The case of Kovačević v. Bosnia and Herzegovina (No. 43651/22), ECHR (Grand Chamber), 25 June 2025 represents a significant step forward in the complex debate on the compatibility of Bosnia and Herzegovina's (BiH) electoral system with the principle of equality and non-discrimination enshrined in the European Convention on Human Rights.

The case involves a Bosnian-Herzegovinian voter residing in Sarajevo who, not formally belonging to any of the three ‘constituent peoples’ (Bosniak, Serb and Croat), complained that it was impossible to exercise the right to vote on fully equal terms for the tripartite Presidency (Art. V, BiH Constitution) and the House of Peoples (Art. IV, BiH Constitution), bodies in which candidacy and election are strictly determined by ethnicity and territory of residence. This structure, which is the result of the 1995 Dayton Accords, has for years continued to provoke intense debate about its conformity with European democratic principles and, in particular, with the established case law starting with the cases of Sejdić and Finci (2009), Zornić (2014), Pilav (2016), Baralja (2019) and Pudarić (2020) and Kovačević (2023).

In the case in question, the applicant argued that the inability to vote for all members of the Presidency and the preclusion from standing as a candidate based on one's civic (rather than ethnic) identity constituted discrimination and a violation of Article 3 of Protocol No. 1 to the ECHR. He did not complain of actual damage to a specific candidacy, but denounced the very structure of the constitutional system of Bosnia and Herzegovina, which he considered inherently discriminatory.

The Grand Chamber, however, declared the appeal inadmissible. From a legal point of view, the Court observed that the complaints submitted by the applicant essentially constituted an abstract challenge to the constitutional structure of Bosnia and Herzegovina, constituting a genuine actio popularis, which is not admissible before the ECHR under Article 35 of the Convention.

Added to this was the particularly severe assessment that the applicant's conduct during the proceedings constituted an abuse of the right of appeal, as he had made statements that were considered deliberately misleading and disparaging towards the judges involved in the domestic proceedings. In the absence of a personal, concrete and current prejudice to the right to vote – an essential condition for the application of Article 3 of Protocol No. 1 – the Court considered that no judgment could be made on the systemic conformity of the Dayton electoral model with the parameters of the Convention. This conclusion is in line with the Court's traditional reluctance to act as a constitutional arbiter in the abstract, reaffirming the need for a direct link between the applicant and the alleged violation.

Of particular interest is the comparison with the previous judgment of the Fourth Section of the ECHR in 2023, also concerning the applicant Kovačević. On that occasion, the judges addressed the merits of the case, finding that the applicant's inability to vote for all members of the Presidency (and not only for the Bosniak or Croat member) constituted a violation of the right to free elections. This ruling, which was innovative and criticised by some observers for the breadth of its interpretation, seemed to pave the way for more effective control by the Court over the constitutional architecture of Bosnia and Herzegovina, while avoiding compromising its political and institutional balance.

The 2025 decision, however, marks a reversal of this trend. The Grand Chamber does not explicitly overturn the substantive assessments of 2023, but significantly restricts the scope of access to conventional justice, emphasising the need for actual individual harm and rejecting attempts to use the Court as a forum for general constitutional review. This change does not so much concern the judgement on the structural discrimination inherent in the institutional system created by the Dayton Constitution – already recognised in numerous previous cases – as the procedural legitimacy of the applicant, which in 2025 is considered lacking both because of the lack of victim status and because of abuse of procedure.

From a systemic perspective, the Grand Chamber's ruling reaffirms a fundamental principle: while recognising the persistent democratic shortcomings of the Bosnian-Herzegovinian model, the Court must operate within the limits of its mandate, which does not include reforming the institutional structure of a member state in the absence of a genuine individual case. At the same time, the sharp departure from the 2023 decision highlights the Court's difficulty in balancing the need to protect the political rights of the citizens of Bosnia and Herzegovina with respect for the constitutional prerogatives and delicate balances of the Dayton Agreement. The result is an ambivalent picture: while in 2023 the Court seemed to be moving towards a more proactive role in promoting the transition to a fully democratic and non-discriminatory system, in 2025 it reaffirmed a cautious and strictly procedural approach.

From this perspective, the Kovačević decision (Grand Chamber, 2025) does not mark a departure from the principles developed in previous case law, but rather represents a reminder of the limits of conventional jurisdiction, leaving – once again – the task of overcoming the persistent ethnocratic distortions of the Bosnian and Herzegovinian legal system to internal political responsibility and constitutional negotiations.

 

(Comment by Edin Skrebo)