DPC seeks to join "Kovačević" case: As a third party, it believes annulling the first-instance decision would be wrong

(Patria) - The Democratization Policy Council (DPC) has submitted observations as a third party in the case of Slaven Kovačević vs. Bosnia and Herzegovina.

“The mission of the DPC is to pressure established and new democracies, as well as transnational and international institutions, to pursue policies based on liberal democratic values and principles within their international engagements and obligations. Through its research, analysis, advocacy, and public engagement, the DPC seeks to draw the attention of policymakers, legislators, and civil society to encroachments on freedoms within democratic frameworks,” the introduction to the observations states.

It adds: “Since its founding in 2007, the DPC has closely monitored political and security developments in the Western Balkans and the role of Western actors, particularly the US and the European Union, in line with its mission. Over the years, the DPC has undertaken extensive research, analysis, and advocacy, becoming the most consistent think tank outside the region, tracking the ups and downs of democratic development and the involvement of external actors in the six Western Balkan countries”.

Interest and Request for Consideration of These Observations

The DPC submitted these observations at the same time it filed a request for intervention. The DPC acknowledges that this filing is unusual, as the request to be allowed to submit observations is being filed concurrently with the submission of the proposed observations. This is a result of the limited time available before the scheduled hearing before the Grand Chamber, and it is driven by the DPC’s desire not to cause unnecessary delay. There is no disrespect to the Court in this approach. The DPC respectfully submits that consideration of these observations would be in the interest of justice within the meaning of Article 36(2) of the Convention and Rule 44(3)(a) of the Rules of Court.

The DPC submits these observations due to its reasonable concern that annulling the first-instance decision would create an artificial constraint on the potential for citizens to develop constitutional alternatives that would be compatible with the fundamental findings from which the Kovačević judgment, as well as its five predecessors, starting with the Sejdić and Finci case in 2009, are derived…

Request for Leave to Intervene by the DPC

This request is submitted by the Democratization Policy Council (DPC). The mission of the DPC is to pressure established and new democracies, as well as transnational and international institutions, to pursue policies based on liberal democratic values and principles within their international engagements and obligations. Through its research, analysis, advocacy, and public engagement, the DPC seeks to draw the attention of policymakers, legislators, and civil society to encroachments on freedoms within democratic frameworks.

The DPC has no connection to the parties in this case. It wishes to submit its observations in the public interest and in the interest of the proper administration of justice.

In accordance with Article 36(2) of the Convention and Rule 44(3)(a) of the Rules of Court, the DPC is a relevant party for the purposes of this important application concerning Bosnia and Herzegovina (BiH). In the interest of expediting proceedings, the DPC submits this request and simultaneously submits its proposed written observations. It is recognised that this is outside the Court’s usual practice and the DPC wishes to make it clear that it in no way shows disrespect to the Court by this procedure. The DPC simply wishes to avoid any possibility of unnecessary delay and to avoid any suggestion that its intervention should not be permitted because it might be too late to avoid disrupting the upcoming hearing.

The DPC possesses specific knowledge of the political and civil society in BiH that will be of assistance to this Court. The DPC is interested, given the claims submitted on behalf of the High Representative, in ensuring that the Court has a balanced view of the political landscape in BiH. This, it is respectfully submitted, can only be achieved if consideration is given not only to the frameworks of the original Dayton Agreement, but also to the way in which BiH has developed as a society and democracy since 1995. The DPC wishes to assist this Court in relation to these matters, including the application of the Bonn Powers by various High Representatives. The DPC respectfully considers that such contextualisation will be of assistance – and indeed may be crucial – when the Court considers the application.

It hopes that the Court, after considering these observations, will recognise that they should be taken into account as part of the decision-making on the application, and therefore that the discretion of the President of the Chamber will be exercised in accordance with Rule 44 to permit the filing of the application outside the usual time limits. The DPC respectfully considers that consideration of these observations would be in the interest of justice within the meaning of Article 36(2) of the Convention and Rule 44(3)(a) of the Rules of Court and therefore urges the Court to permit consideration of these observations.

The current constitutional framework in Bosnia and Herzegovina (BiH) protects the incumbent political elites in a manner that has caused widespread anger, dissatisfaction, and disillusionment with the political system, as clearly evidenced by low voter turnout and protests. These elites appear to be seeking to solidify their advantage by mobilising international actors to advocate for the current system. The main reason the DPC has not submitted these observations earlier is that it was unaware of the position allegedly taken by the High Representative in his submission to the Court. Having been informed of that position, the DPC felt obliged to ensure that this Court has submissions on the facts in BiH, from an observer aware of developments over the last 30 years, so as to avoid any misunderstanding.