHR defines this status such that no one can file an "abstract" complaint if they are not "directly affected." Marko considers this an obviously wrong decision.

Contrary to the claims of the Bosnian government's legal representative, who argued that Kovačević did not vote at all and was therefore not affected, Kovačević explicitly stated at the hearing that he did participate in the elections for Parliament and the Presidency. "Therefore, he is affected," says Marko. "This means he has the right for his vote not to be discriminated against, in accordance with the principle of freedom and equality of vote."

Furthermore, it was already established in the Sejdić and Finci case that the applicants' rights were violated even when legal norms forced them to "change their behavior." This applies precisely to Kovačević. "Kovačević has victim status because he could only cast his vote for ethnically defined candidates if he wanted that vote to have an 'effective impact' on the composition of state bodies," says Marko, as the ECtHR ruled in the cases of Bulgaria and Hungary.

Many are affected

However, not only members of national minorities, but also "citizens" who reject ethnic self-identification are, according to the Bosnian Constitution, reduced to the status of a "minority" because they face the majority of citizens who declare themselves as Bosniaks, Croats, and Serbs. The ECtHR also recognized this in the Zornić v. BiH case.

How strictly every ethnic distinction must be justified is also shown by the case of Ilijaz Jakubovič in the Timișeva v. Russia case. The ECtHR then concluded that discrimination based on actual or presumed ethnic affiliation is a form of racial discrimination. Differential treatment based solely or largely on ethnic affiliation cannot be justified in a democratic society based on pluralism and respect for different cultures.

"Precisely because of these ECtHR rulings, the Grand Chamber had to apply particularly strict criteria through the principle of proportionality to examine whether the Dayton Constitution is free from ethnic discrimination," criticizes Marko. "But the Grand Chamber avoided this analysis by declaring the appeal inadmissible and did not address this fundamental principle in its reasoning."

It is possible that the arguments of the Bosnian government also influenced the judges. In any case, they followed them. The government – led by Prime Minister Borjana Krišto from the HDZ – even accused Kovačević of abuse, claiming he had not reported a change in his ethnic affiliation. Marko, in this context, recalls the Framework Convention for the Protection of National Minorities of the Council of Europe, which BiH ratified and which has constitutional force.

According to Article 3 of this convention, no one shall suffer "any prejudice or disadvantage as a result of the exercise of the right to change or declare their ethnic or other affiliation," he states. "Therefore, there is a constitutionally protected right to decide whether and when to declare one's ethnicity," says Marko. Furthermore, there is no provision in domestic or international law that requires a declared ethnic affiliation to be maintained for life – although some legal systems, such as those in Northern Ireland or South Tyrol, do have restrictions to prevent abuse, but they generally relate to the duration of an electoral mandate.