A Fallen Curtain and Open Questions

On 25 June 2025, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its Decision on Kovačević v. BiH. This ruling could completely change the legal assessment of strict ethnic quota systems in political institutions for worse. While the case originates from Bosnia and Herzegovina (BiH), it will likely have far-reaching political consequences for other power-sharing systems in and beyond Europe, as well. Although the detailed reasoning is missing so far, the brief statements in the decision already provide some outlook on its effects. Crucially, it is prone to “overrule” all previous judgments of the ECtHR against BiH. This means that it will render all future efforts to support constitutional reform in the country futile, because it seems to legitimize the de facto strict ethno-national cartel of power materialized in its constitution.

Exclusion from the right to free elections

Articles IV and V of the Constitution of Bosnia and Herzegovina (BiH), an annex to the Dayton Peace Agreement concluded in December 1995, set exclusive ethnic quotas in the composition of the House of Peoples (HoP) – the second chamber of the Bosnian parliament – and the three-member Presidency for the countries’ “constituent peoples”, namely Bosniacs, Croats, and Serbs. This means that all “Others” are excluded from access to these public offices by constitutional fiat – whether they declare to belong to one of the legally recognized national minorities or refuse any ethnic self-declaration because they want to exercise their individual rights as constitutionally recognized “citizens” and nothing else. In five judgments since 2009, the ECtHR found that Bosnia and Herzegovina violated Article 3 Protocol No.1 of the European Convention on Human Rights (ECHR), the right to free elections. In the settled case law of the ECtHR since Mathieu-Mohin and Clairfayt v. Belgium (1987) this article guarantees all citizens the (active) individual right to vote as well as the (passive) right to stand as a candidate in elections for the legislature. Based on the claims of the applicants to have been violated in the latter, all five judgments found a violation of this right in conjunction either with the prohibitions of discrimination in Article 14 ECHR as regards the HoP or in conjunction with Article 1 Protocol No. 12 ECHR as regards the Presidency. According to the case law of the ECtHR, these latter provisions prohibit inter alia ethnic discrimination.

The first of these cases, Sejdić and Finci v. BiH (2009) already made the overall political and constitutional problematique that extends to countries beyond BiH very clear: Is the protection of human and minority rights irreconcilable with constitutionally enshrined institutional mechanisms of “power-sharing” between the biggest cultural groupings within a state? Both the political and the constitutional conflict boil down to the question of democratic legitimacy of power-sharing mechanisms, if they restrict or even abolish individual, “liberal” human rights, which are essential for the belief of people in the democratic legitimacy of their governmental system. Therefore, every state having ratified the ECHR and its Protocols, has a so called “positive” legal obligation to guarantee these individual rights such as freedom of speech, freedom of association and, in particular, equal voting rights for the citizens of a state.

None of these five judgments, however, have been implemented thus far. The Bosnian-Herzegovinian Constitutional Court (BiHCC) refuses to give these provisions of the ECHR legal effect for the domestic system by way of interpretation. Meanwhile, the BiH Parliament is unable to achieve the necessary two-thirds majority required for constitutional reform due to political divisions along ethnic lines.

Background and facts of the case

The pressing question for BiH now is how to bring its constitution with exclusive ethnic quotas for constituent peoples in conformity with the ECHR. The ECtHR qualified these exclusions as ethnic discrimination in the right to stand as candidate in elections. And why should this hold only for the passive right to vote and not also for the active right to cast a vote in elections? In the case Aziz v. Cyprus (2004), the ECtHR found the Republic of Cyprus in violation of Article 3 Protocol No.1 in conjunction with Article 14 ECHR because of the total exclusion of Turkish Cypriots from the (active) right to vote. In Bakirdzi v. Hungary (2022) the Court found a violation because of a decisive restriction of the voting rights of national minority voters to gain a seat in parliament. The Court explained its decision with the disparity in the voting power for members of national minorities, because they could only vote for their respective national-minority list as a whole or abstain from voting altogether. This limited their opportunity “to enhance their political effectiveness as a group and threatened to reduce … diversity and participation of minorities in political decision-making” so that their active voting rights were “diluted” (para 73).

When Mr. Kovačević submitted an application to the ECtHR in 2022, he claimed that he had been violated and discriminated as a citizen in both his passive right to vote as well as his active right to vote. As a resident of the Federation of BiH, he was forced either to abstain from voting for the HoP and the Presidency or to cast a vote for Bosniac or Croat candidates who were not candidates of his choice. He won the case before a Chamber of the ECtHR in 2023 with an overwhelming majority. The single dissenting opinion, however, criticized that there would be a “structural difference” between the active and the passive right to vote, which had not been taken into account by the majority. Moreover, it denied the personal status of Mr. Kovačević as a “victim” of the contested ethnic quotas and statutory electoral provisions. It also rejected the idea that states, having ratified the ECHR, have a “positive” legal obligation to protect national minorities. I have already criticized this opinion in a previous blog in more detail.

After the referral of the case to the Grand Chamber and a public hearing in November 2024, the judges of the Grand Chamber then did something unexpected: Instead of rejecting this voting rights case on the merits, they declared Mr. Kovačević’s complaint inadmissible. This has something of a retroactive effect, because the case had been decided on the merits in the Chamber’s judgment already. Alongside the statement that the nature of “indirect elections” to the HoP falls “outside the scope of the case”, that the applicant lacked “victim status” with regards to his claims and has “misused” his application, this raises a whole range of uncertainties.

Bi-cameralism no longer under strict judicial scrutiny?

In Pt.1 of the Decision, the judges base their ruling almost with unanimity on the assessment that “the applicant’s complaint…regarding the indirect nature of the elections of the House of Peoples of Bosnia and Herzegovina…fall outside the scope of the case….” What are we to make of this? Does the Grand Chamber decision now mean that the constitutional rules on the electoral system to the HoP can no longer be contested before the ECtHR? As a consequence, this would mean that the judgments in the cases Sejdić and Finci, Zornić v. BiH (2014), and Šlaku v. BiH (2016) are de facto overruled. In them, the Court found a discriminatory violation because of the total exclusion from the right to stand as candidates in the elections to the HoP. However, this would also have consequences for all bi-cameral systems among the member states of the Council of Europe. Does this mean that second chambers of parliament, if not directly elected, no longer need any form of democratic legitimation? This seems highly questionable with regards to the development of the ECtHR case law to establish an “effective political democracy” as basic value underlying the ECHR as the Court had argued in the Zornić case. This would turn the clock back to the 1950s.

No “victim status”

Following the decision that elections to the HoP as legislative body do not fall under the material scope of Article 3 Protocol No. 1 ECHR, it would have been consequential to rule the same for the elections to the Presidency, which is above all an executive body. Instead, the Court states in Pt. 2 (b) that Mr. Kovačević did not have “victim status” for all his complaints. The procedural requirement of “victim status” prescribes that the applicant must have been “directly affected” by the contested legal or constitutional provisions to prevent an “abstract” complaint. However, there remain two open, interlinked problems which put this ruling into question in light of previous case-law.

First, this would de facto overrule the finding in the Sejdić and Finci case in which the Court had ruled that the identical systems of exclusive ethnic quotas in the HoP and the Presidency both amount to ethnic discrimination. Contrary to the reasoning in the dissenting opinion of the Chamber judgment, the Court thereby declared any differentiation with regards to the meaning of “discrimination” between citizens and minorities legally irrelevant (at § 56). This was confirmed by the ECtHR in the case Zornić, who had submitted her application as a “citizen” and won the case. Thus, also Mr. Kovacevic’s claim to be discriminated against did not depend on legal obligations to protect national minorities.

Second, the ECtHR already clarified in Sejdić and Finci that applicants’ rights guaranteed by the ECHR are also violated if “they belong to a class of people…who are required…to modify their conduct…” so that the seemingly “abstract” question of the compatibility of the national Constitution with the Convention is irrelevant in such cases (at § 28). It is obvious that Mr. Kovačević was required to modify his conduct in the context of the elections to the House of Peoples and the Presidency. As he explained in the public hearing, his residency in the canton Sarajevo and the rigid ethnic quota system on behalf of constituent peoples forced him to cast his vote only for a party with Bosniak or Croat candidates. Thus, his choice in the active right to vote was not totally excluded as in the Aziz case, but de facto restricted to purely ethnic criteria in analogy to the finding of the ECtHR in the Bakirdzi case. In the wording of the ECtHR, this restriction was a violation in the “opportunity for voters to choose candidates or party lists which best reflect their political views, and election regulations should not require voters to espouse political positions that they do not support” (§ 63).

Contrary to the dissenting opinion of the Chamber judgment, this means that there is no “structural difference” between the passive and active right to vote. The constitutionally enshrined ethnic quotas for the election of the HoP and the Presidency in combination with the residency requirements for the exercise of electoral rights do have a de facto decisively restraining effect on Mr. Kovačević’s active right to vote, as well. This is, according to the settled case law of the ECtHR on electoral rights, a clear violation of the principles of “freedom” and “equality” with regards to the right to vote in terms of “equal voting power”, to be guaranteed under Article 3 Protocol No. 1 ECHR and in a non-discriminatory manner.

The end for constitutional reform

In the Zornić case, the ECtHR established a normative principle for the conformity of all power-sharing systems – not only the one in BiH – based on the ECHR: It is necessary “to ensure effective political democracy…without discrimination based on ethnic affiliation…”, that is, “…without granting special rights for constituent people to the exclusion of minorities or citizens…” (§ 43).

The Kovačević decision of the Grand Chamber now threatens to overrule all previous ECtHR judgments with regards to power-sharing and to legitimize the de facto strict ethno-national cartel of power of the mono-ethnic parties of the three constituent peoples in BiH. If this fear materializes in the detailed reasoning of the Grand Chamber Decision – hopefully to be published soon –, this will mean the end of all efforts made in the past, to “liberalize” the exclusive ethnic power-sharing system of divide et impera through constitutional reform. In this way, the mono-ethnic parties remain in control of the respective ethnic segment of the electorate and can, for instance, uphold the complete ethnic segregation of the public educational system. Only through an amendment of Articles IV and V of the Dayton constitution could “Others” also be granted a constitutionally guaranteed representation in the HoP and the Presidency, as is the case in Northern Ireland and the region of Trentino/South Tyrol in Italy for their respective legislative and executive bodies. This would neither satisfy the leaders of the mono-ethnic parties who want to keep their monopoly of power against competition with multi-ethnic or civic parties, nor those intellectuals who favour a radical reform by abolishing all ethnic criteria. But what else is the “nature” of democratic compromise?