Kovačević v. Bosnia and Herzegovina: the complete guidelines for the constitutional reform in B&H

by Benjamin Nurkić

In the recently announced judgment in the case of Kovačević v. Bosnia and Herzegovina (B&H), the European Court of Human Rights (ECtHR) has found a violation of Article 1 of Protocol No. 12 regarding the complaint about the composition of the House of Peoples of the Parliamentary Assembly of B&H, and regarding the complaint about the elections to the Presidency of B&H. The applicant also raised arguments under Article 3 of Protocol No. 1 in conjunction with Article 14 of the European Convention on Human Rights (ECHR), and Articles 13 and 17 of the ECHR. However, this part of the application has been declared inadmissible because the applicant failed to exhaust all available domestic remedies (Article 3 of Protocol No. 1 in conjunction with Article 14) and because the remainder of the application was manifestly ill-founded within the meaning of Article 35 § 3 (a) of the ECHR. The judgment in this case detected the discrimination of ‘Others’ and all citizens of B&H who are not affiliated with the constituent peoples (Bosniacs, Serbs and Croats) regarding the composition of the House of Peoples and regarding the way of electing members of the Presidency of B&H. The new judgment set old/new requirements for B&H pertaining to its constitutional order. Accordingly, B&H must amend the composition of the House of Peoples and the way members of the Presidency of B&H are elected. In this text, I argue that, with this judgment, and along with other judgments concerning the constitutional order of B&H, the ECtHR has now set complete guidelines for constitutional reform in B&H.

Summary of the judgment

Slaven Kovačević (the applicant) was born in Sarajevo, where he lives. He is a political scientist and a political adviser to a member of the Presidency of B&H. In the first order, the applicant complained that he, as a non-member of the constituent peoples, is not represented in the House of Peoples, since its positions are exclusively reserved for Bosniacs, Serbs, and Croats (Art. IV of the B&H Constitution). The concept of the ‘constituency of peoples’ prescribes that only people who affiliate with the constituent peoples can be elected to the Presidency of B&H and can be designated to the House of Peoples. The ECtHR found a violation of the applicant’s right not to be discriminated against under Article 1 of Protocol No. 12. (Kovačević v. B&H, para. 62). In addition, he complained with the ECtHR because, during the last elections for the Presidency of B&H, his choice was limited since he was able only to vote for the Bosniac or Croat member of the Presidency. He was unable to vote for the Serb member of the Presidency since only citizens from the Republika Srpska (RS) have this possibility. This was the case because of the mix of territorial and ethnic criteria, that are prescribed by the B&H Constitution, on account of which citizens from the Federation of B&H (FB&H) can vote only for a Bosniac or a Croat member of the Presidency, and citizens from the RS can vote only for a Serb member of the Presidency of B&H (Art. V of the B&H Constitution). Accordingly, the applicant’s choice was restricted. The ECtHR stated that ‘no one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint’, and therefore considered the right of the applicant under Article 1 of Protocol No. 12 to have been violated (Kovačević v. B&H, para. 74). Thus, the ECtHR identified two forms of discrimination in this case. The first discrimination concerned the applicant’s right to be represented in the House of Peoples, and the second form pertained to his active voting rights concerning the Presidency of B&H where the eligible pool of candidates was restricted to only Bosniac and Croat members in the last elections.

The ECtHR’s first requirement

In this case, the ECtHR followed its established practice regarding the composition of the Bosnian House of Peoples (see: Sejdić and Finci v. B&H; Zornić v. B&H; Pilav v. B&H; Šlaku v. B&H; Pudarić v. B&H). So, the stated requirement concerning the composition of the House of Peoples, in this case, had already been manifested in all of the above-mentioned judgments. That requirement stipulates: ‘(…) the time has come for a political system which will provide every citizen of B&H with the right to stand for elections to the Presidency and the House of Peoples of B&H without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of B&H’ (Zornić v. B&H, para. 43). But, in this case, the applicant’s complaint did not concern his inability to stand for elections to the House of Peoples, but the fact that he is not represented in the House of Peoples, as a citizen who is not a member of the constituent peoples. This cannot be considered as an active suffrage right because members of the House of Peoples are elected indirectly. More precisely, members of the House of Peoples are designated from the House of Peoples of the FB&H (Bosniac and Croat members) and from the National Assembly of the RS (Serb members). Thus, citizens are not involved, directly, in the process of electing members of the Bosnian House of Peoples.

However, the ECtHR stated about the composition of the House of Peoples ‘(…) that all segments of society should be represented in the House of Peoples’ (Kovačević v. B&H, para. 55). The requirement in this judgment can be enforced in two ways. The first way is to amend the composition of the House of Peoples and to enable all citizens of B&H to stand for elections to the House of Peoples, so that all citizens will be represented in the House of Peoples. The second way is to limit the powers of the House of Peoples. After all, the House of Peoples still has the same powers as the House of Representatives. As previously explained, members of the House of Peoples are designated indirectly. Conversely, members of the House of Representatives are elected directly by citizens. Although the House of Peoples lacks democratic legitimacy, this state body has the same powers as the House of Representatives which represents all citizens of B&H. Thus, for the ECtHR, the House of Peoples with this composition ‘(…) would have been acceptable in the special case of B&H, had the powers of the House of Peoples been limited to the precisely, narrowly and strictly defined vital national interests veto of the “constituent peoples”’ (Kovačević v. B&H, para. 55). Hence, the solution to comply with the ECtHR’s requirement for the House of Peoples is to either amend the composition of the House of Peoples, or to limit its powers. Although the ECtHR did not deal with the problem of the composition of the Presidency of B&H in the Kovačević judgment, in the previous judgments the ECtHR had stated that all citizens, regardless of ethnic affiliation, should be able to stand for elections to the Presidency (Sejdić and Finci v. B&H, para. 56). Here, the ECtHR reasoned in the same manner: if a state body deals with lives of all citizens, then all citizens should be able to stand for elections to that state body.

The ECtHR’s second requirement

In the Kovačević v. B&H case, for the first time, the ECtHR found a violation of the active suffrage of citizens of B&H. Namely, citizens of the FB&H are not able to vote for the Serb member and citizens of the RS are not able to vote for the Bosniac and Croat member of the Presidency of B&H. This combination of territorial and ethnic requirements the ECtHR considered a discrimination against citizens of B&H. Therefore, the ECtHR stated, ‘(…) no one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint’ (Kovačević v. B&H, para. 74). So, citizens of B&H ought to have the possibility to vote for anyone who represents their political views regardless of the ethnic affiliation of a candidate. The simplest way to implement this requirement for B&H is for it to become one electorate district. However, this would additionally require the implementation of all the above-mentioned ECtHR judgments. This means that B&H ought to amend the composition of the Presidency of B&H as well, so that the B&H Constitution would no longer exclusively award positions to members of the constituent peoples. Then, this new requirement introduced in Kovačević could be implemented, if members of the Presidency were able to be elected from the entire territory of B&H.

Dissenting opinion – the impact of the judgment on the ECtHR’s practice

Gabriele Kucsko-Stadlmayer (one of the Judges in this case) wrote a dissenting opinion in this case. Her first argument concerned the admissibility of the application. The Judge argued that this application was inadmissible because the applicant did not exhaust all domestic remedies. More precisely, the applicant did not complain to the Central Electoral Commission and the Constitutional Court of B&H (CCB&H). The Judge pointed out that the CCB&H has broad jurisdiction, and it can review the compatibility of any law with the B&H Constitution and also with the ECHR (Kovačević v. B&H, dissenting opinion, para. 6). The dissenting Judge, therefore, wondered why the ECtHR declared the case admissible when the applicant had not complained to the CCB&H which can also review provisions of the Constitution, in accordance with the ECHR. This is a fair question. As the Judge pointed out, in many cases, the CCB&H reviews provisions of the B&H Constitution. This is a more formal approach to this problem. However, the ECtHR took a more substantial approach by considering the CCB&H’s practice in cases where the CCB&H reviewed provisions of the B&H Constitution. The CCB&H has never stated that a provision of the B&H Constitution is not in line with the Constitution (see: Tihić v. B&H; Pilav v. B&H). Therefore, the ECtHR declared ineffective any remedies before the CCB&H as far as they concern the review of provisions of the B&H Constitution because the ECtHR thought it clear what the CCB&H would have decided had the applicant filed a complaint before the CCB&H. Of course, this will raise the question in further cases, whether domestic remedies could be considered as ineffective, solely because an applicant knows that their complaint will not be accepted before a domestic court.

            The second problem, in this case, according to Kucsko-Stadlmayer, involved the discrimination based on representation. The judge stated that the ECtHR in this case ‘(…) insinuates an unprecedented concept in which every voter has an individual right to candidates by whom he or she is “represented”’ (Kovačević v. B&H, dissenting opinion, para. 20). This is the essential question of this case. Did the ECtHR set too abstract standards concerning the right to be represented, which ones did it set, and what does the right to be represented mean? I understand certain arguments raised in this dissenting opinion – not every citizen can be represented individually, for example, in a parliamentary assembly. However, I do not think the ECtHR argues with this judgment that every citizen should be represented in a parliamentary assembly. Rather, I think the ECtHR argues that all segments of society ought to have a chance to be represented in the institution (like the House of Peoples) that confirms all laws. So, according to the ECtHR, if a state body deals with the lives of all citizens, then all citizens should have a chance to be represented in that institution, regardless of ethnic affiliation. Regarding the question of whether every voter (citizen) has a right to vote for anybody who represents his political views and interests, I would argue that the dissenter approached this question from an overly individual perspective. The Judge wondered, since the applicant is a political advisor of a member of the Presidency of B&H, why this specific member was not his choice in the last election (Kovačević v. B&H, dissenting opinion, para. 21). This judgment is not related only to the applicant, but to all citizens of B&H in the same position, so the question is not why the applicant could not vote for Željko Komšić (to whom the applicant is a political adviser), but why citizens of FB&H could not vote for Serb members, and citizens of the RS for Bosniac and Croat members for the Presidency of B&H.

With this judgment, the ECtHR set high standards for justifying any type of differential treatment based on ethnic criteria under Article 1 of Protocol 12 of the ECHR. Thus, for all countries that ratified this Protocol, the protection of collective rights will be a problem if they do not justify the protection with strong arguments.

The complete guidelines for the constitutional reform

With this judgment, the ECtHR has stated the complete guidelines for the constitutional reform in B&H. Prior to this judgment, the ECtHR had already ruled that B&H ought to amend the composition of the House of Peoples and the Presidency of B&H. Now, in accordance with this judgment, B&H ought to amend the way members of the Presidency of B&H are elected as well. Why are these judgments important to B&H? In the domestic context, they are important because of the position of the ECHR in the B&H Constitution which prescribes the primacy of the ECHR over all law, including the Constitution (Art. II (2) of the B&H Constitution). Thus, all institutions, including the CCB&H, ought to follow the practice of the ECtHR in B&H. In the international context, it is important because of B&H’s path towards accession to the European Union (EU). Without any constitutional reform, B&H cannot access the EU, and the ECtHR, with this judgment, has now issued complete guidelines on how to implement constitutional reform that will satisfy EU standards. However, these complete guidelines at this moment seem too optimistic, and ethnopolitical leaders in B&H probably will not implement any of the above-mentioned ECtHR judgments in B&H. Not because it is too complex to implement them, but because they will not be sanctioned for the non-implementation. Additionally, if they had implemented all these judgments, then they would have lost their powers. For example, if B&H amended the composition of the House of Peoples, then ethnopolitical leaders would not be able to obstruct political processes in B&H. Thus, ethnopolitical leaders are not keen on implementing these judgments.