October 28, 2025
by Casper Vanspauwen
In Kovačević v. Bosnia and Herzegovina (2025), the European Court of Human Rights (ECtHR) was called upon to rule once again on the compatibility of the Constitution of Bosnia and Herzegovina with the European Convention on Human Rights (ECHR). In Sejdić and Finci v. Bosnia and Herzegovina (2009), the Court had already held that it was not, to the extent that it barred individuals who did not identify as Bosniac, Croat or Serb from standing as candidates for the Presidency or the House of Peoples. This time, however, the applicant mainly alleged that he had been discriminated against with respect to his active right to vote (i.e. the right to vote for the candidate who best aligned with his political preferences, regardless of their ethnicity), rather than his passive right to vote.
In the Chamber judgment (2023), the ECtHR ruled in favour of the applicant (for commentaries, see here, here, here, here and here). However, after the case was relinquished to the Grand Chamber, it declared the case inadmissible on 25 June 2025, due to the applicant’s abuse of the right of application, as well as his overall lack of victim status. While this case is certainly interesting to analyse within its own context, this blogpost will focus on the way it illustrates how the Court has more broadly dealt with hierarchical conflicts between the ECHR and national constitutional law. It will argue that, while the ECtHR has clearly embraced a form of constitutional pluralism (and thus adopted a ‘pluralist turn’), it has avoided clearly delineating the hierarchical relation between the ECHR and national constitutional law in the Kovačević case.
Following the disintegration of Yugoslavia, Bosnia and Herzegovina declared independence in 1992, driven by Bosniacs (Bosnian Muslims) and Croats seeking a sovereign State free from Serbian dominance. The Serb population and forces, however, boycotted the process, triggering a brutal civil war, marked by, among other atrocities, the Srebrenica genocide (1995). After the intervention of the international community, the Dayton Agreement was brokered as a peace treaty, to which the new Constitution of Bosnia and Herzegovina was annexed. In this Constitution, a distinction was made between the so-called ‘constituent peoples’: the House of Peoples, serving as the upper chamber of the legislature, comprised five Croats, five Bosniacs and five Serbs (Article IV.1), and the Presidency consisted of one Bosniac, one Croat and one Serb (Article V).
The applicant, Mr Slaven Kovačević, complained that the combination of ethnic and territorial requirements entrenched in the Constitution had prevented him from voting for candidates of his choice. This, he argued, amounted to discrimination in the exercise of his active right to vote. More precisely, he invoked a violation of Article 14 ECHR (the prohibition of discrimination) in conjunction with Article 3 of Protocol No. 1 ECHR (the right to free elections) and of Article 1 of Protocol No. 12 (the general prohibition of discrimination), in respect of the elections to the House of Peoples. Additionally, he invoked a violation of Article 1 of Protocol No. 12 in respect of the elections to the Presidency.
After the ECtHR had ruled in his favour in its Chamber judgment, the case was referred to the Grand Chamber. During the subsequent proceedings, the applicant challenged the authority of the acting Agents of the Government to represent it before the Court (paras 78, 86-87 and 92-98). The Government, on the other hand, alleged that the applicant had abused his right to individual application (para 119) based on a number of accusations, including, inter alia, that he had made defamatory remarks vis-à-vis the Court’s then President, Síofra O’Leary (para 123), and that he had deliberately concealed and manipulated information about his Croat ethnic affiliation to mislead the Court (para 124). The Government also argued that the applicant lacked victim status (paras 141-147) and that he had failed to exhaust all domestic remedies (paras 218-219).
The first significant procedural issue that the ECtHR had to address was its competence to entertain the present application, which touched upon ‘constitutional rules forming part of a consociational arrangement’ (para 108). The Court confirmed its competence based on two grounds. First, it held that Article 27 of the Vienna Convention on the Law of Treaties stipulates that a State cannot invoke its domestic (constitutional) law to justify the failure to respect its obligations under international law (para 110). Second, it more broadly derived its jurisdiction from Articles 19 and 32 § 1 ECHR (paras 111-113).
The ECtHR subsequently examined two of the Government’s preliminary objections. The first preliminary objection concerned the alleged abuse of the right of individual application by the applicant within the meaning of Article 35 § 3 (a) ECHR. The Court upheld two specific claims in this regard. First, the ECtHR confirmed that the applicant had indeed made several accusations against its then President, Síofra O’Leary, in particular (para 133). More precisely, he had gratuitously accused her of bribery (among other things) in a recusal request (para 9). In the Court’s view, ‘[b]y attacking the Court’s President so disdainfully, the applicant has shown disrespect to the very institution to which he applied for the protection of his rights’ (para 135).
Second, the ECtHR found that the applicant’s withholding of key information regarding his ethnic affiliation as a Croat was deceptive (para 137). In the Court’s own words, ‘the applicant’s failure to inform [it] that he had himself requested the removal of the information relating to his ethnicity from the relevant web page before submitting it to the Court […] is to be considered deceptive regarding a matter of potential relevance to the case’ (para 138).
The second preliminary objection, which the ECtHR decided to examine ‘for the sake of completeness’ (para 140), concerned the applicant’s alleged lack of victim status within the meaning of Article 34 ECHR. More precisely, the Government claimed that the applicant had sought ‘an abstract challenge to the constitutional and electoral system of an actio popularis nature’, rather than the protection of his individual rights (para 164). Concerning the applicant’s victim status in respect of the complaints regarding the elections to the House of Peoples, the Court held that, since the applicant was ‘effectively contesting the fundamentals of the electoral and constitutional system in place’ (para 207), he lacked victim status in this regard (paras 208-210). With regard to his complaints concerning the elections to the Presidency, the Court held that he lacked victim status for essentially the same reasons (paras 211-214).
In his concurring opinion, Judge Pavli argued that the applicant had provided no evidence of any difference in treatment and that this finding would have been sufficient to declare the application inadmissible.
In their joint statement of partial dissent, Judges Bårdsen, Chanturia, Yüksel and Schembri Orland indicated that they voted against the Court’s finding of a lack of victim status, because they believed that there was no need for any further examination after finding that the applicant had abused his right of individual application.
In his dissenting opinion, Judge Vehabović (elected in respect of Bosnia and Herzegovina) expressed his disagreement at length with the majority opinion as a whole. Describing the decision as a ‘strategic retreat’, he argued that the Grand Chamber has ‘effectively shut the door on further Strasbourg litigation on this issue (at least by voters as opposed to would-be candidates), thereby putting the onus back on Bosnia and Herzegovina […] to sort out the problem.’
Many procedural issues were raised in the present case. In particular, one could wonder whether an applicant really lacks victim status if the entire population is affected by the impugned (constitutional) legislation. However, what is most striking about this decision – from the angle of this blogpost – is that after having found that the applicant had abused his right to individual application, the ECtHR nevertheless went on to confirm his lack of victim status.
As Judges Bårdsen, Chanturia, Yüksel and Schembri Orland rightly argued, this was not at all necessary for declaring the application inadmissible – especially since the Court later decided that there was no need to examine whether the applicant had exhausted all domestic remedies (para 219). The reason why the Court was so determined to rule on the applicant’s lack of victim status may have been, as Judge Vehabović observed, to avoid similar cases being brought before it in the future by dissatisfied voters in Bosnia and Herzegovina. More broadly, it appears that the Court sought to limit future cases involving clashes between the ECHR and national constitutional law as much as possible.
To better understand the ECtHR’s perspective, it is necessary to consider both its prior evolution and the most recent developments in its case-law. After the end of the Cold War, there was significant optimism about liberal democracy and human rights, especially in Central and Eastern European States, many of which would gradually join the ECHR system throughout the 1990s. As a result, the ECtHR felt emboldened to proclaim the ECHR a ‘constitutional instrument of European public order’ (Loizidou v. Turkey (1995), para 75). At the time, this also meant that from the ECtHR’s perspective, the ECHR was hierarchically superior to national constitutional law (Demicoli v. Malta (1991); Open Door and Dublin Well Woman v. Ireland (1992); Gitonas and Others v. Greece (1997)). In United Communist Party of Turkey and Others v. Turkey (1998), the Court derived this hierarchical supremacy explicitly from Article 1 ECHR (paras 29-30).
Despite the fierce political and judicial backlash that the ECtHR faced from the early 2000s onwards (and the so-called ‘procedural turn’ that the Court adopted in response to that), the Court did not deviate from this stance for the next two decades. On the contrary, in Sejdić and Finci v. Bosnia and Herzegovina (2009), as already discussed, the ECtHR found the Constitution of Bosnia and Herzegovina to be structurally incompatible with the ECHR – and in Baka v. Hungary (2016), the Court confirmed that the Hungarian constituent power had violated Articles 6 and 10 ECHR by undermining judicial independence.
This began to change only in the direct aftermath of the Russian invasion of Ukraine (2022). In Savickis and Others v. Latvia (2022), the ECtHR recognised the protection of a State’s constitutional identity as a legitimate aim for restricting rights under the ECHR for the first time (para 198). Although it still engaged in a proportionality assessment, the (implicit) use of this argumentation has consistently led the Court in practice to find no violation of the Convention, as I have analysed in much more detail here. In Valiullina and Others v. Latvia (2023), it even clarified that such argumentation would pass the proportionality test as long as its usage is not ‘arbitrary’ (para 208).
The link between these cases and the Russian invasion of Ukraine became explicit in Ždanoka v. Latvia (no. 2) (2024) (para 55): ‘[T]he Court cannot ignore the fact that on 24 February 2022 Russia launched a military invasion of Ukraine […] Even if this attack occurred after the present application had been lodged […] it is nevertheless […] of relevance for the purposes of the present case.’ However, in Costa i Rosselló and Others v. Spain (2025), the Court recognised the broader notion of the protection of the constitutional order as a legitimate aim (para 133), thus generalising the applicability of such argumentation beyond the context of the Russian invasion of Ukraine.
Hence, it has become clear that the ECtHR has embraced a form of constitutional pluralism through a ‘pluralist turn’: while it continues to insist on the hierarchical supremacy of the ECHR (see also para 110 of the present case), it now also admits that national constitutional law can (very) significantly limit this supremacy. However, the Court has never clarified the precise boundaries within which the latter can prevail. The remaining tensions between both norms have now spectacularly converged in the post-2022 Kovačević case, which may explain why the ECtHR appeared quite eager to declare it inadmissible. On the one hand, overruling Sejdić and Finci (though not free from criticism) would have amounted to a complete surrender, since it had been reaffirmed many times (see Zornić v. Bosnia and Herzegovina (2014); Šlaku v. Bosnia and Herzegovina (2016); Pilav v. Bosnia and Herzegovina (2016); Pudarić v. Bosnia and Herzegovina (2020)) and remains unexecuted to date; but on the other hand, ruling in favour of the applicant again – and thus upholding the Chamber judgment – would have further opened Pandora’s box, potentially leading to large-scale constitutional conflict in future cases.
Aside from perhaps a broader concern about its general caseload, it appears that the ECtHR wanted to evade yet another conflict with a State’s constitutional order. More generally, it appears that the Court now seeks to avoid delving too deeply into the extremely sensitive hierarchical tensions between national constitutional law and the ECHR. In that sense, the Kovačević case can be seen as a disappointment: while it might be true that it will no longer have to deal with applications from dissatisfied voters from Bosnia and Herzegovina seeking to frontally challenge their constitutional order, this will not prevent other respondent Governments from (abusively) seeking to shield their constitutional orders as much as possible from its scrutiny, through the precedents of Savickis and Costa i Rosselló. The more such cases arise, the more difficult it will become for the Court to set clear boundaries in the future.
In Kovačević v. Bosnia and Herzegovina (2025), the applicant complained that the Constitution of Bosnia and Herzegovina discriminated against him by not allowing him to vote for his preferred candidates for the House of Peoples and the Presidency due to ethnic and territorial restrictions. In its decision, the Grand Chamber of the ECtHR declared the case inadmissible, thereby overruling its Chamber judgment (2023). By basing its decision on the applicant’s lack of victim status (within the meaning of Article 34 ECHR) as an additional ground for inadmissibility, the Court has not only avoided another frontal clash with the constitutional order of Bosnia and Herzegovina, but also closed the door for analogous cases in the future.
This may be explained through the ‘pluralist turn’ that the ECtHR has adopted in the aftermath of the Russian invasion of Ukraine, through which it has embraced a form of constitutional pluralism. While this means that the Court now generously accepts limitations on the supremacy of the ECHR in the name of the protection of the constitutional order or identity, it remains unclear how the ECtHR now envisions the hierarchical relation between the ECHR and national constitutional law. The Kovačević case shows that it remains very reluctant to delve into this extremely sensitive issue and seeks to avoid it as much as possible. From a normative perspective, this is regrettable, as it further opens the door for abuse by respondent Governments in future cases, thereby risking the undermining of the ECtHR’s authority.
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