The European Court of Human Rights (ECHR) convened today to hear the case of “Kovacevic v. Bosnia,” a significant legal challenge addressing voting rights and electoral discrimination. The case pertains to Slaven Kovacevic, a citizen of Bosnia and Herzegovina (BiH) and Croatia, who claims he was unable to vote for candidates of his choice in the 2022 legislative and presidential elections due to a combination of territorial and ethnic voting requirements entrenched in the country’s constitution and electoral system.

Kovacevic, a political scientist and advisor to a member of Bosnia’s Presidency, filed his application with the ECHR on August 30, 2022. His legal arguments rely on Article 14 (prohibition of discrimination) of the European Convention on Human Rights, in conjunction with Article 3 of Protocol No. 1 (right to free elections) and Article 1 of Protocol No. 12 (general prohibition of discrimination). He contends that the voting restrictions in BiH violate his fundamental rights as they limit electoral participation based on ethnicity and residency.

Background of the case

Bosnia’s electoral framework stems from the Dayton Peace Agreement, which ended the 1992–1995 war. The country is divided into two entities, the Federation of Bosnia and Herzegovina (FBiH) and the Republika Srpska (RS), alongside the Brcko District. The constitution distinguishes between “constituent peoples” (Bosniaks, Croats, and Serbs) and “Others,” a category that includes ethnic minorities and individuals who do not identify with any ethnic group.

These distinctions are reflected in the composition of state-level institutions:

– The House of Peoples of the Parliamentary Assembly includes ethnic quotas—five Bosniaks and five Croats from FBiH and five Serbs from RS.
– The Presidency comprises three members: one Bosniak and one Croat from FBiH, and one Serb from RS.

This arrangement excludes citizens who do not belong to the “constituent peoples” or who live in areas where their ethnicity is not represented. Kovacevic, who resides in FBiH but does not identify with any of the three dominant ethnic groups, was ineligible to vote for certain positions in the 2022 elections.

Previous rulings

In August 2023, the ECHR ruled by a 6-1 majority that Bosnia and Herzegovina had violated Kovacevic’s rights under Article 1 of Protocol No. 12, which prohibits discrimination. The court found that the existing electoral rules failed to provide him with effective representation in the House of Peoples and the Presidency. Following this ruling, the Bosnian government requested a referral to the Grand Chamber, which was granted in December 2023.

Hearing details

Wednesday’s hearing marks the next stage in the case, with the court considering Kovacevic’s claims and Bosnia’s defense. The deliberations will take place privately, and a final judgment will be issued later.

The case has drawn significant international attention due to its implications for human rights and governance in BiH. It also raises broader questions about the country’s complex political structure, which many argue entrenches ethnic divisions.

Controversy surrounding the High Representative

The proceedings have been overshadowed by controversy regarding the involvement of Christian Schmidt, the High Representative for Bosnia and Herzegovina. Schmidt initially indicated he might testify before the Grand Chamber, but following public backlash, his office clarified that he would not appear in person. Instead, an amicus curiae brief was submitted to the court.

Prominent international intellectuals, including Professor Frances Boyle and journalist Florence Hartmann, have expressed scepticism about Schmidt’s role in the case. In a letter to the ECHR, they questioned his credibility and impartiality, citing his past actions in BiH.

Broader implications

Kovacevic’s case underscores longstanding criticisms of BiH’s electoral system, which has been described as discriminatory by international human rights bodies. While the Dayton Agreement succeeded in ending the war, many argue that its constitutional framework hinders democratic development and integration into the European Union.

International observers are closely watching the case, as its outcome could have significant ramifications for Bosnia and Herzegovina’s political system and its path toward EU membership.