Is there even a judgment: Did the European Court of Human Rights, led by Guyomar, undermine European values in BiH!?

By: Rasim Belko @rasimbelko

The conclusions were announced hastily and unexpectedly, but the judgment of the European Court of Human Rights in Strasbourg is still not available to the public, almost a month later. That fact, given the background of the entire process before the Grand Chamber, rightly raises doubts and opens the question of whether the European Court even ruled in the case of “Kovačević vs. BiH”?

Or did the President of the Court, Frenchman Mattias Guyomar, under pressure from various parties who publicly or from the shadows got involved (meddled in the case), give in and decide to conclude the story with conclusions, with completely false claims about the appellant Kovačević's requests, as can be seen from the published conclusions.

There are many questions, but one thing is certain: the current epilogue of the “Kovačević vs. BiH” case was not in line with the standard procedures of the Court, which is emphasized by the fact that we still haven't received the judgment. Also, the fact that the Conclusions present a completely different legal matter compared to the judgment of the Small Chamber, justifiably raises fears that the entire process has been undermined and stopped by political lobbying. And given that, the question arises whether Guyomar has jeopardized the credibility of the ECtHR.

Because, as Azra Zornić, an appellant awaiting the implementation of her judgment, recently wrote: “The controversial approach of the European Court of Human Rights, which received a donation of 100,000 euros from neighboring Croatia, thereby, by allowing the High Representative and neighboring Croatia to be involved as 'interveners' or 'third parties', put the applicant Kovačević himself in an unequal position and deprived him of the right to a fair trial”.

And since the right to a fair trial has already been taken away, why not end the whole process with a farce called conclusions?

The fact that everything was done in a hurry and under evident pressure is also indicated by what the European Court stated in the Conclusions, which the appellant Kovačević did not complain about at all.

“Declares, by 16 votes to 1, that the applicant’s complaints under Article 3 of Protocol No. 1 to the Convention, taken alone and/or in conjunction with Article 14 of the Convention, concerning the indirect nature of the elections to the House of Peoples of Bosnia and Herzegovina and the amendment of certain electoral rules on the day of the general elections held on 2 October 2022, fall outside the scope of the case as it was submitted to the Grand Chamber;

Accepts, by 16 votes to 1, the Government’s objection to the admissibility of the application for the following reasons:

(a) by 16 votes to 1, that the applicant has abused the right of application within the meaning of Article 35 § 3 (a) of the Convention;

(b) by 12 votes to 5, that the applicant does not have victim status within the meaning of Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1 to the Convention and Article 1 of Protocol No. 12;

Declares, unanimously, that it is not necessary to examine the remaining grounds of inadmissibility raised by the Government” - this is what was written in the Conclusions.

Now, either the President of the Court and the judges were confused by the hundred thousand euros from Croatia, or it was the result of the inadmissible influence of the High Representative Christian Schmidt (as an intervener) or perhaps some third party as a shadow actor, but it is quite clear that the Grand Chamber made a decision on something that was not requested at all.

In his appeal, Kovačević challenged the provisions of the Constitution of Bosnia and Herzegovina (Articles 4.1 and 5.), which prevent the exercise of active voting rights in elections for the Presidency of Bosnia and Herzegovina and the House of Peoples of Bosnia and Herzegovina. This was confirmed in the first-instance judgment of August 2023. In addition, Kovačević problematized certain provisions of the Constitution of Bosnia and Herzegovina in terms of their discriminatory impact, which was supported by judgments of higher instances.

To clarify, for better understanding, the appellant Kovačević stated in his appeal that the House of Peoples of BiH consists of 15 delegates: 5 Bosniaks and Croats each from the Federation and 5 Serbs from Republika Srpska (according to Article IV of the Constitution), and that he, as a resident of Sarajevo Canton in FBiH, is only allowed to indirectly elect Bosniak and Croat delegates to the KS Assembly, who then elect delegates to the House of Peoples of FBiH, and only they then elect Bosniak and Croat delegates to the House of Peoples of the BiH Parliament.

Citizens from FBiH, therefore, cannot influence the election of delegates to the House of Peoples of the BiH Parliament, because their active voting right ends with the elections for the KS Assembly.

As proof of this, we remind that political parties provide a new list of Bosniak and Croat clubs in the House of Peoples of FBiH from which delegates to the House of Peoples of BiH are elected, and voters have nothing to do with this list and election, thereby violating their active voting rights.

Therefore, citizen Kovačević from KS and FBiH can indirectly elect only Bosniaks and Croats to the House of Peoples through the cantonal assembly, and not Serbs. The applicant is discriminated against because he does not have the right to elect Serb delegates, unlike members of the constituent peoples from their entities.

Kovačević also challenged the possibility of changing residence as a model for saving active voting rights, because false residence is a criminal offense, and it is also unfeasible.

Likewise, he recalled that the historical compromise of Dayton could have been acceptable when the House of Peoples had only limited powers to protect vital national interests, and today it has full legislative powers, so it is crucial that all segments of society are represented in it, not just the constituent peoples.

Regarding the Presidency of BiH, appellant Kovačević requested that all citizens of BiH be able to vote for all candidates. As confirmation of the justification for this request, we can cite the examples of Slovenia, Croatia, Macedonia, and Montenegro, where all these countries are a single electoral unit in the election of the head of state. Thus, the election of members of the Presidency of BiH is a matter of ethno-territorial discrimination.

The system further emphasizes ethnic affiliation over political and other affiliations, thereby deepening ethnic divisions and weakening democracy. Among other things, Kovačević stated that it is necessary to reject the argument that BiH is not yet ready for majority democracy, emphasizing that there are models of power sharing that do not exclude other citizens.

Is it not then obvious that this is an artificially created legal situation in order to deny the appellant the “victim status”, because if the Court had acted according to the applicant’s request, in which he challenges the provisions of the BiH Constitution, then his victim status would be confirmed, as it concerns a political system established by the Constitution over which he has no influence.

And therefore, it is clearly a different treatment in the same matter of residents living in the FBiH entity and residents living in the RS entity, which is the fundamental definition of discrimination itself.

At the same time, it is clear that it is a lie that Kovačević challenged the decisions on impositions by the High Representative from the end of 2022 in his appeal, because his appeal was submitted earlier. The premise we read in the Conclusions is completely different from the appeal and the first-instance judgment, so the question is what motives and reasons prompted the President of the Court and the other 15 to do what they did.

And it is not that doubts about unsystematic actions have not been associated with President of the Court Guyomar before. True, the complaint filed against him in France during his time at the Supreme Court was dismissed due to a lack of evidence that he had committed a criminal offense. Guyomar was then reported for undermining the authority of French President Nicolas Sarkozy through subversive actions.

Whether European justice will examine the possibility of corruption in the process of adopting the Conclusions of the Grand Chamber in the case Kovačević vs. BiH remains to be seen, but it is certainly completely clear that these Conclusions are the product of pressure from those parties for whom Bosnia and Herzegovina organized according to European values does not suit them, because in the existing system it is easiest to undermine not only institutions but the state itself.

And the European Court of Human Rights, due to all of the above, has clearly engaged in the politicization of justice, and certainly not in European values and human rights, among which is the active right to vote!