Politics in a Toga: The European Court of Human Rights in the Fog of Its Own Inconsistencies

By: Prof. Dr. Hazim Bašić, member of the Presidency of Krug 99

After the first-instance judgment of the European Court of Human Rights (ECtHR) in the case of Dr. Slaven Kovačević vs. Bosnia and Herzegovina, which found ethnic-territorial discrimination against the applicant, the Constitution of Bosnia and Herzegovina was not changed. Thus, the discriminatory provisions of the Constitution remained. In the judgment of the Grand Chamber, the court claims the opposite. What has actually changed in the meantime?

This is a judgment that, instead of strengthening trust in the legal order, has opened up questions reminiscent of the old folk saying: "Who guards the guards?" Because if a court that is supposed to be a guarantor of justice shows a willingness to bypass its own rules, what message does it send to states, institutions, and, most importantly, citizens?

First, regarding the issue of proxies. This is not just a formality, but a foundation. Who speaks on behalf of the state anyway? If, in the case of revision before the International Court of Justice, Sakib Softić could not act without a new decision from the Presidency of Bosnia and Herzegovina, how is it possible that proxies are recognized here for acting without the approval of their own government?

This is not a trivial matter, but an absurdity. If a state does not know who legitimately represents it, then that is a problem that collapses the entire process. However, the Court elegantly bypassed it, as if it were an unimportant footnote. This sends the message that the continuity of the state is unimportant, and that the speed with which a judgment is rendered according to a pre-arranged matrix is more important.

Second, the infamous "self-invitation" of the OHR. How can an institution that can impose constitutional changes, enact laws (even on election night), and dismiss elected officials simultaneously act as a "third party" in a proceeding, and without any conflict of interest? If anyone has a direct interest in the outcome of this case, it is the OHR. And precisely because of that, its role should have been excluded. Anything else is a mockery of the idea of impartiality. Because the OHR is not just a "neutral observer"; it is an actor, a creator, a participant. And when an actor who sets the rules of the game enters the courtroom and presents himself as an objective interpreter, then it is no longer law, but a performance.

Third, selective juggling of admissible and inadmissible complaints. The Court, as stated, actually discussed an issue that had already been declared inadmissible. This is a procedural salto mortale that should not happen even in a municipal court, let alone before the highest instance of human rights protection in Europe. And this is not a mere technical error. It fundamentally shaped the course of the discussion and allowed a stricter standard for victim status to be imposed. In other words, a legal trick was performed, the price of which is the trivialization of the concept of discrimination.

Fourth, and perhaps most importantly: the conscious neglect of the ethnic aspect. The applicant clearly pointed to the combination of ethnic and territorial criteria that denied him the right to choose. Instead of dealing with this, the Court reduced the issue exclusively to the territorial aspect, overlooking what is essential: a system in which a citizen is not a citizen, but an ethnic individual reduced to a pre-determined box. This is the central problem, the core of discrimination in Bosnia and Herzegovina. And precisely this element – the most difficult, most controversial, most uncomfortable – the Court decided to bypass. As if its recognition would open the door to something that European political elites have been resisting for decades: the recognition that Bosnia and Herzegovina was designed as a testing ground for institutionalized discrimination.

All in all, the ECtHR did not seek justice here in its pure form, but in the mold of political expediency. If arguments are used selectively, if basic procedural errors are overlooked, if conflicts of interest are disguised as "contributions to objectivity," then it is no longer justice. It is politics in a toga.

The biggest victim in this story is not the individual who filed the appeal, but the idea that the Court should be the last refuge against injustice. When a court begins to choose arguments as politicians choose voters, then it is clear: the line between law and politics has been erased. And when that line is erased, legal certainty becomes an illusion, and citizens' trust is irrevocably lost.

And here we come to the European context. Bosnia and Herzegovina is, on paper, a candidate for EU membership, and in practice remains a hostage of a system that treats citizens according to ethnic criteria. The Court, instead of being an ally of civil equality, becomes its gravedigger with such judgments. The message is clear: Europe demands reforms from BiH, but when an individual appears who demands these reforms through judicial protection, he is rejected. Thus, the status quo is cemented, discrimination becomes "legalized," and the European perspective turns into empty rhetoric.

Europe may repeat phrases about "progress" and "harmonization with standards" in its reports. But in reality, BiH is left in an eternal vicious circle. If this is the European path, then it is not a path to equality, but a path to the constant legitimization of discrimination and the generation of new instabilities.