EU and Schmidt not for implementing ECtHR judgments, 'Kovačević vs. BiH' decision could change everything!

(Patria) - Christian Schmidt, the High Representative for Bosnia and Herzegovina, enacted a legal reform on Wednesday aimed at making electoral fraud more difficult and ensuring transparency, particularly concerning the upcoming local elections in the autumn. As early as December, Schmidt called on the coalition government to submit this "integrity package" to parliament through democratic means. However, several coalition parties, particularly the Croatian-nationalist HDZ, opposed it.

The EU has now expressed criticism of Schmidt's decision. The EU has long competed for the position of High Representative. Since 1995, this position has been responsible for implementing the civilian aspects of the Dayton Agreement through UN Security Council Resolution 1031. The EU Delegation in Sarajevo stated that the High Representative should only use his powers as a last resort "against irreparable illegal actions". "The EU emphasizes that comprehensive international supervision is not compatible with the European future of Bosnia and Herzegovina and expects all involved parties to act responsibly and with restraint in the future," the statement further reads. This can be understood as a call for Schmidt not to use his powers too often.

A smaller number of observers, such as Bosnia expert Bodo Weber from the Democratization Policy Council, believe that the EU is still willing to turn a blind eye to the real intentions of the HDZ - which is the ethno-territorial division of the country. In reality, the HDZ has now lost a means of pressure with Christian Schmidt's decision, as they agreed to the "integrity package" only if their own legislative proposals were also implemented. According to media reports, the HDZ had already made "deals" with other parties regarding these demands.

On the other hand, there are also numerous proponents of Schmidt's legal reform - especially political forces in the country that want to reduce election fraud and manipulation, as well as the United States and European countries Germany and the Netherlands. These two countries were also critical when it came to supporting the start of EU accession negotiations for Bosnia and Herzegovina, which was particularly supported by the EU delegation in Sarajevo. Berlin and The Hague pointed out that there was little real progress in reforms, but they eventually agreed.

Change of Stance

Particularly interesting is the change in the HDZ's stance, which celebrated Schmidt just a few months ago. The President of the HDZ, Dragan Čović, has recently spoken negatively about the High Representative, even though Schmidt implemented an extremely controversial electoral reform in 2022 at the request of the HDZ. In recent years, the HDZ has exerted significant influence in many European and international organizations through its sister party in neighboring Croatia, successfully lobbying for its interests.

However, this is often at the expense of the general interests of Bosnia and Herzegovina. The HDZ strongly opposes the creation of a non-discriminatory state for all citizens - which is a fundamental prerequisite for EU accession. The reason for this is that in such a civil environment, it would not have as much veto power. Bosnian citizen Slaven Kovačević, who rejects ethnic classifications and advocates for a "more European and just state," recently experienced this.

Last summer, the European Court of Human Rights (ECtHR) ruled that Kovačević was correct in claiming that he was discriminated against in Bosnia and Herzegovina due to the existing election law. However, instead of implementing this ruling for Kovačević and five other ECtHR judgments concerning existing discrimination and "Europeanizing" the Constitution, the Chairperson of the Council of Ministers of Bosnia and Herzegovina, Borjana Krišto, a member of the HDZ, opposed Kovačević and managed to have the ECtHR reconsider the ruling in the Grand Chamber.

Der Standard also raised numerous questions to the Secretary General of the Council of Europe, Marija Pejčinović Burić, who is also a former member of the HDZ, regarding Kovačević's case. The ECtHR, after all, was established by the member states of the Council of Europe. Pejčinović Burić, however, did not answer most of Der Standard's questions.

After German Green politician Max Lucks, a member of the German Bundestag and the Parliamentary Assembly of the Council of Europe, asked a question, Pejčinović Burić replied: "As Secretary General, I have no role in overseeing the implementation of judgments." Furthermore, there is no connection between the Political Directorate of the Council of Europe and the Committee of Ministers that oversees the implementation of judgments. The head of the Political Directorate of the Council of Europe is also a Croat, Miroslav Papo.

The Kovačević Case

Lucks considers Burić's actions "extremely concerning." She is the Secretary General of an important institution that advocates for greater transparency at the governmental level and media freedom in its member states. Her initial inaction, then insufficient response, and finally reaction only after a member's engagement, are contrary to the standards the Council of Europe has set for itself.

The ruling in the Kovačević case is of great interest to legal scholars. If the ruling were applied, the Constitution would have to undergo significant changes. The current Constitution is based on the 1995 Dayton Agreement, which favored nationalists who wanted to divide and destroy the state of Bosnia and Herzegovina during the war years. Therefore, the current Constitution largely serves the interests of those nationalists who continue to undermine and partially destroy the state.

Joseph Marko, a constitutional expert from Graz, writes in an article for "verfassungsblog.de" that he hopes the Grand Chamber of the ECtHR will issue a ruling in the Kovačević case that will require the necessary constitutional reforms needed for European integration. The Kovačević case concerns his inability to vote for the candidates he wished due to the ethno-territorial division of the country. In Bosnia and Herzegovina, in certain parts of the country, only specific individuals, counted among the three ethnic groups, have the right to vote. All others are also discriminated against in their passive right to vote.

Marko considers historical comparisons of the arguments of the judge who voted against the majority decision to be refuted by existing judgments. He refers to the judgment in the case of Mathieu-Mohin and Clerfayt v. Belgium from 1987 and the judgment in the case of Aziz v. Cyprus from 2004. Marko's conclusion: In the Belgian and Cypriot cases, the ECtHR established the same criteria for judicial review of active voting rights as is now the case in Bosnia and Herzegovina. This was also confirmed in the cases of Riza v. Bulgaria from 2016 and Bakirdzi and E.C. v. Hungary from 2023. Thus, a practice of the ECtHR has already been established outside of Bosnia and Herzegovina, according to which "every citizen" should have an influence on the composition of the legislature without discrimination.

Marko also points to the fundamental problem of the Constitution of Bosnia and Herzegovina, which favors nationalists.

"As scientific studies on the electoral system of Bosnia and Herzegovina show, multi-ethnic parties have no chance of becoming stronger than parties that engage in divisions to maintain mono-ethnic power."

It is interesting in this context that neither the EU, nor the High Representative, nor individual EU member states are effectively and credibly advocating for the implementation of all six ECtHR judgments, even though these judgments are necessary for the Europeanization of the state and would significantly strengthen citizens' trust in democracy and the rule of law, concludes Adelheid Wölfl in her text for Der Standard.