Kovačević v Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina has its origins in the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina, commonly known as the Dayton Agreement. Since then, Bosnia and Herzegovina has been composed of two “Entities”, namely the Federation of Bosnia and Herzegovina (“the Federation”) and the Republika Srpska (plus the Brčko District, which belongs to both).

The Constitution makes a distinction between (i) “constituent peoples”, i.e. persons who declare affiliation with Bosniacs, Croats and Serbs; and (ii) “others”, i.e. persons who do not declare affiliation with any of those groups. It is open to each individual to decide whether to declare affiliation with any of the “constituent peoples”.

The Constitution sets out power-sharing arrangements between the “constituent peoples”. For instance, the Presidency comprises three members: one Bosniac and one Croat from the Federation and one Serb from the Republika Srpska. This means that, for example, a person resident in the Federation has no opportunity to vote for any candidate for the Presidency who has not self-declared as either a Bosniac or a Croat.

The Applicant resides in the Federation and complained that the combination of territorial and ethnic requirements prevented him from voting for the candidates of his choice in legislative and presidential elections held in 2022. He alleged violations of Article 14 (read with Article 3 of Protocol 1) and Article 1 of Protocol 12 of the European Convention on Human Rights.

The Grand Chamber has held the application to be inadmissible, on the basis that the applicant (i) has abused the right of application within the meaning of Article 35 § 3 of the Convention; and (ii) lacks victim status.

Exceptionally, the Grand Chamber handed down its judgment without full written reasons, which are to be published at a later date.

Tim Otty KC and George Molyneaux acted for the High Representative for Bosnia and Herzegovina, who was granted permission to intervene in the proceedings.

Please see the press release here.