Why are Schmidt and Croatia only undermining one judgment of the Court in Strasbourg?

“If confirmed, the judgment (Kovačević) could further divide political parties in BiH on the issue of constitutional reform, making the implementation of decisions of the European Court of Human Rights and the Constitutional Court an even greater challenge, as they require constitutional amendments.”

This sentence, written in a report from the OHR sent to the UN Security Council last year, best illustrates the intentions of High Representative Christian Schmidt regarding the judgment of the European Court of Human Rights in the case Slaven Kovačević v. Bosnia and Herzegovina.

Pay attention to two details in Schmidt’s sentence from the beginning of this text. First – Schmidt writes in November 2023: “if the Kovačević judgment is confirmed” and second – “it could further divide political parties in BiH”.

The High Representative, therefore, warns the UN that the confirmation of the judgment in the Kovačević case could complicate the implementation of other judgments of the European Court of Human Rights concerning BiH’s electoral legislation and the BiH Constitution. This means that Schmidt does not see the judgments in Sejdić-Finci v. BiH, Šlaku v. BiH, Zornić v. BiH, Pilav v. BiH, and Pudarić v. BiH as a problem, but exclusively the Kovačević v. BiH judgment. And here’s why.

The implementation of all the aforementioned judgments, except for the Kovačević judgment, leaves room for incorporating the demands of HDZ BiH into the BiH Constitution. Only the Kovačević judgment excludes any HDZ demands. Now let’s analyze the judgments in detail.

Sejdić-Finci v. BiH Judgment

The proceedings in this case were initiated by two applications (no. 27996/06 and 34836/06) against Bosnia and Herzegovina, lodged with the Court on July 3 and August 18, 2006, by two citizens of Bosnia and Herzegovina, Dervo Sejdić and Jakob Finci. They complained that they were prevented from running in elections for the House of Peoples and the Presidency of Bosnia and Herzegovina due to their Roma and Jewish origin. They invoked Article 3, 13, and 14, Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12.

After a comprehensive examination of the applications, the European Court of Human Rights ruled on December 22, 2009, that there was a violation of Article 14 in conjunction with Article 3 of Protocol No. 1, concerning the applicants' inability to run for elections to the House of Peoples of Bosnia and Herzegovina; and ruled that there was a violation of Article 1 of Protocol No. 12 due to the applicants' inability to run for elections to the Presidency of Bosnia and Herzegovina.

This judgment would be implemented by deleting the ethnic provisions in the BiH Constitution, so Republika Srpska would elect one member of the BiH Presidency, and the Federation of BiH would elect two members of the Presidency. There is also a possibility that, for example, alongside the ethnic provision, it would state that RS elects a member of the BiH Presidency from among the Serb people and others, and the Federation from among the Croat people and others and the Bosniak people and others. This would implement the Sejdić-Finci judgment, leaving HDZ BiH with the possibility to introduce the so-called “floating electoral unit” through amendments to the BiH Election Law. In that case, members of the BiH Presidency from the Federation would be elected by having one member of the Presidency be the one who wins the most votes throughout the entire Federation, while the second member of the BiH Presidency would be the one who wins in the cantons where the first-ranked candidate did not win. In this way, cantons with a majority Croat population would have a guaranteed member of the BiH Presidency, regardless of the total number of votes they receive.

Azra Zornić v. BiH Judgment

In the case of Zornić v. Bosnia and Herzegovina, the proceedings were initiated by an application (no. 3681/06) against Bosnia and Herzegovina lodged with the Court by a citizen of Bosnia and Herzegovina, Azra Zornić, on December 19, 2005. On June 24, 2014, the European Court of Human Rights delivered a final and binding judgment.

Azra Zornić, who does not identify as a member of one of the “constituent peoples” but as a citizen of Bosnia and Herzegovina, led the Court to assess that this case is identical to the Sejdić and Finci case. Although, unlike the applicants in that case who are of Roma and Jewish origin, the applicant in this case does not identify as a member of any specific group, she was also prevented from running in elections for the Presidency of BiH and the House of Peoples based on her origin.

The Court found that there was a violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 concerning the applicant's inability to run for elections to the House of Peoples of Bosnia and Herzegovina; and that there was a violation of Article 1 of Protocol No. 12 concerning the applicant's inability to run for elections to the House of Peoples of Bosnia and Herzegovina; The Court also ruled that there was a violation of Article 1 of Protocol No. 12 concerning the applicant's inability to run for elections to the Presidency of Bosnia and Herzegovina.

This judgment can also be implemented in a similar way to the Sejdić-Finci judgment, favoring HDZ BiH. It is sufficient to delete the ethnic provisions in the Constitution and amend the BiH Election Law to introduce a “floating electoral unit”.

Ilijaz Pilav v. BiH Judgment

In the case of Pilav v. Bosnia and Herzegovina, the European Court of Human Rights ruled on May 17, 2016. The proceedings in this case were initiated by an application (no. 41939/07) against Bosnia and Herzegovina lodged with the Court by a citizen of Bosnia and Herzegovina, Ilijaz Pilav, on September 24, 2007. The applicant complained particularly about the legal impossibility of running in elections for the Presidency of Bosnia and Herzegovina and voting for a member of his community for that position. He invoked Article 1 of Protocol No. 12 to the Convention.

The applicant is from Srebrenica and identifies as Bosniak (one of the “constituent peoples”). At the time of lodging the application with the Court, he was a member of the National Assembly of Republika Srpska. In 2006, as a candidate for the Party for BiH, the applicant submitted his candidacy for the 2006 elections for the Presidency of Bosnia and Herzegovina. On July 24, 2006, the Central Election Commission of Bosnia and Herzegovina issued a decision rejecting his candidacy. The reasoning stated that the applicant could not be elected to the Presidency from the territory of Republika Srpska given that he identifies as Bosniak. According to Article V of the Constitution and Article 8.1 paragraph 2 of the Election Law from 2001, a candidate for the Presidency from that entity must be a Serb. On September 20, 2006, the Party for BiH and the applicant appealed to the Constitutional Court of BiH, invoking a violation of Article 1 of Protocol No. 12 to the Convention. On September 29, 2006, the Constitutional Court of Bosnia and Herzegovina ruled that there was no violation of that provision (decision no. AP 2678/06).

Although a member of one of the “constituent peoples,” the applicant was excluded from the right to be elected as a member of the BiH Presidency due to the contested requirement related to residency. The Court assessed that this exclusion was based on a combination of ethnic origin and place of residence, both of which serve as grounds for differential treatment falling within the scope of Article 1 of Protocol No. 12, and as such constitutes discriminatory treatment contrary to Article 1 of Protocol No. 12. Therefore, the Court finds that there has been a violation of Article 1 of Protocol No. 12 regarding the applicant's inability to run for elections to the Presidency of BiH.

This judgment, following the example of Sejdić-Finci, can be implemented by deleting the ethnic provision. Thus, for example, Bosniaks from Republika Srpska would gain the right to be elected to the BiH Presidency. At the same time, through amendments to the BiH Election Law, HDZ could be enabled to obtain a “floating” electoral unit.

Svetozar Pudarić v. BiH Judgment

Svetozar Pudarić lodged an application with the European Court of Human Rights due to his inability as a citizen of BiH of Serb nationality residing in the Federation of Bosnia and Herzegovina to run in elections for the Presidency of Bosnia and Herzegovina. In this judgment, the European Court emphasized that it had already determined that a similar constitutional prerequisite constitutes discriminatory differential treatment and a violation of Article 1 of Protocol No. 12 in the Pilav v. BiH judgment, which concerned the inability of Pilav, an ethnic Bosniak residing in Republika Srpska, to run for a member of the BiH Presidency.

The Court also pointed out that the Constitution itself does not explicitly condition the exercise of passive electoral rights on residency requirements (with reference to Articles II.2 and V of the BiH Constitution), and that such a condition was introduced by the BiH Election Law of 2001. The Court reiterated that no provision of domestic law may be interpreted or applied in a manner incompatible with the state's obligations under the Convention, especially if it contradicts the prohibition of discrimination and, more broadly, the principles on which the Convention is based. This certainly applies to the respondent state, whose own Constitution gives the Convention “priority over all other laws”.

The Court found no facts or arguments that could convince it to reach a different conclusion on the merits of this complaint. In light of its own jurisprudence on this matter, the Court ruled that in the present case, the applicant was discriminated against due to his ineligibility to run for the BiH Presidency. Therefore, the Court ruled that there has been a violation of Article 1 of Protocol No. 12 to the Convention.

The implementation is identical to the implementation of the Sejdić-Finci, Zornić, and Pilav judgments. This judgment also leaves open the possibility of introducing a “floating electoral unit” that would accept the demands of HDZ BiH and Zagreb.

Samir Šlaku v. BiH Judgment

In the case of Šlaku v. Bosnia and Herzegovina, the European Court of Human Rights delivered a judgment on May 3, 2016, ruling that there was a violation of Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, concerning the applicant's inability to run for elections to the House of Peoples of Bosnia and Herzegovina, and that there was a violation of Article 1 of Protocol No. 12 concerning the applicant's inability to run for elections to the House of Peoples of Bosnia and Herzegovina and elections to the Presidency of Bosnia and Herzegovina.

The proceedings in this case were initiated by an application (no. 56666/12) against Bosnia and Herzegovina lodged with the Court by a citizen of Bosnia and Herzegovina, Samir Šlaku, on August 8, 2012. The applicant complained that, as a member of the Albanian national minority in BiH, he did not have the right to run for elections to the House of Peoples and the Presidency of Bosnia and Herzegovina.

By deleting the ethnic provision regarding the BiH Presidency and introducing a quota for national minorities in the House of Peoples of the BiH Parliamentary Assembly, this judgment would also be implemented. However, it also leaves open the possibility of introducing a floating canton in favor of HDZ BiH.

Slaven Kovačević v. BiH Judgment

The essence of this judgment is that, in addition to ethnic discrimination, territorial discrimination was also established. The European Court of Human Rights, in fact, states that legitimate representation is discriminatory. Members of the BiH Presidency, according to this judgment, must be elected from the entire territory of the state, not from entities. Delegates to the House of Peoples of the BiH Parliamentary Assembly must be elected from the entire territory of the state. Therefore, the BiH Presidency – one electoral unit. The House of Peoples of the BiH Parliamentary Assembly – one electoral unit. Without entities.

The implementation of this judgment effectively prevents the acceptance of HDZ BiH’s demands regarding electoral legislation. The final judgment in the Kovačević case eliminates any possibility of a third electoral unit.

(Istraga.ba)