The Case of Slaven Kovačević and the Struggle for Equal Political Representation in BiH

The most recent case, dated August 29, 2023, involves Slaven Kovačević. Currently an advisor to the Chairman of the BiH Presidency Željko Komšić, Kovačević brought his concerns to the ECtHR, asserting that his rights are at risk. 

Kovačević, born in Sarajevo, does not declare affiliation to any particular ethnic group. He complained that he lacks representation in the House of Peoples, where positions are exclusively reserved for Bosniaks, Serbs, and Croats. It prevents him from voting for candidates who best represent his political views but are of a different ethnic origin. Kovačević highlighted his inability to vote for the candidates of his choice during the 2022 legislative elections. The ECtHR identified a breach of the applicant’s right not to be discriminated against. It ruled that members of the House of Peoples must be elected from the entire territory of BiH rather than just its separate entities. 

Similarly, he was unable to vote for the candidates of his choice in the last presidential elections, held in 2022. His choice was limited to voting only for the Bosniak or Croat member, excluding the option to vote for the Serb member, which only citizens from Republika Srpska have the opportunity to do so. It prevents him from voting for candidates who best represented his political views but stood for election in the other entity. 

The ECtHR recognised two instances of discrimination in this case. The first pertained to the applicant’s right to representation in the House of Peoples, while the second concerned his voting rights in the Presidency of BiH, where the pool of eligible candidates was limited to Bosniak and Croat members. The court underscored that political representation should not be overridden by ethnicity, as stated by the ECtHR: „no one should be compelled to vote solely based on prescribed ethnic divisions, regardless of their political beliefs“. 

The essence of Kovačević’s argument was that BiH operates as an „ethnocracy“ rather than a true democracy due to its power-sharing arrangement. In this system, ethnicity, not citizenship, determines access to power and resources, with three dominant ethnic groups controlling state institutions to pursue their interests, relegating others to second-class citizenship.

The August 2023 ECtHR ruling in the case of Kovačević emphasises continuity with past rulings where discrimination against individuals not affiliated with the main ethnic groups for political candidacy was identified. However, the Kovačević case further extends the scope of past rulings to cover active voting rights as well. 

BiH’s EU Aspirations: The Crucial Role of ECtHR Ruling Implementation

BiH’s journey toward EU accession faces challenges stemming from internal divisions, leaving the country seemingly stuck in transition even after 25 years since the war ended. Despite a deteriorating political situation, BiH received candidate status for EU membership in December 2022 due to the new geopolitical importance of the EU integration process in the wake of the Russian war against Ukraine.

For BiH to secure a place within Euro-Atlantic institutions, its leaders have to implement the ECtHR rulings. The ECtHR’s judgment in the Kovačević vs. BiH case could potentially spark tensions in the accession preparation process. The verdict exposes flaws in the current constitutional system and underscores the vital importance of constitutional reform. 

The Court determined that the present political system prioritises ethnic representation over political, economic, philosophical, and other factors. This exacerbates ethnic divisions and undermines the democratic nature of elections. It suggests that constituent nations hold a privileged position within this system. BiH’s Constitution does not comply with the European Convention on Human Rights, as determined by the rulings in the Kovačević and related cases. 

To successfully implement ECtHR judgments, local politicians have to be willing to compromise and engage in negotiations and consensus-building. However, the ethnopolitical leaders in BiH are unlikely to act, not because of the complexity of implementation but rather due to the absence of sanctions for non-compliance. Implementing these judgments would jeopardise their existing powers. For instance, if they were to alter the composition of the House of Peoples, they would lose the ability to obstruct various political processes.

In 2010, ECtHR judge Faris Vehabovic identified five key issues hindering constitutional reform in Bosnia and Herzegovina: the institutional setup created as a part of the Dayton peace deal,  the psychology of ethnic groups in an environment of political mistrust, party system fragmentation within ethnic groups, the disunity of the international community, and disrespect for the constitutional order. 

These reasons still remain relevant, possibly explaining the ongoing failure to agree on constitutional amendments. The non-execution of ECtHR judgments aligns with the broader pattern of public authorities within the state not to enforce decisions from the BiH Constitutional Court either. 

To end the cycle, the EU should urge Bosnia and Herzegovina to reopen constitutional reform discussions, ensuring they are inclusive and transparent. Genuine, lasting change requires consensus-building from the grassroots level upward, empowering diverse voices beyond nationalist leaders. Civil society must lead, engaging with the EU to mobilise the population, monitor progress, and hold leaders accountable. The objective is to find leaders with the determination to establish genuine democracy, steering clear of nationalist rhetoric prevalent in both current and historical contexts.