Grand Chamber, Little Justice: A Verdict That Exposed European Hypocrisy

Written for NAP: Prof. Dr. Hazim Bašić, member of the Presidency of Krug 99

The Grand Chamber of the European Court of Human Rights (ECtHR) rejected the case of Kovačević v. Bosnia and Herzegovina on procedural grounds. This is despite the fact that in the first instance, the same Court had already ruled in favor of the applicant! The actions that followed the first-instance ruling indicate that this was not merely a legal decision, but also a political message. Instead of addressing the merits – the issue of systemic discrimination against citizens who do not wish to declare their ethnicity – the Court dismissed the application based on procedural objections. Allegedly, the applicant was not a "victim" because he was not personally nominated, nor was his right to vote directly denied, and furthermore, according to the Court, he "abused the right of application." In doing so, the Court formally avoided ruling on the substance of the problem: the anti-European, undemocratic, and deeply discriminatory nature of the constitutional and political system of Bosnia and Herzegovina.

And it is precisely this substance that speaks volumes about the nature of this country. In Bosnia and Herzegovina, the right to be elected – and in certain cases, to vote – depends on whether you declare yourself as Bosniak, Croat, or Serb, and where you live. If you are an "Other" – meaning Jewish, Roma, Albanian, Ukrainian, or simply a citizen who rejects ethnic affiliation as a political category – your vote has less value, and your candidacy for certain positions is impossible. This is a system that has been condemned multiple times in previous ECtHR judgments (Sejdić and Finci, Pilav, Zornić, Šlaku, Pudarić), which have never been implemented. The Court has now, for the first time, decided not to confirm what it had previously stated. In doing so, it sent a message that Bosnia and Herzegovina remains an exception, ghettoized within the European system of values.

United Against Citizen Equality

It is alarming that the Grand Chamber's decision came as a result of coordinated political and diplomatic efforts by Croatia, the HDZ BiH, and parts of the international community, who acted in unison, not in the interest of citizens, but in the interest of preserving ethno-national power divisions. The arguments presented to the Court were not of a legal nature. In addition to attempts to discredit the applicant, the arguments were based on fear, manipulation, and speculation such as: 'Bosnia and Herzegovina is unstable,' 'Don't disturb the delicate balance,' 'Russia has attacked Ukraine' (?!) (Timothy Otty, lawyer appointed by the High Representative). As if these arguments could justify denying citizens equal rights. Incidentally, it has been shown that Croatia's obstruction of BiH's European path can be bought (and sold) for a mere 100,000 euros, the amount Croatia paid to the ECtHR's account at a critical juncture.

And when it comes to the 'fragile peace,' we must ask ourselves: who is actually threatening instability? Citizens seeking equality, or political elites who use threats of violence as a political tool? Those who insist on 'constituent status' while simultaneously promoting a narrative of a 'European path.'

Discreditation Campaign and Double Standards

The treatment of applicant Slaven Kovačević during the hearing before the Court's Grand Chamber was a textbook example of an attempt to undermine credibility through personalization and labeling. It was emphasized that he is an advisor to a member of the BiH Presidency, that he does not declare his ethnicity, that he is 'politically motivated.' All of this is completely irrelevant. The European Court of Human Rights should not consider who someone is or where they work, but whether their rights have been denied.

The High Representative, C. Schmidt, played an important and very worrying role in undermining this judgment. As early as 2023, in a report to the UN Security Council, he suggested that confirming the first-instance ruling would destabilize Bosnia and Herzegovina (?). His lawyer before the Court, Timothy Otty, repeated the same argument, even though he is simultaneously a member of the Venice Commission, which has been pointing out the non-compliance of the BiH Constitution with European standards for years. This obvious conflict of interest further compromises the credibility of the process. Otty spoke against the stance of his own institution. The parties of the so-called "Trojka" also bear special responsibility. Their short-sightedness, political naivety, and incomprehensible acceptance of "compromises" with nationalists have led to this situation.

What the Verdict Really Means

If this verdict becomes a precedent, the Court has implicitly acknowledged that the "right to be discriminated against" can be a constitutional norm if political circumstances demand it. This opens up the possibility for the model of ethnic representation to be transferred to other countries: Montenegro, Kosovo, Serbia, North Macedonia... Instead of BiH being a warning, it becomes a dangerous model. Therefore, this verdict, however formally "technical," can have significant negative consequences in political reality. Leading politicians from the HDZ and SNSD are already saying that the court has rejected even the theoretical chance for a civic state of BiH, although it is about rejecting an application on procedural grounds.

On the other hand, if the verdict had been upheld, it would have become a key tool for the democratization of the BiH Constitution – the only real changes that would enable our European path. Should the Constitution be changed, which first asks *who you are*, and only then *what you want*? That challenge is now in the hands of political and civic actors within BiH. On one side are citizens who want a state based on rights and freedoms, and on the other are certain domestic ethno-politics and their international support, which, under the guise of stability, works to cement divisions.

The legal battle must continue; any citizen can file a new application, as we are all discriminated against. We are now entering a phase where the will of the citizens must be confirmed as the foundation of the constitutional order. As citizens, we are not a mistake of the system, but rather what democracy is measured by: by the right to be different, to not belong to predetermined favored collectives, to be free. By giving up the right to be citizens, without specific prefixes, with all our identities, without blood censuses, we can lose our state. Otherwise, this European path should be stopped in order to save the state. And to return to the negotiating table only when the EU returns to its values.