Last Updated on August 29, 2023 by LawEuro
Legal summary
August 2023
Kovačević v. Bosnia and Herzegovina – 43651/22
Judgment 29.8.2023 [Section IV]
Article 1 of Protocol No. 12
General prohibition of discrimination
Inability of applicant, due to a combination of territorial and ethnic requirements, to vote for candidates of choice in legislative and presidential elections at State level: violation
Facts – The applicant is a citizen of Bosnia and Herzegovina and lives in Sarajevo, situated in the Federation. It would appear that he does not declare affiliation with any of the country’s “constituent people” (Bosniacs, Croats and Serbs) or with any other ethnic group. Due to a combination of territorial and ethnic requirements he was unable to vote for the candidates of his choice in the latest legislative and presidential elections at State level which took place in Bosnia and Herzegovina in 2022.
Law – Article 1 of Protocol No. 12:
(a) Complaint concerning the composition of the House of People of the Parliamentary Assembly of Bosnia and Herzegovina –
(i) Applicability – Under domestic law the applicant had been clearly entitled to vote in the latest elections to the Assembly of the Sarajevo Canton and, indirectly, in elections to the second chamber of the State Parliament – the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (“House of Peoples”). Thus, the applicant’s complaint that he had been discriminated against in the enjoyment of that right concerned a “right set forth by law”. Moreover, in view of the powers of the House of Peoples, the functions it fulfilled on behalf of the citizens involved both legal obligations and discretionary powers. The applicant’s ability to influence decisions made in respect of himself and those like him had been reduced by the fact that he had been and still was unable to participate in the exercise of any of those powers. Therefore, Article 1 of Protocol No.12 was applicable.
(ii) Merits – The House of Peoples comprised fifteen delegates: five Bosniacs, five Croats from the Federation and five Serbs from the Republika Srpska. In order to indirectly participate in the election of Bosniac and Croat delegates to the House of Peoples, the applicant had to vote for persons who had declared affiliation with Bosniacs and Croats in elections for his cantonal assembly (the Assembly of the Sarajevo Canton) because only the Bosniac and Croat caucuses of that Assembly elected Bosniac and Croat delegates to the House of Peoples of the Parliament of the Federation, who, in turn, elected Bosniac and Croat delegates to the House of Peoples (of the Parliamentary Assembly). It followed from the combination of the relevant territorial and ethnic requirements that the applicant, as a resident of the Federation, could not participate in the election of Serb delegates to the House of Peoples. The Government’s argument that the applicant could have changed his permanent residence was not convincing because a false declaration of permanent residence was an offence and social benefits were strictly linked to place of residence and not the same in different parts of the country. Accordingly, the applicant was treated differently than persons from the Federation who declared affiliation with Bosniacs and Croats and persons from the Republika Srpska who declared affiliation with Serbs.
The Court considered the historical context, notably that the above-mentioned arrangements had been designed to end a brutal conflict marked by genocide and “ethnic cleansing” and the nature of the conflict had been such that the approval of the “constituent peoples” had been necessary to ensure peace. Therefore, it was conceivable that the existence of a second chamber, composed of representatives of the “constituent peoples” only, would have been acceptable in the special case of Bosnia and Herzegovina, 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”. However, the House of Peoples was currently a chamber with full legislative powers and the Constitution provided that all legislation required the approval of both chambers. That being the case, it was of the utmost importance that all segments of society should be represented in the House of Peoples. In that connection, in addition to excluding certain citizens from that chamber on the grounds of their ethnicity, the current arrangements had rendered ethnic considerations and/or representation more relevant than political, economic, social, philosophical and other considerations and/or representation and thus had amplified ethnic divisions in the country and undermined the democratic character of elections.
The Government’s argument that the time was still not ripe for a political system which would be a simple reflection of majority rule had already been dismissed by the Court. In Sejdić and Finci v. Bosnia and Herzegovina [GC] it held that while the Convention itself did not require the respondent State to totally abandon the power-sharing mechanisms peculiar to it, the Opinions of the Venice Commission clearly demonstrated the existence of mechanisms of power-sharing which did not automatically lead to the total exclusion of representatives of the other communities. Moreover, in Zornić v. Bosnia and Herzegovina the Court noted that eighteen years after the end of the tragic conflict in Bosnia and Herzegovina the time had come for a political system which would provide every citizen of that country with the right to stand for elections to the Presidency and the House of Peoples without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or other citizens.
The Court saw no reason to depart from that case-law. Indeed, a reform of the electoral system was an outstanding post-accession obligation of Bosnia and Herzegovina. Nor was there reason to disagree with the finding of Constitutional Court of Bosnia and Herzegovina that the situation examined in Mathieu-Mohin and Clerfayt v. Belgium had been significantly different from a domestic electoral system based on the concept of the “constituent peoples”. Lastly, although the Convention did not prohibit Contracting Parties from treating groups differently to correct “factual inequalities” between them, none of the “constituent peoples” was in the factual position of an endangered minority which must preserve its existence. On the contrary, the “constituent peoples” clearly enjoyed a privileged position in the current political system.
Conclusion: violation (six votes to one).
(b) Complaint concerning restrictions on the right to vote stemming from the composition of the Presidency of Bosnia and Herzegovina – The Presidency of Bosnia and Herzegovina was made up of three members: one Bosniac, one Croat, each directly elected from the territory of the Federation, and one Serb, directly elected from the territory of the Republika Srpska. The Court’s finding that the combination of territorial and ethnic requirements amounted to discriminatory treatment in breach of Article 1 of Protocol No. 12 in the context of the right to participate in elections to the House of Peoples, also held true in respect of the right to vote in elections to the Presidency of Bosnia and Herzegovina. The applicant did not have the option of voting for candidates who did not declare affiliation with any of the “constituent peoples” (since such candidates were not even entitled to stand for election). Furthermore, being a resident of the Federation, the applicant was not entitled to vote for the candidates who had declared affiliation with Serbs. Therefore, unlike persons from the Federation who had declared affiliation with Bosniacs and Croats and persons from the Republika Srpska who had declared affiliation with Serbs, the applicant was not genuinely represented in the collective Presidency. He was thus treated differently on the grounds of his place of residence and ethnicity. The Presidency was a political body of the State and its policy and decisions affected all citizens of Bosnia and Herzegovina, whether they lived in the Federation, the Republika Srpska or the Brčko District. Therefore, the political activity of the collective Head of State was a matter that clearly had concerned the applicant. Peace and dialogue were best maintained by an effective political democracy of which the ability to freely exercise one’s right to vote was a pillar. Therefore, no one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint. Even if a system of ethnic representation was maintained in some form, it should be secondary to political representation, should not discriminate against “Others and citizens of Bosnia and Herzegovina” and should include ethnic representation from the entire territory of the State.
Conclusion: violation (six votes to one).
Article 41: no claim made.
(See also Mathieu-Mohin and Clerfayt v. Belgium, 9267/81, 2 March 1987; Sejdić and Finci v. Bosnia and Herzegovina [GC], 27996/06 and 34836/06, 22 December 2009, Legal Summary; Zornić v. Bosnia and Herzegovina, 3681/06, 15 July 2014, Legal Summary; Pilav v. Bosnia and Herzegovina, 41939/07, 9 June 2016, Legal Summary)
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