GRAND CHAMBER

CASE OF KOVAČEVIĆ v. BOSNIA AND HERZEGOVINA

(Application no. 43651/22)

JUDGMENT

Rule 35 of the Rules of Court • Representation of Contracting Parties • Applicant estopped from contesting the authority of the acting Agents of the respondent Government to represent it before the Court • Applicant’s arguments not based on new developments but of a retroactive nature and equally applicable during the Chamber proceedings • Doubts or objections regarding an individual’s status to act as a Government representative before the Court to be raised in limine litis, in so far as the circumstances permit • Principles of legal certainty and stability, procedural economy and the proper administration of justice • No official decisions by the Council of Ministers, or any other competent State bodies, to withdraw the referral request or the authority of the Government’s incumbent acting Agent • Grand Chamber and its panel properly seised by acting Agents with the authority to seek the referral • Respondent State duly represented • Any actual procedural irregularity pertaining to the acting Agents’ status under domestic law remained an internal matter to be resolved within the domestic legal system

Art 35 § 3 (a) • Highly reproachable conduct on the applicant’s part in the Grand Chamber proceedings amounted to an abuse of the right of application • Unsubstantiated accusations and offensive remarks directly targeting the Court’s then President, and indirectly the Grand Chamber panel members, exceeded the bounds of legitimate criticism and involved gratuitous attacks • Statements targeting the Government’s acting Agents and High Representative amounting to gratuitous personal attacks and malicious accusations • Information provided by the applicant concerning his ethnicity on his profile page on the Sarajevo City Council’s official website considered deceptive regarding a matter of potential relevance to the case

Art 34 • Art 14 (+ Art 3 P1) • Art 1 P12 • Lack of victim status for discrimination complaints concerning the inability to vote for candidates of choice due to a combination of ethnic and territorial requirements governing the legislative and presidential elections at State level • Distinction drawn between active and passive aspects of the right to vote • Case distinguished from Sejdić and Finci v. Bosnia and Herzegovina [GC] as impugned rules challenged from the voter’s standpoint in the exercise of the “active” right to vote rather than the “passive” aspect of that right • Establishment of voters’ victim status required a sufficient direct link between them and the alleged harm sustained in their capacity as voters on account of the rules at issue • Complaints directed at effecting a change to the respondent State’s constitutional and electoral structure in a general manner amounting thus to an abstract critique of the “state of the law” of an actio popularis nature

Prepared by the Registry. Does not bind the Court.

STRASBOURG

25 June 2025

This judgment is final but it may be subject to editorial revision

TABLE OF CONTENTS

PROCEDURE

INTRODUCTION

THE FACTS

I. THE BACKGROUND TO THE CASE

II. THE CIRCUMSTANCES OF THE CASE

A. The applicant’s situation

B. Developments following the adoption of the Chamber judgment

1. Submissions regarding media coverage of the Chamber judgment

2. Submissions regarding the applicant’s ethnic affiliation

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. DOMESTIC LAW AND PRACTICE

A. The State Constitution (Annex 4 to the Dayton Agreement)

B. Election Act

C. Description of the relevant domestic law relating to the Entities

1. Federation of Bosnia and Herzegovina

2. Republika Srpska

D. Relevant legal framework and practice governing the Agent of the Council of Ministers of Bosnia and Herzegovina before the Court

1. Domestic law and practice

2. Notifications to the Court regarding the Agent of the Council of Ministers of Bosnia and Herzegovina before the Court during the relevant period

II. INTERNATIONAL LAW AND PRACTICE

A. International law and practice relating to the substantive legal issues before the Court

1. United Nations

2. Council of Europe

(a) Parliamentary Assembly

(b) Committee of Ministers

(c) Commissioner for Human Rights

(d) European Commission for Democracy through Law (Venice Commission)

(i) Material pertaining to Bosnia and Herzegovina

(ii) Other relevant material

(e) Congress of Local and Regional Authorities

(f) European Commission against Racism and Intolerance

(g) Framework Convention for the Protection of National Minorities

3. European Union

B. International law and practice relating to the question of State representation before other international courts

THE LAW

I. PRELIMINARY ISSUES

A. Authority of the acting Agents to represent the respondent Government before the Court

1. Submissions made prior to the referral of the case to the Grand Chamber

2. Submissions made following the referral of the case to the Grand Chamber

(a) The applicant

(b) The Government

3. The Court’s assessment

B. The Court’s competence to entertain the present application

C. Scope of the case before the Grand Chamber

II. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Abuse of the right of individual application

1. The parties’ submissions before the Grand Chamber

(a) The Government

(b) The applicant

(c) The third parties

2. The Court’s assessment

B. The applicant’s victim status and the applicability of the relevant provisions of the Convention and the Protocols thereto

1. The parties’ submissions before the Grand Chamber

(a) The Government

(b) The applicant

(c) The third parties

2. The Court’s assessment

(a) General principles

(i) Victim status

(ii) Applicability of the relevant provisions of the Convention and the Protocols thereto (compatibility ratione materiae)

(b) Application of those principles to the present case

(i) Preliminary remarks regarding the nature and content of the applicant’s discrimination complaints

(ii) Victim status in respect of the complaints regarding elections to the House of Peoples

(iii) Victim status in respect of the complaints regarding elections to the Presidency

(iv) Conclusion

C. The remaining preliminary objection

OPERATIVE PROVISIONS

CONCURRING OPINION OF JUDGE PAVLI

JOINT STATEMENT OF PARTIAL DISSENT OF JUDGES BÅRDSEN, CHANTURIA, YÜKSEL AND SCHEMBRI ORLAND

DISSENTING OPINION OF JUDGE VEHABOVIĆ

In the case of Kovačević v. Bosnia and Herzegovina,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Mattias Guyomar, President,
Arnfinn Bårdsen,
Ivana Jelić,
Lado Chanturia,
Ioannis Ktistakis,
Faris Vehabović,
Stéphanie Mourou-Vikström,
Alena Poláčková,
Gilberto Felici,
Darian Pavli,
Erik Wennerström,
Saadet Yüksel,
Lorraine Schembri Orland,
Anja Seibert-Fohr,
Peeter Roosma,
Davor Derenčinović,

Mykola Gnatovskyy, judges,
and Marialena Tsirli, Registrar,

Having deliberated in private on 20 November 2024 and 25 June 2025,

Delivers the following judgment, which was adopted on the latter date:

PROCEDURE

1. The case originated in an application (no. 43651/22) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a dual national of Bosnia and Herzegovina and Croatia, Mr Slaven Kovačević (“the applicant”), on 30 August 2022.

2. On 6 June 2024 the applicant was granted leave by a decision of the then Vice-President of the Court to present his own case (Rule 71 § 1 and Rule 36 §§ 2 and 3 of the Rules of Court). The Government of Bosnia and Herzegovina (“the Government”) were represented by their acting Agent, Ms Monika Mijić.

3. The applicant complained that he had been discriminated against in the exercise of his (active) right to vote, as he had been deprived of the opportunity to vote for candidates of his own choice by reason of a combination of ethnic and territorial requirements governing the elections to both chambers of the Parliamentary Assembly of Bosnia and Herzegovina and the Presidency of Bosnia and Herzegovina. In his application form of 30 August 2022, the applicant relied on Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1 to the Convention, in respect of his complaints concerning the elections to both chambers of the Parliamentary Assembly, although during the course of the proceedings before the Chamber he also relied on Article 1 of Protocol No. 12 in connection with those complaints. As concerns his complaints relating to the elections to the Presidency, the applicant relied on Article 1 of Protocol No. 12. He also raised complaints under Articles 13 and 17 of the Convention.

4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 27 October 2022 notice of the application was given to the Government.

5. On 29 August 2023 a Chamber of the Fourth Section, composed of Judges Gabriele Kucsko-Stadlmayer, President, Tim Eicke, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Ana Maria Guerra Martins and Anne Louise Bormann, judges, and Andrea Tamietti, Section Registrar, delivered a judgment in the present case, which had been adopted on 20 June 2023 (“the Chamber judgment”). The Chamber held, by six votes to one, that there had been a violation of Article 1 of Protocol No. 12 because of the ethnic and territorial criteria applicable to the composition of the House of Peoples of Bosnia and Herzegovina (the second legislative chamber of the Parliamentary Assembly of Bosnia and Herzegovina, hereinafter referred to as “the House of Peoples” or the “State House of Peoples” when it is necessary to distinguish it from the House of Peoples of the Federation of Bosnia and Herzegovina) and the Presidency of Bosnia and Herzegovina. It also found, by six votes to one, that there was no need to examine either the admissibility or the merits of the complaint concerning the composition of the House of Peoples from the standpoint of Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1. The Chamber further declared inadmissible, unanimously, the remainder of the applicant’s complaints under Article 3 of Protocol No. 1 taken alone and/or in conjunction with Article 14 of the Convention – which concerned, as regards the House of Peoples, the lack of direct elections to that second legislative chamber and, as regards the House of Representatives of Bosnia and Herzegovina (the first legislative chamber of the Parliamentary Assembly of Bosnia and Herzegovina, hereinafter referred to as “the House of Representatives”), the election of some members from compensatory lists and the division of the national territory into constituencies for the purposes of the elections to that first chamber. The applicant’s complaints under Articles 13 and 17 of the Convention were similarly declared inadmissible, unanimously. The dissenting opinion of Judge Kucsko-Stadlmayer was annexed to the judgment.

6. By a letter dated 19 September 2023, which was received at the Court on 20 September 2023, the acting Agents of the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention.

7. On 11 December 2023 the panel of the Grand Chamber, constituted in accordance with Rule 24 § 5, convened. It decided, on the basis of the material before it, to adjourn the examination of the referral request in the present case and to ask the Government to indicate whether they confirmed the request of 19 September 2023 for the referral of the case to the Grand Chamber. After confirmation had been provided by the acting Agents of the Government, on 14 December 2023 the panel of the Grand Chamber granted the referral request. Further information regarding the process before the panel of the Grand Chamber is provided in paragraphs 80-91 below.

8. The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

9. On 5 January 2024 the applicant requested the recusal of the President of the Grand Chamber at that time, namely Judge Síofra O’Leary, from the proceedings before the Grand Chamber by virtue of Rule 28 §§ 2 (e) and 4. The applicant relied on a number of grounds in support of his request. He firstly reproached the President, who had also presided over the panel of the Grand Chamber, for allowing the referral request to proceed despite clear evidence which, in his opinion, demonstrated that it had been lodged by unauthorised persons (see paragraphs 81-91 below for further information on the applicant’s arguments in this regard). He claimed in this regard that the President had failed to transmit to the panel members the evidence submitted to the Court as proof of the acting Agents’ lack of authority, and had also used her position to pressure or persuade the panel members to grant the referral request, insinuating that she might have offered benefits or privileges to those judges in return. In the applicant’s view, the conduct of the procedure before the panel had clearly indicated the President’s “intention to do everything in her power to derogate, invalidate and ultimately abolish” the Chamber judgment in the present case, which he suggested might have resulted from “some other political and personal interests that are not of a legal nature nor are they in accordance with the Rules of Court and the Convention”. He also reproached the President for allegedly holding frequent official meetings with the Croatian authorities, who he claimed had a political stake in the Court’s ruling, and for showing reluctance to meet with officials from Bosnia and Herzegovina. Having deliberated in accordance with the procedure set out under Rule 28 § 3, on 30 January 2024 the Grand Chamber decided to reject the applicant’s recusal request.

10. On 8 February 2024 the acting Agent of the Government requested the recusal of the judge elected in respect of Bosnia and Herzegovina, Judge Faris Vehabović, from the proceedings in the present case under Rule 28 §§ 2 (d) and (e) and 4 by reason of his alleged lack of independence and impartiality. Following the procedure set out under Rule 28 § 3, on 19 March 2024 the Grand Chamber decided to reject the recusal request submitted by the acting Government Agent.

11. On 16 September 2024 the then President of the Grand Chamber granted leave to the High Representative for Bosnia and Herzegovina (“the High Representative”) to intervene in the written procedure and to take part in the hearing before the Grand Chamber (Article 36 § 2 of the Convention, Rule 71 § 1 and Rule 44 § 3). As the applicant also holds possessed Croatian nationality, on 23 October 2024 the Croatian Government expressed their intention to exercise their right to take part in the written and oral proceedings before the Grand Chamber as a third party (Article 36 § 1 of the Convention and Rule 44 § 1).

12. The applicant and the Government each filed a memorial on 7 June 2024 (Rule 59 § 1). In addition, third‑party comments were received from the High Representative and the Croatian Government, on 7 October and 8 November 2024 respectively.

13. A hearing took place in public in the Human Rights Building, Strasbourg, on 20 November 2024.

There appeared before the Court:

(a) for the Government

Ms M. Mijić, Acting Government Agent,
Mr D. Bunoza, Minister of Justice of Bosnia and Herzegovina,
Mr V. Škobić, Minister of Justice of the Federation of
Bosnia and Herzegovina,
Mr M. Bukejlović, Minister of Justice of Republika Srpska,

Ms L. Mijović, Adviser;

(b) for the applicant
Mr S. Kovačević, Applicant,
Mr J. Marko,
Ms A. Zornić, Counsel;

(c) for the Croatian Government
Ms S. Stažnik, Agent,
Ms A. Patiniotis,
Mr I. Pepic,
Mr M. Očuršćak, Advisers;

(d) for the High Representative for Bosnia and Herzegovina
Mr T. Otty, KC, Counsel,
Mr E. d’Aoust,
Mr J. Leon Diaz, Advisers.

The Court heard addresses by the applicant, Mr Marko, Ms Zornić, Ms Mijić, Ms Stažnik and Mr Otty KC, and the answers by the applicant, Mr Marko, Ms Mijić, Ms Mijović, Ms Stažnik and Mr Otty KC to questions put by the Court.

14. After the hearing, the President of the Grand Chamber, Marko Bošnjak, withdrew from the case following the end of his term of office at the Court. As President of the Grand Chamber he was replaced by Mattias Guyomar, and as a member of the composition he was replaced by the first substitute judge, Mykola Gnatovskyy (Rule 24 § 3).

INTRODUCTION

15. The present case concerns the alleged discrimination against the applicant, by reason of the ethnic and territorial requirements governing the elections to the House of Peoples and the Presidency of Bosnia and Herzegovina, which purportedly prevented him from voting for the candidates of his choice in legislative and presidential elections at the State level. The applicant initially relied on Article 14 of the Convention, taken in conjunction with Article 3 of Protocol No. 1 to the Convention, in respect of his complaints relating to the House of Peoples, but at the subsequent stages of the proceedings before the Court he also relied on Article 1 of Protocol No. 12 in relation to those complaints (see paragraph 3 above). As regards his complaints concerning the Presidency, the applicant relied on Article 1 of Protocol No. 12.

16. The Court notes that the constitutional and electoral rules governing the elections to the House of Peoples and the Presidency of Bosnia and Herzegovina (see paragraphs 36 and 37 below) were the subject of its examination in Sejdić and Finci v. Bosnia and Herzegovina ([GC], nos. 27996/06 and 34836/06, §§ 38-56, ECHR 2009). That case concerned the ineligibility of the applicants, who were of Roma and Jewish origin respectively, to stand for election to those State bodies on the ground that they were not affiliated with a “constituent people” (see paragraph 20 below for the definition of “constituent peoples”). The Court found that the applicants’ ineligibility to stand for election to the House of Peoples and the Presidency lacked an objective and reasonable justification and had therefore breached Article 14 of the Convention taken in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12, respectively (see Sejdić and Finci, cited above, §§ 50 and 56). The Court’s findings in that judgment were subsequently reiterated in a series of cases raising similar issues as regards ineligibility to stand for election to the State bodies in question, by reason of the persistent failure of the authorities of the respondent State to introduce measures to remedy the shortcomings identified (see Zornić v. Bosnia and Herzegovina, no. 3681/06, §§ 26-43, 15 July 2014; Šlaku v. Bosnia and Herzegovina [Committee], no. 56666/12, §§ 24-34, 26 May 2016; Pilav v. Bosnia and Herzegovina, no. 41939/07, §§ 38-50, 9 June 2016; and Pudarić v. Bosnia and Herzegovina [Committee], no. 55799/18, §§ 25-29, 8 December 2020, hereinafter referred to as “the Sejdić and Finci group of cases”). These cases are still under the supervision of the Committee of Ministers pending execution of the judgments concerned (see paragraphs 59-61 below).

17. The applicant’s allegations of discrimination in the present case are based on the same constitutional and electoral rules as those examined by the Court in the Sejdić and Finci group of cases referred to above. However, the applicant’s case differs from those earlier cases in that it challenges the allegedly discriminatory effect of the impugned rules not from the standpoint of the right to stand for election – that is, the so-called “passive” aspect of the right to vote safeguarded under Article 3 of Protocol No. 1 – but from the standpoint of a voter in the exercise of the so-called “active” right to vote.

THE FACTS

THE BACKGROUND TO THE CASE

18. The 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Agreement”), which brought an end to the conflict that raged in Bosnia and Herzegovina for nearly four years, was the culmination of some forty-four months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It was initialled at the Wright-Patterson Air Force Base near Dayton (United States of America) on 21 November 1995 was signed in Paris on 14 December 1995, and entered into force on the latter date. It contains eleven Articles which mainly set out the obligations for the three Contracting States (the then Republic of Bosnia and Herzegovina, the Republic of Croatia and the then Federal Republic of Yugoslavia) to “welcome and endorse” and to “fully respect and promote fulfilment of the commitments” made in the annexes thereto (see Berić and Others v. Bosnia and Herzegovina (dec.), no. 36357/04 and 25 others, § 10, 16 October 2007). The substance of the commitments is contained in twelve annexes. The Constitution of Bosnia and Herzegovina (hereinafter referred to as “the Constitution” or “the State Constitution” when it is necessary to distinguish it from the Entity Constitutions) is Annex 4 to the Dayton Agreement (see paragraph 36 below).

19. The Constitution thus put in place by the Dayton Agreement confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure. According to the relevant provisions of the Constitution, Bosnia and Herzegovina consists of two Entities – the Federation of Bosnia and Herzegovina (also referred to as “the Federation”) and the Republika Srpska (see Article I § 3 of the Constitution) – and the Brčko District in the joint ownership (condominium) of the two Entities.

20. In the Preamble to the Constitution, Bosniacs, Croats and Serbs are described as “constituent peoples” (see paragraph 36 below). A distinction is made between these “constituent peoples” and “Others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood, or other reasons). According to the information provided by the Government, the distribution of the population among the “constituent peoples” and “Others” was recorded as follows in the censuses held in 1991 and 2013:

Bosnia and Herzegovina

Federation of
Bosnia and Herzegovina

Republika Srpska

1991

2013

1991

2013

1991

2013

Total (million)

4.38

3.53

2.7

2.22

1.6

1.23

Bosniacs (%)

43.47

50.01

52.3

70.4

28

14

Croats (%)

17.38

15.4

21.9

22.4

9.2

2.4

Serbs (%)

31.21

30.8

17.6

2.5

55.5

81.5

Other (%)

7.94

3.7

8.2

4.6

7.3

2.1

21. The protection of the interests of the “constituent peoples” is ensured at the State level via a number of constitutional provisions incorporating power-sharing arrangements that were designed to end the conflict and that make it impossible to adopt decisions against the will of the representatives of any “constituent people” (see Sejdić and Finci, cited above, §§ 7 and 45). In this connection, the Constitution provides for a bicameral parliamentary system (with a House of Peoples – the second chamber of the Parliamentary Assembly of Bosnia and Herzegovina – composed of five Bosniacs and five Croats from the Federation and five Serbs from the Republika Srpska), a collective Head of State – the Presidency – comprising three members (a Bosniac and a Croat elected from the Federation and a Serb elected from the Republika Srpska), as well as a vital interest veto and an Entity veto in both the House of Peoples and the Presidency (see Articles IV and V of the Constitution, quoted in paragraph 36 below; for further information on the background to these provisions, see Sejdić and Finci, cited above, §§ 13 and 14).

22. In accordance with the relevant constitutional provisions, while no ethnic requirements apply in elections to the House of Representatives, only persons declaring affiliation with a “constituent people” are entitled to stand for election to the House of Peoples and the Presidency. The relevant provisions of the domestic law relating to the procedure for elections to the House of Peoples and the Presidency are set out in paragraphs 36 and 37 below (see, in particular, Article IV § 1 and Article V § 1 of the Constitution and sections 9.12 and 9.12a and section 8.1 of the Election Act respectively).

23. The latest legislative and presidential elections at the State level took place on 2 October 2022.

THE CIRCUMSTANCES OF THE CASE

The applicant’s situation

24. The applicant, who was born in 1972, is a resident of the Sarajevo Canton, which is situated in the Federation. He is a political scientist and, according to the information in the case file, a political adviser to a member of the Presidency of Bosnia and Herzegovina, namely Mr Željko Komšić[1]. The applicant did not provide any information in the proceedings before the Court as regards his ethnic affiliation, which he considers to be “irrelevant” for the purposes of his case (see paragraphs 31-35 below for the parties’ submissions as regards the applicant’s ethnic affiliation).

25. The applicant lodged his application with the Court on 30 August 2022, that is, prior to the latest State-level elections held on 2 October 2022. He contended that by reason of the combination of the ethnic and territorial requirements pertaining to the composition of the House of Peoples and the Presidency, he was prevented from voting for, or otherwise influencing the selection of, the candidates of his choice for those bodies, which he claimed amounted to discrimination. The applicant did not raise those complaints before any domestic courts or authorities prior to lodging his application with the Court. Nor did he indicate whether he had voted in the elections of October 2022.

26. According to information obtained from the official website of the Parliamentary Assembly of Bosnia and Herzegovina, the fifteen seats at the House of Peoples are distributed as follows after the general elections of October 2022[2]:

Federation of Bosnia and Herzegovina

Republika Srpska

Bosniacs

Croats

Serbs

People and Justice (NiP):
1

Croatian Democratic Union of Bosnia and Herzegovina (HDZ BiH):

3

Alliance of Independent Social Democrats (SNSD):

3

Party of Democratic Action (SDA):

2

Croatian Democratic Union 1990 (HDZ 1990):

1

Serb Democratic Party (SDS):

1

Democratic Front (DF):
1

Independent delegate:
1

Party of Democratic Progress (PDP):

1

Party for Bosnia and Herzegovina (SBiH):

1

Developments following the adoption of the Chamber judgment

Submissions regarding media coverage of the Chamber judgment

27. Following its deliberations in private, on 20 June 2023 a Chamber of the Fourth Section adopted its judgment in the present case (see paragraph 5 above). On 28 August 2023 – that is, one day prior to the delivery of the Chamber judgment (ibid.) – the Government notified the Court of an article that had been published by a local news outlet the previous evening, which allegedly reported on the contents of the Chamber’s forthcoming judgment. The Government further claimed that the applicant had also personally commented on the outcome of the judgment via audiovisual and written media on the same evening and had allegedly stated that “he was aware of the fact that the Court had accepted his application and had found a violation of his rights”.

28. By a letter dated 13 September 2023, the Court asked the applicant to provide an explanation as to whether, and if so how, he had become aware of the contents of the Chamber’s judgment prior to its delivery on 29 August 2023.

29. In his response sent on 19 September 2023, the applicant denied having had any knowledge of the contents of the Chamber’s judgment prior to its publication. He explained that in his media appearance of 27 August 2023 mentioned by the Government, he had only shared his awareness that the Court had accepted for consideration his complaints of a violation of his rights, based on the public document “Forthcoming judgments and decisions 29-31 August 2023” published on 23 August 2023 on the Court’s website. He had otherwise made it clear that he was not aware of the contents of the judgment at all. The remarks of the host of the programme regarding the substance of the judgment had been mere speculation, as had become apparent following the publication of the judgment on 29 August 2023.

30. The applicant also stated in the same letter that there were claims circulating in the local media suggesting that certain political actors in Bosnia and Herzegovina, in cooperation with the acting Agent of the Government (Ms Harisa Bačvić) and certain actors from Croatia, had lobbied the Court to secure a dissenting opinion in the Chamber judgment. The applicant indicated that those claims could neither be confirmed or denied, but that they “brought him a sense of fear and unease, especially if political lobbying can exert any influence on the esteemed Court”.

Submissions regarding the applicant’s ethnic affiliation

31. On 7 June 2024 the Government submitted information, as part of their memorial before the Grand Chamber, suggesting that the applicant had declared his affiliation with the Croat people during his service as a city councillor on the Sarajevo City Council in the period between 2012 and 2016. This information was based on a printout (dated 16 May 2024) of the applicant’s profile that was apparently published on the Sarajevo City Council’s official website[3], on which the “ethnicity” field was filled in as “Croat”.

32. By a letter dated 18 June 2024, the applicant contested the accuracy of the information furnished by the acting Agents of the Government. In this connection, he submitted that he was obliged, for the sake of truth, to provide the Court with a printout of the web page in question obtained on 18 June 2024, where the relevant field was blank. Appended to his letter was a certificate from the head of the service for City Council Affairs, verifying the authenticity of the data on the relevant web page as submitted by the applicant, which had been issued on 18 June 2024 at his request. The applicant further contended that neither in his application form nor in his subsequent submissions had he “used [his] own ethnicity”, as he believed that such information could not and should not be used in “matters concerning [the] active voting right”.

33. On 31 July 2024 the Government responded to the applicant’s letter. They stated that in the interests of the proper conduct of the proceedings and with a view to preventing deception of the Court, they had asked the Sarajevo City Council (i) to confirm whether in the period from 2012 until 16 May 2024 the “ethnicity” field on the relevant web page had indeed been filled in as “Croat”, and (ii) to indicate when and at whose request the indication of the applicant’s ethnicity as “Croat” had been removed from the official website of the City Council. According to the information provided by the Chairperson of the City Council on 12 July 2024, which was appended to the Government’s letter, the relevant data pertaining to the applicant’s ethnicity had been removed from the website on 12 June 2024 following a verbal request from the applicant.

34. In his response submitted on 10 September 2024, the applicant maintained that the assertions of the acting Agents of the Government had been “incorrect, illegal and manipulative”. He asserted that while he had served on the Sarajevo City Council in 2015-2016, he had never given his consent to the City Council to obtain, process, use, make public or transfer his personal data. It was therefore clear to him that the acting Agents of the Government had obtained that information illegally, regardless of whether the information was correct or incorrect. The applicant also reiterated that he considered the information regarding his ethnicity to be irrelevant to his case.

35. By a letter dated 14 October 2024, the Government provided the Court with, inter alia, a letter addressed by the Embassy of the Republic of Croatia in Bosnia and Herzegovina to the Ministry of Justice of Bosnia and Herzegovina on 10 October 2024. The letter, which bore the signature of the Ambassador, certified that the applicant possessed Croatian citizenship, and that at the time of acquiring that citizenship, “he had made a declaration of affiliation with the Croat people”.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

DOMESTIC LAW AND PRACTICE

The State Constitution (Annex 4 to the Dayton Agreement)

36. The provisions of the State Constitution relevant to the present case provide as follows:

Preamble

“...

Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows:

...”

Article I

Bosnia and Herzegovina

“1. Continuation

The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be ‘Bosnia and Herzegovina,’ shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. ...

...

3. Composition

Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska (hereinafter ‘the Entities’).”

Article II

Human Rights and Fundamental Freedoms

“...

2. International Standards

The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.

...

4. Non-Discrimination

The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex 1 to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

...

6. Implementation

Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above.”

Article IV

Parliamentary Assembly

“The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives.

1. House of Peoples

The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).

(a) The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation[4]. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska[5].

...

2. House of Representatives

...

3. Procedures

(a) Each chamber shall be convened in Sarajevo not more than 30 days after its selection or election.

(b) Each chamber shall by majority vote adopt its internal rules and select from its members one Serb, one Bosniac, and one Croat to serve as its Chair and Deputy Chairs, with the position of Chair rotating among the three persons selected.

(c) All legislation shall require the approval of both chambers.

(d) All decisions in both chambers shall be by majority of those present and voting. The delegates and members shall make their best efforts to see that the majority includes at least one-third of the votes of delegates or members from the territory of each Entity. If a majority vote does not include one-third of the votes of delegates or members from the territory of each Entity, the chair and deputy chairs shall meet as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the delegates or members elected from either Entity.

(e) A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph 1(a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting.

(f) When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.

...

4. Powers

The Parliamentary Assembly shall have responsibility for:

(a) Enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution.

(b) Deciding upon the sources and amounts of revenues for the operations of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina.

(c) Approving a budget for the institutions of Bosnia and Herzegovina.

(d) Deciding whether to consent to the ratification of treaties.

(e) Such other matters as are necessary to carry out its duties or as are assigned to it by mutual agreement of the Entities.”

Article V

Presidency

“The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.

1. Election and Term

(a) Members of the Presidency shall be directly elected in each Entity (with each voter voting to fill one seat on the Presidency) in accordance with an election law adopted by the Parliamentary Assembly ... Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly.

...

2. Procedures

...

(c) The Presidency shall endeavour to adopt all Presidency Decisions (i.e., those concerning matters arising under Article V(3)(a)-(e)) by consensus. Such decisions may, subject to paragraph (d) below, nevertheless be adopted by two Members when all efforts to reach consensus have failed.

(d) A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption. Such a Decision shall be referred immediately to the National Assembly of the Republika Srpska, if the declaration was made by the Member from that territory; to the Bosniac Delegates of the House of Peoples of the Federation, if the declaration was made by the Bosniac Member; or to the Croat Delegates of that body, if the declaration was made by the Croat Member. If the declaration is confirmed by a two-thirds vote of those persons within ten days of the referral, the challenged Presidency Decision shall not take effect.

3. Powers

The Presidency shall have responsibility for:

(a) Conducting the foreign policy of Bosnia and Herzegovina.

(b) Appointing ambassadors and other international representatives of Bosnia and Herzegovina, no more than two-thirds of whom may be selected from the territory of the Federation.

(c) Representing Bosnia and Herzegovina in international and European organizations and institutions and seeking membership in such organizations and institutions of which Bosnia and Herzegovina is not a member.

(d) Negotiating, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties of Bosnia and Herzegovina.

(e) Executing decisions of the Parliamentary Assembly.

(f) Proposing, upon the recommendation of the Council of Ministers, an annual budget to the Parliamentary Assembly.

(g) Reporting as requested, but not less than annually, to the Parliamentary Assembly on expenditures by the Presidency.

(h) Coordinating as necessary with international and non-governmental organisations in Bosnia and Herzegovina.

(i) Performing such other functions as may be necessary to carry out its duties, as may be assigned to it by the Parliamentary Assembly, or as may be agreed by the Entities.

4. Council of Ministers

The Presidency shall nominate the Chair of the Council of Ministers, who shall take office upon the approval of the House of Representatives. The Chair shall nominate a Foreign Minister, a Minister for Foreign Trade, and other Ministers as may be appropriate, who shall take office upon the approval of the House of Representatives.

(a) Together the Chair and the Ministers shall constitute the Council of Ministers, with responsibility for carrying out the policies and decisions of Bosnia and Herzegovina in the fields referred to in Article III §§ 1, 4, and 5 and reporting to the Parliamentary Assembly (including, at least annually, on expenditures by Bosnia and Herzegovina).

...”

Article VI

Constitutional Court

“1. Composition

The Constitutional Court of Bosnia and Herzegovina shall have nine members[6].

(a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.

...

2. Procedures

(a) A majority of all members of the Court shall constitute a quorum.

(b) The Court shall adopt its own rules of court by a majority of all members. It shall hold public proceedings and shall issue reasons for its decisions, which shall be published.

3. Jurisdiction

The Constitutional Court shall uphold this Constitution.

(a) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, ...

Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.

(b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.

(c) The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.

4. Decisions

Decisions of the Constitutional Court shall be final and binding.”

Election Act

37. The Election Act 2001 (Izborni zakon, Official Gazette of Bosnia and Herzegovina nos. 23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05, 65/05, 77/05, 11/06, 24/06, 32/07, 33/08, 37/08, 32/10, 18/13, 7/14, 31/16, 41/20, 38/22, 51/22, 67/22 and 24/24) entered into force on 27 September 2001. The relevant provisions of this Act – both general provisions and provisions concerning the conduct of elections at the State level – read as follows (see paragraphs 38-42 below for a description of the relevant legal framework at the level of the Entities):

Chapter 1

General Provisions

Section 1.1a

“Certain expressions used in this Act shall have the following meaning:

...

(9) ’Permanent residence’ shall mean a municipality, city or district in which a citizen has settled with the intention of living there permanently.

...”

Section 1.4

“(1) Each citizen of Bosnia and Herzegovina who has attained eighteen years of age shall have the right to vote and to be elected pursuant to this Act.

...”

Section 1.5

“(1) All citizens of Bosnia and Herzegovina who have the right to vote pursuant to this Act shall have the right to vote in person in the municipality of their permanent residence.

...”

Chapter 3

Voters’ Register

Section 3.9

“(1) A citizen of Bosnia and Herzegovina who has the right to vote shall be recorded in the Central Voters’ Register for the basic constituency where he or she is registered as a permanent resident in Bosnia and Herzegovina, unless otherwise specified by this Act.

...”

Chapter 6
Protection of Electoral Rights

Section 6.1

“Protection of electoral rights shall be secured by the election commissions and the Appellate Division of the Court of Bosnia and Herzegovina.”

Section 6.2

“(1) Any voter and any political entity whose right established by this Act is violated may file a complaint with the Election Commission not later than within seventy-two hours after the violation occurred, unless otherwise specified by this Act.

(2) The election commissions shall, upon receiving information concerning such violations, within the scope of their competence initiate a procedure by virtue of their authority against a political entity and persons employed or otherwise hired in the election administration on account of violations of the provisions of this Act.

...”

Section 6.6

“(1) The Central Election Commission of Bosnia and Herzegovina shall have first‑instance competence to decide on complaints submitted in relation to violations of the rules on election procedure, electoral rights ....

(2) Decisions of election commissions may be appealed against to the Central Election Commission of Bosnia and Herzegovina, within seventy-two hours following the receipt of the first-instance decision.

...”

Section 6.9

“(1) The Appellate Division of the Court of Bosnia and Herzegovina shall be competent to hear appeals against decisions of the Central Election Commission of Bosnia and Herzegovina. ...”

Chapter 8

Presidency of Bosnia and Herzegovina

Section 8.1

“(1) The members of the Presidency of Bosnia and Herzegovina who are directly elected from the territory of the Federation of Bosnia and Herzegovina – one Bosniac and one Croat – shall be elected by voters registered to vote in the Federation of Bosnia and Herzegovina. A voter registered to vote in the Federation of Bosnia and Herzegovina may vote for either the Bosniac or the Croat member of the Presidency, but not for both. The Bosniac and the Croat candidate who receive the highest number of votes among candidates from the same ‘constituent people’ shall be elected.

(2) The member of the Presidency of Bosnia and Herzegovina who is directly elected from the territory of the Republika Srpska – a Serb – shall be elected by voters registered to vote in the Republika Srpska. The candidate who receives the highest number of votes shall be elected.

...”

Chapter 9

...

House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina

Section 9.12

“The House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall consist of fifteen delegates, of whom two-thirds shall be from the Federation of Bosnia and Herzegovina (five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).”

Section 9.12a

“(1) Croat and Bosniac delegates from the Federation of Bosnia and Herzegovina to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall be elected by the Croat and Bosniac caucus, as appropriate, in the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina.

(2) Croat and Bosniac delegates in the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina shall elect delegates from their respective ‘constituent people’.

(3) Serb delegates and delegates of the ‘Others’ in the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina shall not participate in the process of electing Bosniac and Croat delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina from the Federation of Bosnia and Herzegovina.

(4) Delegates from the Republika Srpska (five Serbs) to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall be elected by the National Assembly of the Republika Srpska.

(5) Bosniac and Croat delegates and delegates of the ‘Others’ in the National Assembly of the Republika Srpska shall participate in the process of electing delegates from the Republika Srpska to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina.”

Section 18.2

“A citizen of Bosnia and Herzegovina who is registered to vote for the Brčko District shall have the right to vote:

1. for the members of the Presidency of Bosnia and Herzegovina and the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina by casting the appropriate ballot in the Entity of which the voter has citizenship[7];

...”

Description of the relevant domestic law relating to the Entities

38. Below is a description of the relevant legal framework governing the election process in each of the two Entities with regard to the election of the delegates to the State House of Peoples, as provided in Chapters 10 and 11 of the Election Act.

Federation of Bosnia and Herzegovina

39. The Federation of Bosnia and Herzegovina consists of ten federal units (also known as “cantons”). Each canton has its own assembly (“cantonal assembly”), with the number of delegates ranging from twenty to thirty-five, depending on the number of registered voters listed in the Central Voters’ Register of the respective canton. These delegates are elected via direct elections, conducted by secret ballot across the entire territory of the canton, on the basis of votes cast by citizens who have the right to vote under the Election Act in the municipality of their permanent residence (see sections 1.4 and 1.5 of the Election Act noted in paragraph 37 above). On the ballot for the cantonal assembly election there are various party and coalition lists, as well as independent candidates. The ethnic declaration of the candidate is not stated on the ballot. Mandates are allocated through a system of proportional representation.

40. Upon the constitution of the cantonal assemblies following direct elections, the representatives from the three “constituent people” groups and the group of “Others” in each cantonal assembly elect, by secret ballot, delegates from their respective groups to sit in the House of Peoples of the Federation of Bosnia and Herzegovina (also referred to as the “Federation House of Peoples”). The Federation House of Peoples thus constituted comprises eighty indirectly elected delegates: twenty-three delegates from each of the three “constituent peoples”, plus eleven from among the group of “Others”.

Republika Srpska

41. The National Assembly of the Republika Srpska consists of eighty‑three members elected directly by voters registered in the Central Voters’ Register to vote in the Republika Srpska. A minimum of four members of each “constituent people” must be represented in the National Assembly of Republika Srpska.

42. A total of sixty-three members are elected from nine multi-member constituencies determined by the Election Act of the Republika Srpska, through a system of proportional representation. The remaining twenty mandates are compensatory mandates, allocated from the territory of the Republika Srpska as a whole.

Relevant legal framework and practice governing the Agent of the Council of Ministers of Bosnia and Herzegovina before the Court

Domestic law and practice

43. The relevant provisions of the Council of Ministers of Bosnia and Herzegovina Act 2003 (Zakon o vijeću ministara Bosne i Hercegovine, Official Gazette of Bosnia and Herzegovina no. 30/03, with amendments – hereinafter “the Council of Ministers Act”) provide as follows:

Section 17

“In exercising its rights and duties, the Council of Ministers shall adopt decisions, conclusions and resolutions, drafts and proposals for laws, analyses, information materials, strategic documents, programmes, agreements, protocols and other acts (hereinafter ‘acts’).”

Section 18

“1. The Council of Ministers shall adopt acts within its competence by a majority vote of the members who are present and shall vote on all questions and topics on which the Parliamentary Assembly of Bosnia and Herzegovina is to take a final decision in further procedures.

2. The Council of Ministers, as a rule, shall decide, by consensus of the members who are present and voting, on other issues, particularly on regulations, appointments and assignments [which fall] within the scope of the Council of Ministers, as well as on the Rules of Procedure and their interpretation.

3. In the event that a consensus is not reached, the Chair of the Council of Ministers shall convene the member or members of the Council of Ministers who oppose [the proposed decision] with a view to reaching a solution. If consensus is not reached within seven days in this manner, the Council of Ministers shall take the decision in accordance with subsection 1 of this section, provided that the majority includes the vote of at least one member from each of the constituent peoples.”

Section 22

“1. With a view of ensuring the complete, efficient, high-quality and harmonised performance of its affairs, the Council of Ministers shall establish permanent or temporary offices, directorates, services, committees and other bodies ...”

44. At its thirtieth session held on 6 November 2003, the Council of Ministers of Bosnia and Herzegovina adopted a decision establishing the “Representative/Agent of the Council of Ministers of Bosnia and Herzegovina before the European Court of Human Rights [hereinafter ‘Agent’] and the Office [of the Agent]” (hereinafter “the Decision on the Agent”) (Official Gazette of Bosnia and Herzegovina no. 30/03 dated 24 December 2003, amended on 5 August 2005, 26 February 2019 and 20 May 2021). The decision was adopted pursuant to sections 17 and 22(1) of the Council of Ministers Act quoted in the previous paragraph.

45. Article 2 of the Decision on the Agent states that the Agent represents the Council of Ministers of Bosnia and Herzegovina before the Court, and that communication between Bosnia and Herzegovina and the Court should take place through the Agent.

46. Article 3 of the Decision on the Agent (as amended on 26 February 2019) provides that the Office of the Agent should have three Agents. Article 4 states that the procedure for the selection of the Agents should be carried out in accordance with the Law on Civil Service in the Institutions of Bosnia and Herzegovina, and that the appointments should be made by the Council of Ministers of Bosnia and Herzegovina for a period of five years, with the possibility of reappointment limited to one time.

47. Article 5 of the Decision on the Agent (as amended on 5 August 2005) further provides that the Agent has the duty and the responsibility, based on the established facts and in line with the regulations of Bosnia and Herzegovina, to submit written observations to the Court, to participate in hearings before the Court, to request that a case be heard before the Grand Chamber and to carry out all other actions undertaken as a party to the proceedings before the Court.

48. Lastly, Article 13 states that the Office of the Agent is to operate within the Ministry of Human Rights and Refugees as an administrative organisation. In this connection, the competence of the Ministry for Human Rights and Refugees is set out in the Act on Ministries and other Bodies of Administration of Bosnia and Herzegovina, passed by the Parliamentary Assembly of Bosnia and Herzegovina in 2003 (Zakon o ministarstvima i drugim organima uprave Bosne i Hercegovine, Official Gazette of Bosnia and Herzegovina no. 5/03, with further amendments). The amendment to this Act, passed by the Parliamentary Assembly on 14 and 16 July 2004 (Official Gazette of Bosnia and Herzegovina no. 42/04), provides that the Ministry of Human Rights and Refugees is responsible for the establishment and operation of the Agent before the European Court of Human Rights and the Office of the Agent.

49. The appointment of all acting officials in the administrative bodies of Bosnia and Herzegovina – including that of an acting Agent of the Council of Ministers of Bosnia and Herzegovina before the Court, upon the expiry of the mandate of the Agent(s) selected pursuant to Article 4 of the Council of Ministers’ decision mentioned in paragraph 44 above – is carried out in accordance with section 55a of the Administration of Bosnia and Herzegovina Act 2002 (Zakona o upravi, Official Gazette of Bosnia and Herzegovina nos. 32/02, 102/09 and 72/17), the relevant provisions of which read as follows:

“2. The body responsible for appointing the head of an independent administrative organisation, and administrative organisation within a ministry, and the heads of other institutions of Bosnia and Herzegovina established by a special law or entrusted with the performance of management duties by a special law in the event of the termination of the mandate of the appointed heads, for a reason other than the expiry of the period of appointment, shall appoint an acting head in order to ensure the smooth functioning of the institution only if the deputy head is prevented from performing his or her duties.

3. The incumbent may be appointed for a period that cannot exceed three months. Exceptionally, and in order to prevent adverse consequences for the work and functioning of the institution, the body responsible ... may issue a decision on the appointment of an acting head for another period of three months in particularly justified cases, such as is the case when the procedure for appointing the head and deputy head has not been completed ...”

50. In proceedings brought by the incumbent acting Agent of the Government before the Court, namely Ms Monika Mijić, against the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, the Appeals Chamber of the Court of Bosnia and Herzegovina examined the application of section 55a of the Administration of Bosnia and Herzegovina Act in the context of the repeated extensions of the mandate of the acting Agent, pending the completion of the procedure for the appointment of the (permanent) Agent.

51. It appears from the Appeals Chamber’s decision that Ms Monika Mijić was appointed acting Agent by a decision of the Council of Ministers dated 26 February 2019, and her mandate was extended three times (on each occasion for a three-month period) as the procedure for the appointment of the (permanent) Agent had still not been completed. Following the expiry of the final extension period on 26 February 2020, the Ministry of Human Rights and Refugees proposed that the Council of Ministers appoint new acting Agents. When that proposal was not taken into consideration by the Council of Ministers, the Ministry of Human Rights and Refugees “deregistered” the acting Agent for tax and insurance purposes, on the basis of the lack of legal grounds for her to continue her mandate, and thereby effectively dismissed her from office. Ms Monika Mijić challenged the Ministry’s decision before the Civil Service Appeals Board of the Council of Ministers and the Court of Bosnia and Herzegovina in turn, both of which ordered the restoration of her legal rights on the grounds that the Council of Ministers was the only authority with the power to appoint and dismiss Agents. The Ministry requested the reversal of those decisions, but its request was dismissed by the Appeals Chamber of the Court of Bosnia and Herzegovina in a decision dated 23 March 2022, by reason of the absence of any evidence that the Council of Ministers had relieved Ms Monika Mijić of her duties as acting Agent even after the expiry of her mandate. The Appeals Chamber held as follows, in so far as relevant (emphasis added):

“Considering the fact that on 17 October 2019 the Ministry of Human Rights and Refugees had announced vacancies for the post of head of the Representative Office (agent of the Council of Ministers of Bosnia and Herzegovina before the European Court of Human Rights) ..., and the fact that the procedure referred to has not been completed until today, the acting head’s obligation to perform her regular duties and tasks and to exercise the powers of the acting head of the Representative Office will not cease in the situation at issue, in order to enable the above-mentioned institution to continue its functioning up until the completion of the legally prescribed procedure for the appointment of the head of the institution.

Section 55a (3), (4) and (5) of the Administration Act ... provide that an acting Agent is to be appointed for a period that can last no longer than three months, and that exceptionally, in order to prevent any detrimental consequences for the operations and functioning of the institution, the authority [in charge of] appointing an acting head may ..., in particularly justified situations, issue a decision extending the appointment of the acting Agent for a further period of three months. Since in the concrete case, the vacancy announcement procedure ... has still not been completed, it is evident from the above-mentioned provisions of the Administration Act that the institution cannot be left without a head because the head’s term of office has expired, regardless of whether this concerns a regular head or an acting head. Since the acting Agent enjoys all the rights, duties and powers vested in the head, the intent of the Council of Ministers is clear, namely to extend the work of the acting Agent up until the completion of the legally prescribed procedure for the appointment of the head of the institution, in order to prevent the occurrence of irreparable [damage] to the tasks and duties undertaken before the [Court]. In addition, the intent of the Council of Ministers to enable the ... Office to continue its functioning is also clear from the fact that, after the period at issue, the Plaintiff [that is, Ms Monika Mijić] has continued to perform her tasks and duties within the Office on the basis of the above-mentioned decision of the Council of Ministers [of Bosnia and Herzegovina].”

The Appeals Chamber’s decision further indicates (see also paragraph 81 below) that Ms Monika Mijić was appointed as acting Agent once again by the Council of Ministers on 20 May 2021, with effect from 30 March 2021, and that upon the expiry of that period on 30 June 2021, the Ministry of Human Rights and Refugees sought to “deregister” her again. It appears from the information in the case file, however, that Ms Monika Mijić has continued to serve as acting Agent since then, in the absence of a decision by the Council of Ministers on her dismissal as mentioned in the Appeals Chamber’s decision.

Notifications to the Court regarding the Agent of the Council of Ministers of Bosnia and Herzegovina before the Court during the relevant period

52. On 15 January 2021 the Court was notified of the appointment of three acting Agents to represent the Government of Bosnia and Herzegovina before it – namely Ms Harisa Bačvić, Ms Monika Mijić and Ms Jelena Cvijetić. According to the information provided in the letter, those appointments were made by the Council of Ministers of Bosnia and Herzegovina at its session held on 29 December 2020.

53. By a letter dated 19 April 2024, the Court was notified that at its session held on 19 March 2024, the Council of Ministers of Bosnia and Herzegovina had discharged Ms Monika Mijić and the other acting Agent, Ms Harisa Bačvić, from the position of acting Agents before the Court. At the same session, it had adopted a decision to appoint three acting Agents, including Ms Monika Mijić as the Head of the Office of the Agent, together with Mr Amer Hasanefendić and Mr Bojan Bajić (published in the Official Gazette no. 26/24 on 16 April 2024).

54. According to the latest information provided by the acting Agents of the Government on 14 October 2024, the Council of Ministers addressed the issue of the expiry of the mandate of the acting Agents before the Court at its fifty-sixth session held on 18 July 2024. Referring to the decision of the Appeals Chamber of the Court of Bosnia and Herzegovina referred to in paragraphs 50 and 51 above, the Council of Ministers adopted the following “conclusion”:

“... given that the competition procedure for the election and appointment of the Agent ... has not been completed and that [the Office of the Agent] ... cannot be left without management, [the Council of Ministers decides], with the aim of preventing harmful consequences for the [Office of the Agent], that the acting Agents should remain in office pending the [completion] of the competition procedure.”

INTERNATIONAL LAW AND PRACTICE

International law and practice relating to the substantive legal issues before the Court

United Nations

55. On 13 April 2017 the United Nations Human Rights Committee issued its latest Concluding Observations on Bosnia and Herzegovina (CCPR/C/BIH/CO/3), which read as follows, in so far as relevant (for earlier Concluding Observations of this Committee relating to Bosnia and Herzegovina, see Sejdić and Finci, cited above, § 20):

“11. The Committee recalls its previous recommendations (see CCPR/C/BIH/CO/1, para. 8, and CCPR/C/BIH/CO/2, para. 6) and reiterates its concern that the Constitution and Election Act of the State party continue to exclude persons not belonging to one of the State party’s ‘constituent peoples’, (Bosniacs, Croats and Serbs), from being elected to the House of Peoples and to the tripartite Presidency of Bosnia and Herzegovina. The Committee regrets that, notwithstanding its previous recommendations and the judgments of the European Court of Human Rights, legislative efforts to amend the State Party’s electoral framework continue to stall. ...

12. The State party should adopt an electoral system that guarantees equal enjoyment of the rights of all citizens under article 25 of the Covenant, irrespective of ethnicity. In that regard, the State party should, as a matter of urgency, amend its Constitution and Election Act to remove provisions that discriminate against citizens from certain ethnic groups by preventing them from fully participating in elections. ...”

56. In its most recent Concluding Observations on Bosnia and Herzegovina, the Committee on the Elimination of Racial Discrimination held as follows, in so far as relevant (document CERD/C/BIH/CO/12-13 of 10 September 2018 – for earlier Concluding Observations of this Committee relating to Bosnia and Herzegovina, see Sejdić and Finci, cited above, § 19):

“11. The Committee remains concerned that the State party’s Constitution and electoral laws and those existing at entity levels still contain discriminatory provisions that bar ‘[O]thers’ from standing as candidates for the Presidency and the House of Peoples, despite the Committee’s previous recommendations (CERD/C/BIH/CO/9-11, para. 5) and the judgment of the European Court of Human Rights in Sedjić and Finci v. Bosnia and Herzegovina. ...

12. The Committee urges the State party to take concrete measures to overcome obstacles to the adoption of amendments to its Constitution and electoral laws at all levels. In that vein, the Committee recommends that the State party encourage all parties to reach a consensus and establish and implement a planned calendar for the implementation of the Committee’s recommendations and the judgment of the European Court of Human Rights. ...”

Council of Europe

(a) Parliamentary Assembly

57. On becoming a member of the Council of Europe in 2002, Bosnia and Herzegovina undertook to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary” (see Opinion 234 (2002) of the Parliamentary Assembly of the Council of Europe of 22 January 2002, paragraph 15(iv)(b)). Thereafter, the Parliamentary Assembly of the Council of Europe has consistently and repeatedly reminded Bosnia and Herzegovina of this post-accession obligation and urged it to adopt the necessary constitutional changes with a view in particular to removing constitutional discrimination against the “Others”, as well as the members of the “constituent peoples” who do not reside in the Entity where their ethnic group is largely represented (see, for instance, Resolution 1383 (2004) of 23 June 2004; Resolution 1513 (2006) of 29 June 2006; Resolution 1626 (2008) of 30 September 2008; Resolution 1701 (2010) of 26 January 2010; Resolution 1725 (2010) of 29 April 2010; Resolution 1855 (2012) of 24 January 2012; Recommendation 2025 (2013) of 2 October 2013; and Resolution 2201 (2018) of 24 January 2018).

58. More recently, in Resolution 2534 (2024) dated 26 January 2024 (on the progress of the Assembly’s monitoring procedure between January and December 2023), the Assembly welcomed the adoption of important reforms in spite of the persistence of serious challenges to the authority and legitimacy of the State institutions. The Assembly also reiterated its call for constitutional and electoral reforms with the purpose of eliminating discrimination based on ethnic affiliation, in line with the requirements of the Convention.

(b) Committee of Ministers

59. The Committee of Ministers of the Council of Europe, in its supervisory function under the terms of Article 46 § 2 of the Convention, has adopted a number of interim resolutions concerning the implementation of the Sejdić and Finci group of judgments over the years (see, for instance, Zornić, cited above, § 12, and Pudarić v. Bosnia and Herzegovina [Committee], no. 55799/18, § 18, 8 December 2020).

60. At its 1501st meeting held on 11 to 13 June 2024, the Committee of Ministers examined the state of implementation of the Sejdić and Finci group of cases and adopted the following decision (CM/Del/Dec(2024)1501/H46‑7):

“The Deputies

...

As regards general measures

3. recalled again with utmost concern that, as a direct result of the absence of measures taken by the respondent State, to date four general elections have been held under the same regulatory framework which the European Court found to be discriminatory, despite the repeated calls of the Committee over the past 14 ... years, including in its Interim Resolutions CM/ResDH(2011)291, CM/ResDH(2012)233, CM/ResDH(2013)259, CM/ResDH(2021)427 and CM/ResDH(2023)481;

...

6. insisted firmly, therefore, on the utmost importance of instantly relaunching the electoral reform work, while pursuing all consultations necessary aimed at eliminating discrimination based on ethnic affiliation or failure to meet a combination of ethnic affiliation and place of residence in elections for the Presidency and the House of Peoples of Bosnia and Herzegovina; emphasised in this regard that in line with the European Court’s judgments the full implementation of this group of cases cannot be achieved solely by amendments to the electoral legislation, but will ultimately also require changes to the Constitution;

...”

61. The Committee of Ministers examined the matter again at its 1521st meeting of 4 to 6 March 2025, at which it decided as follows (CM/Del/Dec(2025)1521/H46-7):

“The Deputies

...

3. deeply deplored the fact that despite the repeated assurances by the authorities of Bosnia and Herzegovina over the past 15 years (including in the coalition agreement of 29 November 2022 between the leaders of several political parties), the constitutional and legislative amendments required by [the Sejdić and Finci group of cases] have still not been made and time is running out for the authorities to bring the Constitution and electoral legislation of Bosnia and Herzegovina in compliance with the Convention before the forthcoming 2026 elections;

4. recalled once again that the failure to do so would not only amount to a manifest breach of obligations under Article 46, paragraph 1, of the Convention but would also seriously undermine the legitimacy and the credibility of the country´s future elected bodies, and would ultimately represent a threat to the future effectiveness of the Convention machinery;

...

6. stressing the urgency of finding new ways and means of progressing with the adoption of all constitutional and legislative reforms necessary to bring the electoral system into line with the Convention requirements, exhorted the authorities to devise without further delay a concrete action plan, with a clear timeframe, with a view to finding rapidly a solution to the present situation; strongly encouraged in that regard the authorities to establish an inter-agency working group comprised of all relevant stakeholders to work to that end and to take advantage of all expertise within the Council of Europe, notably the Venice Commission, to rapidly reach consensus on the required electoral system reform;

...”

(c) Commissioner for Human Rights

62. On 24 April 2023 the then Commissioner for Human Rights, Ms Dunja Mijatović, made a submission to the Committee of Ministers in the context of the supervision of the execution of the Sejdić and Finci group of cases, in which she emphasised the negative impact of the delay in the execution of those judgments on social cohesion and inter-ethnic relations. The Commissioner pointed to the deeply embedded “ethnic keys” in the country’s constitutional system, at both State and Entity levels, which had amplified divisions along ethnic lines over the years, and made the following observations:

“16. The longstanding non-execution of these judgments is a reminder that the legacy of the violent past still lingers in Bosnia and Herzegovina 30 years after the war, and is impeding social cohesion, reconciliation, and progress. ...

17. The Commissioner considers that the non-execution of these judgments is the expression of a persisting approach which does not place human rights at its centre, and which also manifests itself in rising ethnic tensions and polarisation, as well as lingering divisions along ethnic lines in education.

...

20. More than fourteen years have passed since the adoption by the Grand Chamber of the judgment in Sejdić and Finci, the first judgment of the five cases against Bosnia and Herzegovina concerning discriminatory provisions in the Constitution and the electoral legislation before the European Court of Human Rights. The Commissioner regrets that the authorities have not yet executed these judgments despite four interim resolutions and multiple decisions of the Committee of Ministers, as well as intensive engagement by the international community, with the help of the Venice Commission. As a result, many citizens of Bosnia and Herzegovina continue to be discriminated against on account of their ineligibility to stand for election to the Presidency of Bosnia and Herzegovina or the House of Peoples of Bosnia and Herzegovina.

21. In the Commissioner’s view, the failure of the authorities to execute these judgments has contributed to the further deterioration of the situation in Bosnia and Herzegovina and has amplified ethnic divisions. Increased threats to peace and stability, the rise of hate speech, glorification of war criminals and unsanctioned genocide denial, as well as longstanding divisions in education along ethnic lines, are just some of the negative consequences of the preservation of a system based on ethnic discrimination. It is imperative that the authorities place focus on building a state based on the equality of citizens, rather than on further embedding ethnic discrimination in the Constitution and the electoral legislation.”

(d) European Commission for Democracy through Law (Venice Commission)

(i) Material pertaining to Bosnia and Herzegovina

63. The Venice Commission, the Council of Europe’s advisory body on constitutional matters, has adopted a number of opinions over the years on the constitutional and electoral system in Bosnia and Herzegovina, including, in particular the “Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative” (CDL‑AD(2005)004, 11 March 2005), the “Opinion on different proposals for the election of the Presidency of Bosnia and Herzegovina” (CDL‑AD(2006)004, 20 March 2006), and the “Opinion on the draft amendments to the Constitution of Bosnia and Herzegovina” (CDL‑AD(2006)019, 12 June 2006). These opinions were cited at length in Sejdić and Finci (cited above, § 22).

64. In addition, following a request received from the Constitutional Court of Bosnia and Herzegovina, the Venice Commission prepared an amicus curiae brief on the mode of the election of delegates to the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina (CDL-AD(2016)024) of 17 October 2016). This brief provides as follows, in so far as relevant (footnotes omitted):

“20. ... [C]ontrary to what one might expect in a federal entity, the composition of the House of Peoples [of the Federation] does not mainly reflect the participation of the cantons in the legislative process. In reality, it primarily represents the constituent peoples on a parity basis, ensuring that each constituent people has the same number of representatives and represents the population of the cantons proportionally.

...

25. ... [T]his distortion of proportionality in the electoral system may be thought to clash with principles of European electoral heritage when the election is for a directly elected part of the legislature, but the concepts of equality of ballot strength and proportionality do not necessarily apply to the special parts of the [Bosnia and Herzegovina] legislature, which are designed to represent constituent peoples and others.

...

48. ... The method of selecting a second chamber is context dependent, the purpose of the second chamber and the historical traditions of the country in question are key contextual determinants. The Venice Commission has reported: ‘It is very difficult to identify a pattern and there is an extraordinary heterogeneity of models for selecting the members of Second Chambers. Decision on how to select a Second Chamber is context-dependent and it results from pondering, on the one hand, the functions assigned to the chamber with the historical traditions on institutional representation, on the other hand.’ With respect to the selection of Second chambers being context-dependent, the Constitutional Court of [Bosnia and Herzegovina] held in the constituent peoples case (U-5/98), pointing to the special context [in Bosnia and Herzegovina], that ‘Minimum or proportional representation in the Federation legislature must be interpreted from a different angle. To the extent that there is a bicameral parliamentary structure in the first Chamber based on universal and equal suffrage without any ethnic distinctions and that the second Chamber, the House of Peoples, also provides for the representation and participation of others, there is not prima facie a system of total exclusion from the right to stand as a candidate’.

49. It is not inherently undemocratic to have a second chamber that is not proportionally representative of the population. In particular, bicameralism is often practised in federal states to equally represent the sub-national authorities at a national level; where this is the purpose of the second chamber, it is entirely appropriate that the members are selected by those subnational authorities. A corollary of representing a sub-national authority in this manner is the, seemingly, disproportionate representation of the different populations. ...

50. In summary, second chambers seem to be intended generally to ensure some representation of sub-national entities, in particular in federal states. This seemingly permanent feature was present at the time of the drafting of the [Convention] and of the ICCPR and still is present today. It is therefore very unlikely that these treaties could be interpreted as requiring a radical change of the constitutional order of most countries with a bicameral system. At least, systems ensuring no equal representation of the population in second chambers, but aiming to ensure other aspects of the principle of equality, should be considered in conformity with these treaties.

51. Thus, where the purpose of a second chamber is to represent sub-national authorities, the assumption is that equality operates between those authorities, not between the populations of those authorities.

...

54. The societal value of ensuring representation of different components of society in second chambers, particularly in multi-ethnic democracies, has been recognised. ...

...

59. In both Sejdić and Finci as well as in Zornić, the European Court of Human Rights was quite prepared to accept that there is a relatively wide degree of latitude in relation to the election of the second chamber; the problem was that the total disenfranchisement of certain persons was not required to effect a politically acceptable settlement. This difficulty is not applicable to a scenario where no community is excluded from representation; indeed the Election Act of [Bosnia and Herzegovina] guarantees the equal representation of all constituent peoples and the representation of others.”

(ii) Other relevant material

65. The Code of Good Practice in Electoral Matters was adopted by the Venice Commission at its 51st (Guidelines) and 52nd (Report) sessions on 5‑6 July and 18-19 October 2002 (Opinion no. 190/2002, CDL-AD (2002) 23 rev.), and approved in 2003 by the Parliamentary Assembly and the Congress of Local and Regional Authorities of the Council of Europe (“the Congress”). This Code identifies the five principles underlying Europe’s electoral heritage as universal, equal, free, secret and direct suffrage, to be exercised in elections held at regular intervals. The Code specifies that the obligation of “equal voting power”, which requires seats to be evenly distributed between the constituencies, must at least apply to elections to lower houses of parliament and regional and local elections. Similarly, it recommends that at least one chamber of the national parliament must be elected by direct suffrage.

66. In a recent report on bicameralism (CDL-AD(2024)007, 18 March 2024), the Venice Commission reiterated, on a wider scale, the principles enunciated in its amicus curiae brief referred to above (see paragraph 64 above). It noted that “members of the second chamber are usually selected in a different way from those of the lower house, because of the difference in their representativeness”. Echoing the Code of Good Practice in Electoral Matters, it stated that the second chamber of a bicameral system did not need to be elected by direct elections to be in compliance with European standards, and found that there was “a close correlation between the method of selection and the representational nature of the second chamber”. A similar correlation was found in the report in respect of the scope of the powers of the second chamber and the method of its election: “Where the upper house owes its existence to historical tradition or represents special (e.g. territorial) interests, it is hardly justifiable that it should be in the same position as the lower house, which is based on popular vote. In such cases, it is reasonable to expect that the second chamber’s powers will be adapted to its composition.”

(e) Congress of Local and Regional Authorities

67. Following an invitation by the authorities of Bosnia and Herzegovina, the Congress deployed an observation mission to assess the cantonal elections held in the Federation of Bosnia and Herzegovina on 2 October 2022. The relevant parts of its election observation report, adopted at its 44th session held on 22 March 2023 (CPR(2023)44-02), read as follows (footnotes omitted):

“10. Traditionally, the cantons have mainly been led by two of the three ethnic-based parties ... After the 2018 elections, non-ethnically affiliated or ‘civic’ political parties have started gaining more support at cantonal level. For instance, the Sarajevo Canton was won in 2018 by a coalition of civic parties (Our Party, the Democratic Front and the Social Democratic Party).

...

13. Each canton has its own constitution, parliament (or Cantonal Assembly), and government, thus holding extensive powers and responsibilities in policymaking at local level, including in the fields of taxes, police, the judiciary and other public services. Cantons also share certain competences with the Federation and municipalities. ...”

No information is provided in this report about the composition of the cantonal assemblies following the elections of 2 October 2022. However, according to information obtained by the Court proprio motu from the website of the Central Election Commission[8], thirty-five delegates were elected to the assembly of the Sarajevo Canton, in which the applicant resides. Almost half of those delegates represented the so-called “non-ethnically affiliated” or “civic” parties, as mentioned in paragraph 10 of the Congress’s report[9].

(f) European Commission against Racism and Intolerance

68. In its second report on Bosnia and Herzegovina, adopted on 7 December 2010 (CRI(2011)2), the European Commission against Racism and Intolerance (ECRI) made the following remarks, as relevant:

“141. As noted in ECRI’s first report, the emphasis placed both in law and in fact on ensuring the full enjoyment of rights by persons belonging to one of the constituent peoples has left persons who do not identify themselves as belonging to one of these peoples in a situation of serious disadvantage. Aside from the specific situation of persons belonging to national minorities (examined elsewhere in this report), ECRI is concerned that persons who do not wish to identify themselves with any single constituent people or national minority (for example, children of mixed marriages), many of whom self-identify as Bosnians, are in many respects ignored both in the legal system in place and in practice.

...

171. ECRI refers to its recommendations earlier in this report, urging the authorities to amend the Constitution and electoral law so as to ensure that all citizens enjoy equal electoral rights – both the right to vote and the right to run for election –, whatever their ethnic origins...”

In its third and fourth reports on Bosnia and Herzegovina, adopted on 6 December 2016 and 9 April 2024 respectively (CRI(2017)2 and ECRI(2024)16 respectively), ECRI reiterated its recommendation that the authorities of Bosnia and Herzegovina take determined action to comply with the Court’s judgment in Sejdić and Finci (cited above).

(g) Framework Convention for the Protection of National Minorities

69. The Framework Convention for the Protection of National Minorities (“the Framework Convention”), which was adopted in 1995 and came into force on 1 February 1998, was ratified by Bosnia and Herzegovina on 24 February 2000. Article 15 of the Framework Convention reads as follows:

“The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.”

70. On 24 June 2024 the Advisory Committee on the Framework Convention published its fifth opinion on Bosnia and Herzegovina (no. ACFC/OP/V(2023)5). The Advisory Committee noted that Bosnian society remained deeply divided along ethnic lines, with divisions and outright political and rhetorical hostility between the three “constituent peoples” continuing to mark societal discourse. It observed with concern that the situation had become even more fragile recently, with an increased risk of conflict. Referring to the Sejdić and Finci group of cases, it further noted with concern the failure of the State authorities to implement key Court judgments, which had seriously damaged faith “in the systems and institutions of the State, as well as in European institutions”.

European Union

71. In its resolution of 6 July 2022 on the 2021 Commission Report on Bosnia and Herzegovina (P9_TA(2022)0283), the European Parliament noted that Bosnia and Herzegovina was facing the greatest instability since the war between 1992 and 1995. It nevertheless stressed that under the Convention, citizens of Bosnia and Herzegovina should enjoy equal rights and obligations, regardless of their ethnic background, and pointed out that the country had “committed to international and domestic obligations to end systematic ethnicity and residence-based discrimination ... while respecting the constitutional order of the country ...”. It urged in that regard that the concept of “constituent peoples” should not lead to discrimination against other citizens. In a subsequent resolution issued on 12 July 2023 on the 2022 Commission Report on Bosnia and Herzegovina (P9_TA(2023)0284), the European Parliament expressed its regret regarding the failure of the political actors to bring the Constitution and the electoral framework into line with the Convention, by failing to implement the Court’s rulings in the Sejdić and Finci group of cases, and repeated its findings that the concept of “constituent peoples” should not imply additional rights for people identifying with one of those groups compared with other citizens of Bosnia and Herzegovina.

72. In its opinion delivered on 29 May 2019 on Bosnia and Herzegovina’s application for membership of the European Union (COM(2019) 261 final), the European Commission identified fourteen key priorities for the country to fulfil in order to be recommended for opening European Union accession negotiations, focusing on the areas of, inter alia, democracy/functionality, rule of law and fundamental rights. Among the priorities listed by the European Commission was the requirement to fundamentally improve the institutional framework, including at constitutional level, in order to “ensure equality and non-discrimination of citizens, notably by addressing the Sejdić‑Finci ... case-law” (point 4 (f)).

73. On 15 December 2022 the European Council agreed to grant the status of candidate country to Bosnia and Herzegovina. On 12 March 2024 the European Commission presented the Council with a report (COM(2024)129 final) on progress made by Bosnia and Herzegovina and recommended opening accession negotiations in view of the achievement of the necessary level of compliance with the membership criteria. At its meeting held on 22 March 2024 the European Council decided to open accession negotiations with Bosnia and Herzegovina (EUCO 7/24).

International law and practice relating to the question of State representation before other international courts

74. The Statute of the International Court of Justice (ICJ) provides in Article 42 § 1 that the parties to the proceedings before it are to be represented by Agents. The relevant Articles of the Rules of Court of the ICJ provide as follows as regards representation of the parties:

Institution of proceedings

Article 38

“...

3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.”

Article 40

“1. ... all steps on behalf of the parties after proceedings have been instituted shall be taken by agents. ...

2. When proceedings are instituted by means of an application, the name of the agent for the applicant shall be stated. The respondent, upon receipt of the certified copy of the application, or as soon as possible thereafter, shall inform the Court of the name of its agent.

...”

75. There is no specific provision in the Statute or the Rules of the ICJ on the resolution of conflicts as to the representation of States. The ICJ has, however, addressed this issue on a case-by-case basis. One such conflict arose in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)[10]. Bosnia and Herzegovina, which instituted the proceedings in 1993, were represented by their Agent, appointed by a decision of the Presidency of Bosnia and Herzegovina. On 9 June 1999 the Chair of the tripartite Presidency – who at the time was the member of the Presidency from the Republika Srpska – informed the ICJ of the appointment of a new co‑Agent, who in turn notified the court that Bosnia and Herzegovina wished to discontinue the case. The Agent of Bosnia and Herzegovina asserted in response that the Presidency of Bosnia and Herzegovina had taken no action to appoint a co-Agent or to terminate the proceedings before the ICJ. That position was supported by a number of letters submitted by the new Chair of the Presidency, but continued to be contested by the former Chair and the purported co-Agent. Appeals made by the President of the ICJ to the Chair of the Presidency to clarify the position of Bosnia and Herzegovina regarding the pendency of the case similarly generated conflicting responses from the Chair of the Presidency and the Agent of Bosnia and Herzegovina on the one side, and the former Chair of the Presidency and the co-Agent that he had purportedly appointed on the other side. Ultimately the ICJ, having examined all the correspondence received on this question, found at its meeting of 10 October 2000 that “Bosnia and Herzegovina had not demonstrated its will to withdraw the [a]pplication in an unequivocal manner” and there had, therefore, been no discontinuance of the case[11]. Judgment was delivered in the case on 26 February 2007.

76. A similar controversy ensued when in May 2016 the Agent who had been appointed to represent Bosnia and Herzegovina in the aforementioned case of Bosnia and Herzegovina v. Serbia and Montenegro, namely Mr Sakib Softić, enquired whether his mandate as Agent in that case was valid for the initiation of proceedings for revision of the judgment delivered on 26 February 2007. He was informed by the Registrar of the ICJ that a new appointment would be required for the institution of revision proceedings. Nevertheless, despite the absence of a document attesting to the appointment of Mr Softić for the purposes of proceedings for the revision of the 2007 judgment, on 23 February 2017 such a request – signed by Mr Softić as the Agent of Bosnia and Herzegovina – was submitted to the ICJ. Upon a request for clarification by the ICJ, two members of the Presidency, including the Chair, responded respectively that “[n]o official institution of Bosnia and Herzegovina [had] made a decision to initiate the revision of the Judgment of the ICJ” and that the issue for which clarification was sought had “not been discussed nor decided on by the Presidency of Bosnia and Herzegovina, as a collective head of State of Bosnia and Herzegovina”. The third member of the Presidency argued, however, that the initial decision on the appointment of Mr Softić as Agent remained valid and in force, and that the request for revision fell within his mandate. The ICJ considered, on the basis of the correspondence received, that “no decision ha[d] been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the judgment of 26 February 2007” and that it was therefore not properly seised of the matter[12].

THE LAW

77. At the time of lodging his application with the Court, the applicant complained that the ethnic and territorial requirements governing the elections to the House of Peoples of Bosnia and Herzegovina, which prevented him from voting for the candidates of his choice, amounted to discrimination under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1 to the Convention. At subsequent stages of the proceedings, he also raised the same complaint under Article 1 of Protocol No. 12 to the Convention (see paragraph 3 above). The applicant further complained of a violation of Article 1 of Protocol No. 12 on the same grounds in respect of elections to the Presidency of Bosnia and Herzegovina.

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Article 3 of Protocol No. 1 provides as follows:

“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

Article 1 of Protocol No. 12 reads:

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

PRELIMINARY ISSUES

Authority of the acting Agents to represent the respondent Government before the Court

78. The Court notes at the outset that shortly after the delivery of the Chamber judgment in the present case, the applicant challenged the authority of the acting Agents of the respondent Government to represent the latter before the Court.

79. The Court considers that the applicant’s objection to the authority of the acting Agents, which also raises the question whether the Grand Chamber has been properly seised in the present case, must be addressed as a preliminary matter. The submissions made by the parties, and by some individual members of the Government and the Presidency of Bosnia and Herzegovina in this regard, are therefore set out below.

Submissions made prior to the referral of the case to the Grand Chamber

80. By a letter dated 19 September 2023, signed by two of the Government’s acting Agents – namely Ms Monika Mijić and Ms Jelena Cvijetić – the respondent Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention (see paragraph 6 above).

81. In a letter sent on the same day, and received at the Court’s Registry on 26 September 2023, the applicant challenged – for the first time in the proceedings – the authority of the three acting Agents of the respondent Government who had been participating in the proceedings before the Chamber (including Ms Monika Mijić, one of the incumbent acting Agents and the current Head of the Office of the Agent). On the basis of information obtained from the Official Gazette of Bosnia and Herzegovina, he stated that all three acting Agents had been appointed by the Council of Ministers of Bosnia and Herzegovina on 29 December 2020, for a period of three months. Following the expiry of that period, on 20 May 2021 the Council of Ministers had appointed the same three individuals for another period of three months, effective as of 30 March 2021. The applicant argued that under the relevant domestic law (see paragraph 49 above), the mandate of an “acting” official was limited in duration to three months, with the possibility of one extension only. He asserted on that basis that as of 30 June 2021, those acting Agents had no legal authority to represent the Government of Bosnia and Herzegovina before the Court. He therefore requested the Court to stop any further communication with the “so-called acting Agents” and to correspond directly with their “employer” – that is, the Ministry of Human Rights and Refugees of Bosnia and Herzegovina.

82. In another letter dated 10 October 2023, addressed directly to the Court’s President, the applicant reiterated his contention that the acting Agents who had submitted the referral request did not have the authority to represent the respondent Government before the Court, as their mandate had expired over two years previously. He further claimed that these persons had also not obtained the consent or permission of the Government to request the referral of the case to the Grand Chamber, as evidenced by the press statement issued by the Minister of Human Rights and Refugees enclosed with his letter. The applicant’s letter was sent to the Government for comment.

83. On 24 October 2023 the acting Agents of the Government transmitted to the Court a letter from the Chair of the Council of Ministers of Bosnia and Herzegovina, Ms Borjana Krišto. The Chair explained that the Council of Ministers held exclusive competence to appoint and dismiss the Agents before the Court, who were accountable solely to the Council of Ministers for their work. On that basis, the Chair confirmed that the duty of acting Agents of the Council of Ministers of Bosnia and Herzegovina before the Court was performed by Ms Monika Mijić and Ms Harisa Bačvić at that time “in the full capacity and with all the powers of the Agent as stipulated by the Decision of the Council of Ministers” (see paragraphs 44-48 above for further information on the relevant Decision). The Chair further maintained that their status as acting Agents had also been confirmed by, inter alia, a final judgment of the Court of Bosnia and Herzegovina (see paragraphs 50-51 above). It was stated in the letter that Ms Jelena Cvijetić, who had co-signed the referral request with Ms Monika Mijić (see paragraph 80 above), had been relieved of her duties by the Council of Ministers on 19 September 2023, at her own request. It was also explained in the letter that in accordance with the above‑mentioned Decision of the Council of Ministers, the acting Agents had “all the powers to independently undertake all legal actions before [the] Court, including also the submission of the [Grand Chamber referral] request, without any prior consent or approval of the Council of Ministers”.

84. On 26 October 2023 the acting Agents of the respondent Government submitted another letter to the Court, in response to the applicant’s previous submissions of 19 September and 10 October 2023. In addition to the arguments made by the Chair as noted in the previous paragraph, this letter pointed to Article 2 of the above-mentioned Decision of the Council of Ministers, which specified that communication between the Government of Bosnia and Herzegovina and the Court took place exclusively through the Agent of the Council of Ministers before the Court. Accordingly, contrary to the applicant’s claim, the Ministry of Human Rights and Refugees had no competence to communicate with the Court in relation to cases pending before the latter.

85. On 10 November 2023 a letter was received from the co-Chair of the Council of Ministers of Bosnia and Herzegovina, Mr Zukan Helez, informing the Court that a proposal – reportedly made by the Ministry of Human Rights and Refugees – to discuss developments regarding the present case, as well as the status of the acting Agents, at the Council of Ministers’ meeting scheduled for 26 October 2023 had been turned down by the Chair of the Council of Ministers. The co-Chair claimed on that basis that the Council of Ministers had not taken any decisions about the status of the acting Agents following the expiry of their mandates in June 2021, or about the referral of the present case to the Grand Chamber. He further emphasised that the Council of Ministers of Bosnia and Herzegovina was a collective body with a system of collective decision-making, which meant that the Chair could not act or decide individually on any matter, including in communications with the Court.

86. On 14 November 2023 the applicant responded to the acting Agents’ letter of 26 October 2023. He argued firstly that a challenge to the authority of the “so-called acting Agents” could not be rebutted by the challenged individuals themselves and that only the Government of the respondent Party – that is, the Council of Ministers of Bosnia and Herzegovina – could legitimately respond to his allegations. In the absence of a response from that body, the request for the referral of the present case to the Grand Chamber submitted by unauthorised individuals was not valid and the Chamber judgment had therefore become final three months after its delivery. Secondly, Ms Monika Mijić could in any event not serve as acting Agent, because she had already been appointed to that position three times in a row, contrary to section 55a of the Administration of Bosnia and Herzegovina Act (see paragraph 49 above), which allowed a maximum of two consecutive terms. The applicant thirdly argued, along the same line as the co-Chair of the Council of Ministers (see paragraph 85 above), that the letter submitted to the Court by the Chair of the Council of Ministers was null and void.

87. The applicant appended to his letter a public statement issued by the Ministry of Human Rights and Refugees on an unspecified date, which noted that the Chamber judgment in the present case, and the action to be taken by the Government in relation to that judgment, had not been submitted by the acting Agents for review by the Council of Ministers or the Ministry. The statement also confirmed that the Ministry’s proposal to discuss the status of the acting Agents at the Council of Ministers meeting held on 26 October 2023 had been turned down by the Council of Ministers. The statement indicated, however, that in the absence of a decision by the Council of Ministers in respect of the acting Agents, they had derived their mandate to serve from the judgment of the Court of Bosnia and Herzegovina dated 23 March 2022 (see paragraphs 50 and 51 above).

88. As noted in paragraph 7 above, on 11 December 2023 the panel of the Grand Chamber adjourned the examination of the referral request and asked the Government to indicate whether they confirmed the request of 19 September 2023 for the referral of the case to the Grand Chamber.

89. In the Government’s response sent on 13 December 2023, signed by the acting Agent Ms Monika Mijić, the referral request was confirmed. The letter indicated that by virtue of Article 5 of the Decision on the Agent, the acting Agent was competent to request the referral of a case to the Grand Chamber; no prior or subsequent consent of the Council of Ministers or any other authorities was required for any legal steps to be undertaken by the acting Agents in the proceedings before the Court, except for a decision to accept a friendly settlement or to submit a unilateral declaration. The letter also referred to the Court of Bosnia and Herzegovina’s decision of 23 March 2022 that confirmed the mandate of the acting Agents until the adoption of a new decision by the Council of Ministers in respect of them. It was lastly emphasised in the letter that there had been no decision by the Council of Ministers to withdraw or to contest in any way the referral request of 19 September 2023.

90. In the meantime, on 12 December 2023 the Chair of the Presidency of Bosnia and Herzegovina at that time, Mr Željko Komšić, sent a letter to the Court stating that the Council of Ministers of Bosnia and Herzegovina had not taken a decision to submit a request for the referral of the present case to the Grand Chamber, nor had it authorised anyone to submit such a request. Moreover, the Council of Ministers had not determined the “status and legality” of the acting Agents in question.

91. As indicated in paragraph 7 above, on 14 December 2023 the panel of the Grand Chamber granted the Government’s referral request.

Submissions made following the referral of the case to the Grand Chamber

(a) The applicant

92. On 5 January 2024 the applicant contested once again the incumbent acting Agent’s authority to represent the respondent Government and challenged, in particular, the acting Agent’s submissions of 13 December 2023 (see paragraph 89 above). While the acting Agent had sought to rely on the decision of the Court of Bosnia and Herzegovina in support of the continuing validity of her mandate, the applicant argued that no court had “the authority to appoint State representatives before international courts”. The applicant therefore repeated his plea for the referral request to be rejected as inadmissible and for the Chamber judgment to be declared final.

93. In his memorial submitted to the Grand Chamber on 7 June 2024, the applicant drew the Court’s attention to the fact that the Council of Ministers of Bosnia and Herzegovina had appointed Ms Monika Mijić as acting Agent for the fourth time in a row on 19 March 2024, allegedly in breach of section 55a of the Administration of Bosnia and Herzegovina Act. He noted that a criminal complaint had been lodged against the Chair and members of the Council of Ministers on account of that allegedly illegal action by a representative of the Democratic Front party. He added that, in any event, the Presidency of Bosnia and Herzegovina was solely and exclusively authorised to appoint all agents and representatives of Bosnia and Herzegovina by virtue of Article V § 3 (b) of the Constitution (see paragraph 36 above). In support of that argument, the applicant submitted to the Court the decision of the Presidency (dated 4 October 2002) on the appointment of the Agent of Bosnia and Herzegovina in certain proceedings pending before the International Court of Justice at the time.

94. The applicant further argued that while the acting Agents of the respondent Government had persistently claimed that the Council of Ministers’ Decision on the Agent formed the legal basis of their mandate throughout the relevant period, the Council of Ministers had no authority to adopt such a decision by way of a by-law.

95. The applicant further pointed to the fact that all past and current appointments of acting Agents before the Court made by the Council of Ministers had involved persons of Bosniac, Croat or Serb ethnic origin. He claimed that such ethnic structuring of the acting Agent’s office was aimed exclusively at perpetuating the ethnically organised political system and interests in the country, based on systemic discrimination in favour of the “constituent peoples”.

96. In further submissions made on 10 September 2024, the applicant argued that following her reappointment on 19 March 2024, the mandate of the acting Agent (Ms Monika Mijić) had once again expired on 17 July 2024, and there had since been no new decisions on the appointment of Government Agents. In the applicant’s view, the Court of Bosnia and Herzegovina’s decision dated 22 March 2023 (see paragraphs 50 and 51 above), which the acting Agent had relied on in support of the validity of her authority, had to be read in the specific context in which it had been delivered (deregistration for tax and insurance purposes), and could not be used as a basis for future breaches of the Administration of Bosnia and Herzegovina Act. The applicant further maintained his argument that the appointment of Agents of Bosnia and Herzegovina fell within the exclusive jurisdiction of the Presidency of Bosnia and Herzegovina, and not the Council of Ministers. He asserted in that connection that section 17 of the Council of Ministers Act, which constituted the legal basis for the Decision on the Agent (see paragraphs 43 and 44 above), did not grant the Council of Ministers the authority to appoint representatives of the respondent State before international organisations.

97. By a letter dated 29 October 2024 the applicant challenged the conclusion adopted by the Council of Ministers at its 56th session on 18 July 2024 with respect to the extension of the mandate of the acting Agents appointed by a decision of 19 March 2024 (see paragraphs 53 and 54 above). The applicant stated that a member of the House of Representatives of Bosnia and Herzegovina had sought the opinion of the Office for Legislation of Bosnia and Herzegovina on the Council of Ministers’ conclusion at issue. According to the response provided by the Office for Legislation as submitted to the Court, the Council of Ministers’ appointment decision of 19 March 2024 was an individual administrative act that was limited in time by virtue of the Administration of Bosnia and Herzegovina Act (three months, renewable by a single period of three months – see paragraph 49 above). Accordingly, the subsequent conclusion of 18 July 2024, which was an act of lower legal force, could not have the effect of replacing the decision of 19 March 2024. The Office for Legislation also indicated, however, that it was not competent to assess whether the acting Agents of the Council of Ministers were authorised to represent the Government before the Court, and that only a competent court could determine that matter.

98. In reply to a question posed at the hearing, the applicant clarified that he had not challenged the authority of the acting Agents in question during the Chamber proceedings, since he had only become aware of the expiry of their mandate in September 2023 following a statement made to the press by the Minister for Human Rights and Refugees.

(b) The Government

99. The Government did not put forward any further arguments regarding the authority of their acting Agents in their memorial of 7 June 2024.

100. A specific question was put to the Government at the hearing as to whether the Grand Chamber had been properly seised in the present case, in view of the conflicting submissions received in respect of the authority of the acting Agents to request the referral of the Chamber judgment and to represent the Government before the Court. In response, the acting Agent mainly reiterated that in accordance with the relevant domestic law and practice, the acting Agent had the authority and competence to request the referral of a case to the Grand Chamber. She further emphasised that the Council of Ministers of Bosnia and Herzegovina – that is, the Government of the respondent State – had not challenged the referral request lodged in the present case, a fact which stood as evidence that the Grand Chamber had been properly seised.

The Court’s assessment

101. The issue of the representation of States before the Court is governed by Rule 35 of the Rules of Court, which provides:

“The Contracting Parties shall be represented by Agents, who may have the assistance of advocates or advisers.”

Matters such as the methods for the appointment of Agents or acting Agents before the Court, their terms of office, and the length and scope of their mandate are left to the Contracting Parties to regulate in accordance with their domestic rules and procedures. In accordance with the Court’s well‑established practice, it is the responsibility of the Contracting Parties to inform the Court of the appointment of the Agents or acting Agents representing them, and also of the termination of their mandates (see, for instance, Panioglu v. Romania, no. 33794/14, § 62, 8 December 2020, and Beg S.p.a. v. Italy, no. 5312/11, §§ 52-53, 20 May 2021). Accordingly, in the conduct of the proceedings before it, the Court proceeds on the basis of the assumption that the Agents or acting Agents of whose appointment it has been notified will continue to perform their duties unless and until the Government inform the Court otherwise (see Beg S.p.a., cited above, § 55); the Court is not called upon to assess the lawfulness of the designation or the continuation of the mandate of the Agent or acting Agent where it has been duly informed thereof by a Contracting Party. Nor is there a provision in the Convention or the Rules of Court that lays down a specific procedure for the determination of the lawful representatives of a Contracting Party in proceedings pending before the Court.

102. That being said, the Court, as the master of its own procedure and rules (see Article 25 (d) of the Convention; see also Ukraine and the Netherlands v. Russia (dec.) [GC], nos. 8019/16 and 2 others, § 383, 30 November 2022, and the cases cited therein), considers that any doubts or objections regarding the status of an individual to act as a Government representative before the Court must be raised in limine litis, in so far as the circumstances permit (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 53-54, Series A no. 12, together with Rule 55 of the Rules of Court, for similar principles set out in the context of preliminary objections to admissibility). This requirement results clearly from the general economy of the Convention, and pursues the aims of the proper administration of justice and legal stability (ibid.), given the potentially disruptive retrospective effects of a finding, at a later stage of the proceedings, of a lack of valid State representation on the entire past proceedings before the Court.

103. Turning to the facts before it, the Court notes that the Government of Bosnia and Herzegovina notified it on 15 January 2021 of the appointment by the Council of Ministers of three acting Agents to represent them before the Court, namely Ms Harisa Bačvić, Ms Monika Mijić and Ms Jelena Cvijetić (see paragraph 52 above). In the absence of any communication from the Government concerning the termination of their appointment, those three acting Agents formally maintained their status as Government representatives for the purposes of Rule 35 during the Chamber proceedings in the present case, as well as at the time of the lodging of the request for the referral of the case to the Grand Chamber on 19 September 2023. Moreover, the authority of those acting Agents remained unchallenged throughout that period. However, on the very same day that the Government’s acting Agents requested the referral of the case to the Grand Chamber, the applicant contested for the first time the validity of their mandate to represent the Government before the Court (see paragraph 81 above). The applicant mainly argued in that regard that the mandate of the acting Agents in question had expired on 30 June 2021 – that is, prior to the lodging of the present application – and that, in any event, the Council of Ministers was not vested with the authority to appoint the Agents of the respondent Government before the Court (see paragraphs 81, 82 and 92-96 above). He further contested the alleged ethnic structuring of the Agent’s office, which he claimed sought to preserve the status quo in favour of the “constituent peoples” (see paragraph 95 above).

104. The Court observes that the arguments relied on by the applicant to challenge the standing of the acting Agents to act on behalf of the Government of Bosnia and Herzegovina are not based on new developments that followed the delivery of the Chamber judgment, but were equally applicable during the Chamber proceedings. Accordingly, those arguments not only call into question the authority of the acting Agents concerned to submit the referral request, but also have the effect of contesting, in a retrospective manner, the validity of the mandate of the acting Agents throughout the entirety of the Chamber proceedings. As such, it may be expected of the applicant that he should have raised those arguments at the outset of the proceedings, and in any event prior to the delivery of the Chamber judgment, unless he was objectively prevented from doing so, which does not appear to be the case here. The Court stresses in this connection that the relevant legal framework governing the Agent of the Council of Ministers of Bosnia and Herzegovina before the Court, as well as the actual appointments made by the Council of Ministers, were published in the Official Gazette and were therefore readily available in the public domain at the time of the Chamber proceedings.

105. In those circumstances, and having regard to the principles enunciated in paragraph 102 above, allowing the applicant to challenge the authority of the acting Agents in question at this particular stage of the proceedings would risk creating results that would be detrimental to legal certainty and stability, as well as being contrary to the interests of procedural economy and the proper administration of justice. Consequently, the applicant is estopped from raising this objection before the Grand Chamber.

106. The Court notes, moreover, that there have been no official decisions in the meantime by the Council of Ministers, or any other competent State bodies, to withdraw the referral request lodged on 19 September 2023 or the authority of the Government’s incumbent acting Agent. Accordingly, for the purposes of Rule 35 of the Rules of Court, the incumbent acting Agent has maintained her status as the representative of the respondent Government in the proceedings that continued before the Grand Chamber following the delivery of the Chamber judgment. While the Court did receive submissions from some high-level State officials contesting the validity of the referral request and the authority of the acting Agent in question (see paragraphs 85 and 90 above), those were individual submissions that cannot be treated as the respondent State having demonstrated its will to withdraw the referral request, or the authority of its acting Agent, “in an unequivocal manner” (see paragraph 75 above for the ICJ’s approach in this regard).

107. Having regard to the foregoing, the Court considers that the Grand Chamber and its panel were properly seised in the present case by acting Agents who enjoyed the authority to seek the referral of the case and that the respondent State was duly represented in the instant proceedings for the purposes of Rule 35. Any actual procedural irregularity pertaining to the status of the acting Agents under domestic law remains an internal matter that falls to be resolved within the domestic legal system (see Beg S.p.a., cited above, § 55).

The Court’s competence to entertain the present application

108. By way of a general remark regarding the Court’s competence or mandate to deal with the present case, the Government contended that the case fundamentally concerned “the crucial question of the Court’s faculty [to] rule on constitutional rules forming part of a consociational arrangement, in this case a political power-sharing agreement contained in a peace agreement, as the most acceptable framework for mediating mistrust between the warring groups and consequently as an essential tool to guarantee and maintain peace and stability in the country”. In the Government’s view, external challenges to this complex constitutional architecture risked reopening inter-community conflict, for which reason “the evolution of such political systems should come from within society as a homegrown process, not as an imposition by external actors such as supra-national courts”.

109. The Court considers that this argument relates to a matter which goes to its jurisdiction within the meaning of Article 32 § 1 of the Convention, rather than raising a question of admissibility in the narrow sense of that term (see Slovenia v. Croatia (dec.) [GC], no. 54155/16, § 44, 18 November 2020). Pursuant to Article 32 § 2 of the Convention, the Court itself is called upon to decide this question, which it will therefore deal with as a preliminary matter (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 56, ECHR 2002-II (extracts)).

110. In this connection, the Court is mindful of the highly sensitive nature of the issues at stake in the present case, which concern the foundational structures of Bosnia and Herzegovina, both political and constitutional, that were put in place by an international peace agreement to end a tragic conflict. It reiterates, however, that under the Vienna Convention on the Law of Treaties, a State cannot invoke its domestic law, including the Constitution, as justification for its failure to respect its international-law commitments (see Article 27 of the Vienna Convention on the Law of Treaties, cited in Humpert and Others v. Germany [GC], nos. 59433/18 and 3 others, §§ 51 and 71, 14 December 2023).

111. Moreover, the political interests at stake do not suffice to deprive the relevant issues of their character as legal questions. Indeed, the Court has never refused to decide a case brought before it merely because it had political implications (see Ukraine v. Russia (re Crimea) ([GC] (dec.), nos. 20958/14 and 38334/18, § 271, 16 December 2020). Under the terms of Article 32 § 1 of the Convention, the Court’s jurisdiction extends to all matters concerning the interpretation and application of the Convention and Protocols which are referred to it, inter alia, by way of an individual application lodged under Article 34. Accordingly, where complaints involving political matters potentially affect the Convention rights of an individual or group of individuals, the subject matter of the case is no longer merely an issue of politics, but also a matter of law having a bearing on the interpretation and application of the Convention (see, mutatis mutandis, Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, § 450, 9 April 2024). In such instances, the Court retains the competence expressly conferred on it under Article 19 of the Convention, subject to the fundamentally subsidiary nature of its role and the margin of appreciation afforded to States, in so far as relevant. It must, however, be emphasised in this regard that when assessing the compliance of State authorities with their obligations under the Convention and the Protocols thereto in such cases, the Court does not operate in a vacuum; it takes into consideration the special historico-political context in a specific Contracting Party, as and where appropriate (see, for instance, Ždanoka v. Latvia [GC], no. 58278/00, § 121 and 133, ECHR 2006-IV, and Ždanoka v. Latvia (no. 2), no. 42221/18, §§ 55, 56 and 62, 25 July 2024).

112. In the present case, the Court is asked to rule on whether certain restrictions governing the elections to the House of Peoples and the Presidency amount to an unjustified difference of treatment among the electorate that is incompatible with Article 14 in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12 (see paragraph 77 above). These are, in principle, questions of a legal nature. The Court’s past rulings in the Sejdić and Finci group of cases, where it ruled on the Convention compatibility of the constitutional provisions at issue in the present case, albeit from the perspective of the “passive” aspect of the right to vote (see paragraph 16 above), stand as evidence that judicial adjudication on those issues is entirely consonant with its competence under Article 19 to ensure the observance of the engagements undertaken by the respondent State in the Convention and the Protocols thereto.

113. The Court accordingly concludes that it has jurisdiction to entertain the applicant’s complaints in so far as referred to the Grand Chamber (see paragraphs 114-118 below) and that the respondent Government’s objection under this head must be dismissed. It emphasises, however, that this finding is without prejudice to its examination below as to whether the specific complaints raised by the applicant may be rejected pursuant to Articles 34 and 35 of the Convention as argued by the Government.

Scope of the case before the Grand Chamber

114. According to the Court’s settled case-law, the “case” referred to the Grand Chamber embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in “the case” being limited only by the Chamber’s decision on admissibility (see, for instance, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 56, 25 March 2014, and Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, § 83, 17 January 2023). It therefore follows that the “case” referred to the Grand Chamber is the application as it has been declared admissible, together with the complaints which have not been declared inadmissible (see Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 177, 21 November 2019, and Grosam v. the Czech Republic [GC], no. 19750/13, § 60, 1 June 2023).

115. In the present case, the complaints that have been declared admissible and inadmissible by the Chamber, as well as those that have not been declared inadmissible, have been set out in paragraph 5 above. Consequently, the scope of the “case” as referred to the Grand Chamber encompasses the applicant’s discrimination complaints under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12 regarding the alleged discrimination against him in the exercise of his (active) right to vote, by reason of the ethnic and territorial limitations governing the elections to, and composition of, the House of Peoples and the Presidency of Bosnia and Herzegovina (see paragraphs 3 and 77 above; see also paragraphs 187-195 below for further discussion as to the specific nature and content of those discrimination complaints).

116. The Court notes that in his memorial of 7 June 2024 before the Grand Chamber, the applicant reiterated extensively his complaints regarding the (indirect) method of election of delegates to the State House of Peoples, and contested their “political appointment” by Entity legislative bodies as lacking electoral legitimacy, in breach of his rights under Article 3 of Protocol No. 1. Having regard to the Chamber’s decision to declare this complaint inadmissible (see paragraphs 76 and 80 of the Chamber judgment), its examination falls outside the scope of the case referred to the Grand Chamber (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 57, ECHR 2010). Accordingly, the Grand Chamber will not engage in any discussion in respect of the applicant’s complaints raised under Article 3 of Protocol No. 1 alone, but only in so far as they have been raised in conjunction with Article 14 of the Convention, which forbids discrimination in the enjoyment of the rights and freedoms set forth in the Convention and the Protocols thereto.

117. The Court further notes that in his submissions before the Grand Chamber, the applicant also complained, for the first time, about some last‑minute amendments introduced by the High Representative for Bosnia and Herzegovina to the Constitution of the Federation of Bosnia and Herzegovina and to the Election Act on the day of the general elections of 2 October 2022, which the Constitutional Court upheld as lawful on 23 March 2023. The applicant considered those amendments – which he characterised as introducing “an ethnic coefficient” – to be yet another political step seeking to strengthen the existing ethnic divisions that were at issue in the present case, and argued that they were in breach of Article 3 of Protocol No. 1 to the Convention, taken alone and/or in conjunction with Article 14, as well as Article 1 of Protocol No. 12. The Court is, however, of the view that the issues raised constitute a new and distinct complaint and thus cannot be regarded as a mere elaboration on the applicant’s original complaints that were referred to the Grand Chamber. Moreover, notice of an application relating specifically to the measures taken by the High Representative on the day of the elections was given to the respondent Government by the Fourth Section on 24 April 2023[13].

118. Having regard to the foregoing, the Court is of the view that this complaint did not form part of “the application as it has been declared admissible” by the Chamber, and therefore falls outside the scope of the case before the Grand Chamber (see, for instance, Bărbulescu v. Romania [GC], no. 61496/08, § 64, 5 September 2017; Rooman v. Belgium [GC], no. 18052/11, § 123, 31 January 2019; Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, §§ 102-12, 1 June 2021; L.B. v. Hungary [GC], no. 36345/16, §§ 70-72, 9 March 2023; and Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 75-86, 27 November 2023).

THE GOVERNMENT’S PRELIMINARY OBJECTIONS

Abuse of the right of individual application

The parties’ submissions before the Grand Chamber

(a) The Government

119. Referring to the Court’s case-law developed under Article 35 § 3 (a) of the Convention relating to abuse of the right of individual application, the Government argued that the applicant’s complaints should be declared inadmissible on that ground for a number of reasons.

120. The Government firstly contended that the applicant had made erroneous submissions regarding the constitutional and political structure of Bosnia and Herzegovina and had thus misled the Court in that respect.

121. Secondly, they claimed that two days prior to its delivery, the content of the Chamber judgment had been published on an online news portal. Later the same day, the applicant had participated in a television programme where he had stated, inter alia, that the Court had accepted his application and had found a violation of his rights, and he had also given a statement to another news portal on his interpretation of the judgment (see paragraph 27 above). In the Government’s view, the applicant, through such conduct, had not only taken part in a breach of the Court’s procedural rules regarding the publication of judgments (Rule 104A of the Rules of Court), but had also contributed to the undermining of the Court’s impartiality and objectivity and to its instrumentalisation in order to achieve political goals.

122. Thirdly, the Government argued that the applicant had attempted to obstruct the proper conduct of the proceedings before the Court by slanderously challenging the authority of the Government’s acting Agents to submit a request for the referral of the Chamber judgment to the Grand Chamber, an issue that had not been raised prior to the delivery of the judgment. The Government referred in that connection to the applicant’s submissions before the Court between September 2023 and January 2024, and their responses to those submissions (see paragraphs 80-92 above). They added that the applicant had also attacked the acting Government Agents domestically and had made virulent remarks about them. They argued that the applicant enjoyed a certain position of power as he was “under the direct protection of the Democratic Front[14] political party and its president, who [had] also [been] the [Chair] of the Presidency of Bosnia and Herzegovina” at the material time and whom the applicant served as a political adviser. Using that position, the applicant had allegedly made public statements directly targeting the acting Agents. The Government referred in particular to the applicant’s public statements accusing the acting Agents of supporting the commission of “silent ethnic cleansing” in Bosnia and Herzegovina, based on their position in the Chamber proceedings that the applicant was free to change his place of residence if he wished to vote for candidates from the other Entity (see paragraph 47 of the Chamber judgment). The acting Agents deemed this narrative to be very dangerous, given the specific history and context of Bosnia and Herzegovina, and claimed that they had since been subjected to threats on social media and elsewhere. The applicant had, moreover, publicly challenged the status of the acting Agents and threatened to bring criminal charges in the event of their undertaking any actions before the Court regarding the present case, in an attempt to intimidate them.

123. Fourthly, the Government drew the Court’s attention to the applicant’s letters of 19 September 2023 and 5 January 2024 containing what in their view were defamatory allegations regarding the Court’s judges (see paragraphs 30 and 9 above respectively), which they claimed was another manifestation of the applicant’s abuse of the right of individual application. At the hearing, the Government added that the applicant had extended his insults to the High Representative for Bosnia and Herzegovina, whom he had publicly accused of being a Nazi sympathiser.

124. Fifthly, the Government argued that the applicant’s deliberate attempts to conceal his ethnic affiliation as a Croat from the Court (see paragraphs 31-35 above) required the application to be declared inadmissible pursuant to Article 35 § 3 (a) of the Convention. The Government acknowledged that ethnic affiliation in Bosnia and Herzegovina was not to be taken as a fixed category, as it depended exclusively on one’s self-classification, thereby constituting a purely subjective criterion. The Constitutional Court had proclaimed in that connection that “the issue of affiliation with a people was included in the category of the subjective right of each individual, and that everyone had the right to express themselves as they felt, in terms of traditional, cultural, linguistic, family and other values, as well as moral ones, especially in the situation where the declaration of affiliation with a people changed from time to time”. It was therefore neither a legal obligation to declare one’s ethnic affiliation, nor were there any objective parameters for doing so. However, notwithstanding this flexibility of the notion of “ethnic affiliation” in Bosnia and Herzegovina, the applicant in the instant case had withheld key information from the Court regarding his ethnic affiliation, which had led the Chamber to find a violation in his favour based on the inaccurate understanding that he did not declare affiliation with any of the “constituent peoples”. Referring further to the applicant’s letter of 18 June 2024, in which he had enclosed a printout from the website of Sarajevo City Council that had been amended at his request (see paragraph 32 above), the Government contended that the applicant had, moreover, attempted to cover up information regarding his ethnic affiliation with the intention of misleading the Court. In the Government’s view, the lack of any mention in the applicant’s letter of 18 June 2024 of the fact that the ethnicity information on the relevant web page had been removed only a few days earlier at his own request was proof of his “ill-intentioned conduct”.

125. The Government lastly stressed that the present case did not concern any unfavourable or discriminatory treatment faced by the applicant as an individual voter, but was “about the abuse of the [right of] application in order to achieve political goals of a political party through the Court, rather than within the political arena and by political means”.

(b) The applicant

126. As noted in paragraph 29 above, the applicant denied having had any prior knowledge of the content of the Chamber judgment before its delivery, or having engaged in any conduct in breach of the Rules of Court regarding the publication of judgments. The applicant maintained that position at the hearing, at which he was expressly asked to comment on the Government’s allegations in that regard.

127. The applicant likewise denied any responsibility regarding the threats received by the Government’s acting Agents, and argued on the contrary that he was the one who was being “lynched” by representatives of ethnic political parties. He also denied the assertion that he was “protected” or was otherwise a member of any political party, and stated that the Chamber judgment in his favour had been supported by parties across the political spectrum.

128. Lastly, in relation to the Government’s assertions regarding his ethnic affiliation, the applicant denied having misled the Court about his ethnicity in any way. He contended that neither in his application form nor in his subsequent submissions had he “used [his] own ethnicity”, because he believed that such information could not and should not be used in “matters concerning [the] active voting right”. He therefore considered the information regarding his ethnicity to be irrelevant to his application and rejected the assertion that he had aimed to deceive and manipulate the Court.

(c) The third parties

129. The Croatian Government argued that the applicant’s intention in bringing his complaints before the Court was not primarily to defend his individual rights under the Convention, but to advance a political agenda aimed at restructuring Bosnia and Herzegovina’s constitutional framework by using the Court as a forum to challenge the Dayton Agreement. This, in the Croatian Government’s view, was evident from the applicant’s conduct throughout the proceedings and his political background as an adviser to the president of the Democratic Front, a political party that in their view actively sought to “abolish the concept of ‘constituent peoples’ in Bosnia and Herzegovina”. The intervening Government maintained that the applicant’s desire to drive political change in the respondent State through the Court was incompatible with the purpose of the Convention as a mechanism for addressing specific human rights violations, and therefore constituted an abuse of the right of individual application.

The Court’s assessment

130. The Court notes at the outset that the Government raised the issue of abuse of the right of individual application for the first time in their written submissions before the Grand Chamber. Given, however, that their allegations mainly relate to developments that took place following the adoption of the Chamber judgment, they are not estopped from raising that objection at this stage of the proceedings (see, for an example to the contrary, Konstantin Markin v. Russia [GC], no. 30078/06, § 96, ECHR 2012 (extracts)). The Court would, however, also emphasise that even the absence of an objection by the Government in this regard would not preclude it from examining the matter proprio motu. It is, indeed, for the Court itself and not the respondent Government to monitor compliance with the procedural obligations imposed by the Convention and the Rules of Court on the applicant party. The Court, therefore, has both the authority and the obligation to monitor such compliance at all stages of the proceedings, taking into account all relevant information, whether it happens to be provided by the parties themselves or is otherwise publicly available (see Zarubica and Others v. Serbia (dec.), no. 35044/07, § 30, 26 May 2015).

131. The Court refers in this connection to the general principles established in its case-law regarding abuse of the right of application, which have been recapitulated in Miroļubovs and Others v. Latvia (no. 798/05, §§ 62-66, 15 September 2009), and have since been reiterated and further developed in, inter alia, S.A.S. v. France ([GC], no. 43835/11, §§ 62-68, ECHR 2014 (extracts)), Gross v. Switzerland ([GC], no. 67810/10, §§ 28-37, ECHR 2014), Ferrara and Others v. Italy ((dec.) nos. 2394/22 and 18 others, §§ 37-68, 16 May 2023) and Mamić and Others v. Croatia ((dec.), nos. 21714/22 and 2 others, §§ 114-19, 9 July 2024). It reiterates in particular that any conduct on the part of an applicant which is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the smooth conduct of the proceedings before it can be considered an abuse of the right of application (see S.A.S. v. France, cited above, § 66; Miroļubovs and Others, cited above, §§ 62 and 65; and Koch v. Poland (dec.), no. 15005/11, 7 March 2017). The Court also emphasises, however, that the implementation of Article 35 § 3 (a) of the Convention in this context is an “exceptional procedural measure” and that the concept of “abuse” must be understood in its ordinary sense according to general legal theory – namely, the harmful exercise of a right by its holder for purposes other than those for which it is designed (see Miroļubovs and Others, cited above, § 62, and De Luca v. Italy, no. 43870/04, § 35, 24 September 2013).

132. Turning to the Government’s specific claims, the Court notes that in so far as the first two of those claims are concerned (regarding the applicant’s allegedly erroneous submissions on the structure of Bosnia and Herzegovina and his comments in the media on the Chamber judgment prior to its delivery – see paragraphs 120 and 121 above), there is insufficient evidence before it in support of the allegations made. Concerning in particular the media coverage of the Chamber judgment prior to its delivery, the information available to the Court does not enable it to conclude with any certainty that the applicant manifested an irresponsible and frivolous attitude towards the proceedings before the Court prior to the delivery of the Chamber judgment, such as to warrant rejecting his application as an abuse of the right of application.

133. However, as regards the claims concerning the allegedly slanderous and virulent expressions used by the applicant in his correspondence with the Court and elsewhere, the Court cannot but note with regret that the applicant has indeed made certain remarks and accusations relating to the Court’s judges and the other parties to the case which appear problematic.

134. In so far as its judges are concerned, the Court discerns no abusive conduct in the applicant’s letter of 19 September 2023, in which he informed the Court of claims made in the local media regarding the influence that certain political groups had allegedly sought to exert in the present case at the Chamber level (see paragraph 30 above). Preposterous as those unfounded claims are, there is no evidence of any personal involvement of the applicant in fabricating or spreading them; the applicant instead limited himself to expressing his “unease” in a neutral fashion regarding the circulation of such claims, and apparently sought to distance himself from them by stating that they could “neither be confirmed [n]or denied”.

135. More troublesome are the subsequent remarks made directly by the applicant in his letter of 5 January 2024, in which he requested the recusal of the Court’s then President (see paragraph 9 above). Obviously, parties to the proceedings have the right to request the recusal of a judge assigned to sit in their case for the reasons listed in paragraph 2 of Rule 28 of the Rules of Court – including where the independence or impartiality of a judge may legitimately be called into doubt (Rule 28 § 2 (e)) – and the Government have also exercised that right in the present case (see paragraph 10 above). However, allegations made in the context of a recusal request must remain within the bounds of “normal, civic and legitimate criticism” and must not involve unfounded claims and accusations that are manifestly contrary to the purpose of the right of individual application (see, mutatis mutandis, Miroļubovs and Others, cited above, §§ 64 and 65). Against this background, the applicant’s letter of 5 January 2024 contains very serious accusations challenging the integrity of the Court’s then President and, indirectly, of the members of the panel who decided on the referral of the present case to the Grand Chamber. The accusations made in that letter, which have been set out in detail in paragraph 9 above, clearly exceed the bounds of legitimate criticism and, in the absence of any proof, involve gratuitous attacks. As such, the applicant’s statements fall wholly short of the standards to be expected in the formulation of recusal requests, even making due allowance for legitimate frankness in criticism and the strong feeling that a personal situation may engender (see, mutatis mutandis, Timciuc v. Romania (dec.), no. 28999/03, § 152, 12 October 2010). What is more, the fact that those unsubstantiated accusations and offensive remarks directly targeted the Court’s then President, in the very performance of her duties as President, has special significance, as the President represents the Court as an institution (Rule 9 § 1 of the Rules of Court). By attacking the Court’s President so disdainfully, the applicant has shown disrespect to the very institution to which he applied for the protection of his rights (see Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 85, 16 July 2019).

136. The Court likewise considers that the applicant’s statements targeting the Government’s acting Agents and the High Representative for Bosnia and Herzegovina, as outlined in paragraphs 122 and 123 above, amounted to gratuitous personal attacks and malicious accusations that overstepped the bounds of admissible criticism. The Court does not see a problem as such with the applicant’s challenges to the legal status of the acting Agents, given that the authority of the acting Agents has been the subject of litigation before the domestic courts and has been contested by various high-level public officials or bodies both domestically and before the Court (see, for instance, paragraphs 85, 87, 90 and 93 above). However, to the extent that those challenges also involved public statements declaring an intention to bring criminal charges against the acting Agents in the event of their further involvement in the proceedings before the Court, they undeniably entailed intimidation, which can hardly be reconciled with the purpose of the right of individual application.

137. Lastly, the Court notes the Government’s assertion that the applicant withheld key information from it regarding his ethnic affiliation as Croat. The Court observes in this connection that while the applicant admitted to possessing Croatian nationality, he neither confirmed nor denied that he had been affiliated as “Croat” for the purposes of his previous service on Sarajevo City Council, as he believed that ethnicity should play no role in matters relating to the use of the active right to vote (see paragraphs 32, 34 and 128 above).

138. In the Court’s view, the non-disclosure by the applicant of his ethnic affiliation does not involve an element of abuse of the right of application under the Convention. However, the Court takes note of the evidence provided by the Government on 31 July 2024 regarding the applicant’s alleged attempt to mislead it as concerns the content of his profile page on the official website of Sarajevo City Council (see paragraph 33 above). It reiterates that under Article 35 § 3 (a) of the Convention, an application may be rejected as an abuse of the right of individual application if, among other reasons, it involves untrue facts, false declarations or otherwise misleading information, especially if such facts or information relate to the very core of the case and where the applicant’s intention to mislead the Court is established with sufficient certainty (see, among other authorities, Gross, cited above, § 28, and Marjanović v. Bosnia and Herzegovina (dec.), no. 53155/12, §§ 18 and 19, 8 July 2014, and the cases cited therein). In the present case, the applicant’s failure to inform the Court that he had himself requested the removal of the information relating to his ethnicity from the relevant web page before submitting it to the Court (as proof of the inaccuracy of the Government’s allegations) is to be considered deceptive regarding a matter of potential relevance to the case.

139. The Court notes from the foregoing that the applicant has clearly engaged in some highly reproachable conduct in the course of the present proceedings, and finds that he has abused the right of application within the meaning of Article 35 § 3 (a) of the Convention. In so far as the applicant has also been accused of seeking the furtherance of certain political goals through his application, as opposed to the protection of his individual rights (see paragraphs 125 and 129 above), those allegations will be addressed, to the extent relevant, as part of the Court’s examination of the applicant’s victim status (see paragraphs 196-216 below).

The applicant’s victim status and the applicability of the relevant provisions of the Convention and the Protocols thereto

140. The Court observes that the present application raises further important issues concerning its admissibility, which it will now address for the sake of completeness (see, mutatis mutandis, Zambrano v. France (dec.), no. 41994/21, § 39, 21 September 2021).

The parties’ submissions before the Grand Chamber

(a) The Government

141. The Government argued that the applicant’s complaints – whether relating to the House of Peoples or to the Presidency – entailed a rather abstract challenge to the electoral legislation of Bosnia and Herzegovina without any explanation of how he was individually affected and treated differently from people in analogous positions, and were therefore of an action popularis nature in essence. The Government argued in particular that beyond making blanket references, the applicant had failed to “properly particularise any specific violation” or to specify “what constitute[d] discrimination [relating] to his active right to vote, [or] in relation to whom he was ... discriminated against”. This lack of clarity in the applicant’s claims was compounded in their opinion by the fact that he had in fact declared himself as a Croat – that is, a member of a “constituent people” (see paragraph 31 above).

142. In the Government’s submission, the Chamber, without duly examining the constitutional and electoral system of Bosnia and Herzegovina, had assumed that the violations found in the Sejdić and Finci group of cases regarding the right to stand for election had also rendered the applicant a victim as a voter, thereby effectively equating the passive and active aspects of the right to vote. Referring particularly to the special procedure governing the composition of the House of Peoples, the Government argued that in respect of that legislative chamber, the applicant had no active right to vote whatsoever that fell under the protection of the Convention. The only active right to vote that he enjoyed concerned, in so far as relevant, his right to vote directly for the election of the delegates to the cantonal assembly at the Entity level, a right which the applicant was able to exercise under the same conditions as any adult citizen of Bosnia and Herzegovina, irrespective of his affiliation.

143. In the Government’s view, the applicant did not even have an “indirect” right to vote for the House of Peoples, given that the delegates of that House were not as such “elected” but rather “appointed” or “selected” by the Entity legislatures. They maintained that by the very nature of the electoral process, it was completely uncertain which candidates would receive a mandate in the cantonal assembly and would thus enjoy the right to elect delegates to the Federation House of Peoples, whose delegates would then go on to nominate delegates to the House of Peoples at the State level. In view of the many factors that influenced the outcome of this final leg of the selection process, finding a connection between the individual voters and the eventual delegates of the State House of Peoples could only be based on political and legal assumptions, and any link between them therefore remained highly remote.

144. The Government further challenged the following finding made in paragraph 54 of the Chamber judgment:

“[I]n order to indirectly participate in the election of Bosniac and Croat delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, the applicant must vote for persons who declare 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 elect Bosniac and Croat delegates to the House of Peoples of the Parliament of the Federation, who, in turn, elect Bosniac and Croat delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina.”

They argued that the Chamber’s finding represented an erroneous understanding of the electoral system in Bosnia and Herzegovina. During the cantonal assembly elections – which was the only instance where the applicant had a right to cast a direct vote in the context of the composition of the House of Peoples – the candidates’ affiliation to the “constituent peoples” or “Others” was not disclosed on the ballot and was therefore not formally known to the voters. Accordingly, when casting their vote, the voters were acting with a view to having their candidate elected to the cantonal assembly, not with the purpose that “this candidate may potentially run on an undefined list for elections of delegates that may, or not, participate in the elections/selections of the delegates to the House of Peoples of the Federation of [Bosnia and Herzegovina] or the [Bosnia and Herzegovina] House of Peoples”.

145. Referring to the dissenting opinion in the Chamber judgment, the Government argued that the Chamber seemed to have interpreted the applicant’s complaints as being that the legislative framework forced him to vote for someone “who [did] not represent him”, that he was “unable to vote for candidates of his own choice” and that, therefore, he could not “influence the decisions of the respective bodies” – whereas, in the Government’s view, it was completely unclear who the applicant actually wanted to vote for. They submitted that among the candidates in both Entities who ran for the cantonal elections, there were always candidates representing different political opinions, regardless of their affiliation, including the Democratic Front, for whose president the applicant worked as a political adviser. Accordingly, the applicant’s claim to victimhood on the grounds that he was forced to vote for someone who did not represent him or who was not a candidate of his choice was simply not true.

146. As regards specifically the elections to the collective Presidency, the Government acknowledged the applicant’s right to vote directly in those elections, yet stressed that there was no right under domestic law for the residents of one Entity to vote for candidates from the other Entity. Similarly, to the extent that the applicant had complained that he was deprived of the opportunity to vote for candidates not declaring themselves as being part of one of the “constituent peoples”, the Government pointed out that no voter in Bosnia and Herzegovina enjoyed such a right and that the impugned rules applied to all voters equally. Just as in the context of elections to the cantonal assemblies, there were candidates running for the Presidency with different political views. Candidates could not be categorised in a general and abstract manner solely on the basis of their ethnic declaration, as that declaration had no direct influence on the candidate’s political stance. The Government reiterated that, in any event, the applicant’s service as the political adviser to the Croat member of the Presidency for a second term clearly invalidated his claim that he was not truly represented in the collective Presidency.

147. Having regard to the very general nature of the claims put forward by the applicant, which challenged the electoral rules in the abstract as opposed to raising any tangible issues relating to the enjoyment of rights protected under the Convention, the Government contended that the applicant could not be considered to have victim status in relation to his discrimination complaints under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, or under Article 1 of Protocol No. 12. Nor were those provisions applicable ratione materiae to the applicant’s abstract claims which did not fall within their scope. The Government argued on the same basis that, given the presentation of his arguments in an abstract and incoherent manner, the application submitted by the applicant had also failed to meet the requirements of Rule 47 §§ 1 (e) and (f) of the Rules of Court.

(b) The applicant

148. The applicant argued that he was not able to express his opinion freely and fully in the elections to the House of Peoples or the Presidency owing to the ethnic and territorial limitations imposed by the Constitution and the electoral legislation in respect of the elections in question. For that reason, he considered himself to be a “victim of the political system”, in violation of his rights under Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, and under Article 1 of Protocol No. 12. He relied in that connection on the Court’s settled case-law recognising the victim status of persons who did not face an individual enforcement measure but who belonged to a group that was at risk of being directly affected by particular legislation. He added that he was “directly affected” by the relevant provisions of the Constitution, which he had no opportunity to change, and stated that this was his “basic inspiration for submitting the [present] application”.

149. While the applicant did not put forward any further arguments in relation to his victim status regarding the alleged discrimination against him in the context of the elections to the Presidency of Bosnia and Herzegovina, in his memorial before the Grand Chamber he elaborated on the reasons why he was “directly affected” by the election system pertaining to the House of Peoples of Bosnia and Herzegovina.

150. Firstly, he maintained that one’s ethnicity could not be a “decisive and eliminative” factor determining one’s status in the electoral system, whether it involved the active or the passive aspect of the right to vote. He contended that all citizens should participate equally in the appointment of delegates to the House of Peoples, which should also represent all citizens equally, whereas currently only the “constituent peoples” enjoyed representation and the remaining parts of the population were treated like “outcasts”. He firmly rejected “any attempt to confine the political ideas [he] endorse[d] ... solely to ethnic affiliation” and argued that ethnicity should not play any role in the use of active voting rights.

151. In that connection, while the applicant pointed to the non‑representation of the “Others” at State level, he stressed that the creation of an “Others” quota in the House of Peoples, as the applicants in Sejdić and Finci v. Bosnia and Herzegovina ([GC], nos. 27996/06 and 34836/06, ECHR 2009) appeared to have demanded, would not provide an adequate means of harmonising the impugned constitutional provisions with the Convention, but would only deepen further the existing ethnic divisions. In his view, the only possible solution was to transition from a system of ethnic-parity distribution of political power to one of civil political representation based on the proportional distribution of political power across the entire territory of Bosnia and Herzegovina. He submitted that this could be achieved in one of three ways: (i) by revoking the “ethnic veto” power of the House of Peoples and enabling voters to elect the delegates without any ethnic or territorial restrictions; (ii) by abolishing the House of Peoples and transferring the protection of the collective rights of the “constituent peoples” to the House of Representatives as the only legislative body with electoral legitimacy; or (iii) by revoking the legislative powers of the House of Peoples and transforming it into a body for the exclusive protection of the collective rights arising from ethnic identities, such as language, culture, religion and tradition. The applicant requested “the protection of the active voting rights in such a way that every citizen of Bosnia and Herzegovina [is] given the right to vote freely and without ethnic restrictions ..., which is the proper way for implementation of full and complete democracy in the country, which currently is undermined by [the] ethnically based political-system”. He further explained at the hearing that through his application, he “wanted to achieve the restoration of full democracy in Bosnia and Herzegovina”.

152. Secondly, the applicant argued that by virtue of the design of the electoral system, he was forced to choose between ethnic Bosniac or Croat candidates in the cantonal elections, if he wanted to have any hypothetical influence on the ultimate composition of the House of Peoples at the State level. He was therefore prevented from expressing his opinion freely, as his vote should be guided by a candidate’s programme or vision for society, instead of ethnic considerations. This was compounded by the fact that when casting his vote at the cantonal level, he had to guess or assume a candidate’s ethnicity, since the ethnicities of the candidates at that level were not disclosed.

153. The applicant thirdly emphasised that ultimately, he had absolutely no influence on or connection with the procedure for the “appointment” of delegates to the House of Peoples at the State level, and was therefore not adequately represented in that chamber. He explained that in the Federation, where he resided, the composition of the House of Peoples of Bosnia and Herzegovina was a three-level process consisting of, respectively, the election of delegates to the cantonal assembly, the (indirect) election of delegates to the House of Peoples of the Federation of Bosnia and Herzegovina, and the appointment of the Bosniac and Croat delegates to the House of Peoples of Bosnia and Herzegovina by the Bosniac and Croat caucuses in the House of Peoples of the Federation (see paragraphs 39 and 40 above for further details). By contrast, in the Republika Srpska, a two-level election system was in place, whereby citizens voted directly for the members of the National Assembly (first level), which in turn “indirectly elected” the five ethnic Serb delegates to the State House of Peoples (second level). The applicant argued that the system in the Republika Srpska better preserved the connection between direct and indirect elections, although he also acknowledged that the voters resident in that Entity were likewise limited in the expression of their will through their votes by reason of the ethnic composition of the State House of Peoples.

154. Lastly, in response to the allegation by the Government that he lacked victim status by reason of his affiliation as a Croat, the applicant neither confirmed nor denied having been thus affiliated for the purposes of his service on the Sarajevo City Council, but contended that his ethnicity – which was an exclusively personal matter – was of no relevance to the present case (see paragraphs 32, 34 and 128 above).

155. During the proceedings before the Grand Chamber, the applicant was asked – both in writing and subsequently at the hearing – to clarify the comparator group(s) in analogous or relevantly similar situations to him for the purposes of his discrimination complaints relating to both the House of Peoples and the Presidency. The applicant responded that in respect of both his complaints, he should be compared to voters residing in the Entity of the Republika Srpska, from whom he was treated differently by reason of his residence. He maintained in that regard that as a resident of the Federation, he was denied the right to vote in half of his country, as he was not able to take part in the elections held in the Republika Srpska, which meant that he was also unable to influence the selection of the Serb candidates for the House of Peoples or the Presidency – although he admitted that the voters in the Republika Srpska were similarly limited in only being able to vote for ethnic Serbs. He stressed that it was not necessarily his intention to vote for a candidate affiliated as “Serb” in the presidential elections, in which he was able to cast a direct vote; however, he wished to be able to vote for any candidate, regardless of the Entity in which the candidate was standing. The applicant explained that the motive for his complaint was that “all citizens of Bosnia and Herzegovina ... [should] be able to choose anyone from the electoral list of candidates for the Presidency of Bosnia and Herzegovina, regardless of their ethnicity and place of residence”. The applicant emphasised that the Presidency was a collective authority that made policies and took decisions that affected all citizens of Bosnia and Herzegovina. For that reason, and in the interests of the protection of democracy, the applicant contended that Bosnia and Herzegovina should be a single electoral unit where all citizens had the same opportunity to elect all members of the Presidency on the sole basis of their political programmes, without ethnic and territorial restrictions. He further pointed to the alleged difference of treatment that occurred as a result of the three-level legislative election system in place in the Federation, which he claimed completely denied the voters’ connection to the selection process at the third (State) level, unlike the two-level system in the Republika Srpska, which better preserved that connection. The applicant maintained, in view of the foregoing, that he faced discrimination on the basis of his place of residence.

156. In response to another question put to him at the hearing as to why he would wish to vote for candidates from the Republika Srpska, the applicant stated that given the efforts of the “political elite” in that Entity to bring about the dissolution of Bosnia and Herzegovina, he would want to have the option to vote for a Serb candidate who opposed dissolution, for the sake of preserving the unity of his country.

157. In the meantime, in a letter that he sent to the Court on 18 October 2024, the applicant made the following statement (emphasis added):

“The essence of application [no.] 43651/22 can be said in one sentence that the applicant, like all other residents of Bosnia and Herzegovina, cannot vote for all candidates for the Presidency of Bosnia and Herzegovina and cannot vote for any delegates to the House of Peoples of Bosnia and Herzegovina (upper house) at all, due to disputed provisions [of] Articles V and IV § 1 of the Constitution of Bosnia and Herzegovina, which is in contradiction with Article 14 of the Convention in connection with Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12 ...”.

The applicant further maintained in that letter that all voters, despite their ethnicity, should have the opportunity to freely express their opinion and reiterated in that connection that information regarding his ethnicity was “completely irrelevant” for the purposes of the present application.

(c) The third parties

158. The Croatian Government contended that the present application constituted an actio popularis, given mainly that the applicant’s complaints were not based on any specific infringement of his rights, but instead constituted a fundamental challenge to the electoral system itself. In that connection, they pointed to the abstract nature of the applicant’s claims, which lacked any indication as to how the contested constitutional provisions directly affected or targeted him on the basis of his individual characteristics. They further contended that the Chamber’s approach to the victim issue had been overly permissive, as it potentially allowed any voter who disagreed with the electoral system in Bosnia and Herzegovina to claim victim status.

159. Following on from their arguments set out in paragraph 129 above, the Croatian Government further maintained that allowing applicants to use the Court as a channel for political reform could open the door for countless applications from individuals who wished to influence political reform in their countries and would “put the Court [at] risk of taking a quasi-legislative role that exceeds its original mandate”.

160. As regards, specifically, the applicant’s discrimination claim based on his place of residence, by reason of his inability to participate in the election of delegates from the Republika Srpska, the intervening Government argued that such a practice was common in Europe, both in power-sharing democracies – seeking to accommodate various ethnic, national, linguistic or religious groups – and in unitary States. In that connection, they pointed to the fact that Croatia was made up of ten constituencies, and voters from one constituency were not allowed to vote for candidates from another one. By way of another example, they referred to the procedure for election of senators to the Belgian Senate, whereby voters from Flanders could not (indirectly) elect senators from Wallonia, and vice versa. Neither the territorial organisation of the Belgian State into separate language regions, nor the inability of voters to vote across the regions had been considered by the Court to be incompatible with the Convention (the Croatian Government cited the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, Series A no. 6, and Mathieu‑Mohin and Clerfayt v. Belgium, 2 March 1987, Series A no. 113). The Court had in fact affirmed in Mathieu-Mohin and Clerfayt (cited above) that voters did not have a specific right to elect candidates of their choice – that is, candidates reflecting their identity and views.

161. The other third-party intervener, namely the High Representative for Bosnia and Herzegovina, did not specifically comment on the Court’s jurisdiction to deal with the applicant’s complaints. The High Representative emphasised, however, that the present case was to be distinguished from the Sejdić and Finci group of cases, as it concerned a legally and conceptually different issue – that is, the alleged right of a voter to select from an unrestricted range of candidates, as opposed to an individual’s right to stand for election as candidate. The High Representative argued in that regard that all voters resident in the Federation, regardless of their ethnicity, had only a “double indirect right to vote” in respect of the House of Peoples; there was therefore no direct link between voters and delegates to the House of Peoples, and voters could not predict how their vote (in cantonal elections) might indirectly affect the composition of that second legislative chamber. The ethnic affiliation of voters was in any event not relevant in the electoral process, and did not affect who they could vote for.

The Court’s assessment

162. The Court notes that in the Grand Chamber proceedings, the Government argued that the applicant could neither be considered a “victim” within the meaning of Article 34 of the Convention, nor did the matters that he complained of relate to the protection of an individual right falling within the scope of the Convention and the Protocols thereto.

163. The Court considers at the outset that there is no need to examine whether the Government are estopped from raising those objections for the first time before the Grand Chamber, since it finds in any event that they concern matters which go to its jurisdiction (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016). It reiterates that in any case brought before it, the Court must satisfy itself that it has jurisdiction and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings, of its own motion where necessary (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 201, ECHR 2014 (extracts)).

164. The Court further notes that while the Government’s objections relate to two distinct admissibility issues, they are closely connected in the specific context of the present case. It considers that those objections essentially converge on the same underlying assertion that the applicant’s complaints constitute an abstract challenge to the constitutional and electoral system of an actio popularis nature, which does not on the present facts relate to the protection of any individual rights under the Convention or the Protocols thereto (see paragraph 147 above). That being so, the Court considers that this discussion pertains primarily to the question of “victim status” under Article 34 of the Convention – which seeks, inter alia, to exclude from the Convention system actio popularis claims entailing an abstract challenge to the domestic legislation – and will therefore examine the Government’s objections mainly from that perspective. The material scope of the rights in question (that is, Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12) will nevertheless inform, where relevant, its determination as to whether the applicant indeed sought protection of his individual rights under the Convention or the Protocols thereto in his capacity as a “victim” (within the meaning of Article 34), as opposed to advancing general criticism of the electoral legislation.

165. In so far as the Government also contested the compliance of the present application with the requirements of Rule 47 §§ 1 (e) and (f) of the Rules of Court by reason of the abstract and incoherent nature of the applicant’s claims (see paragraph 147 above), those concerns will likewise be taken into consideration as part of the Court’s examination below.

(a) General principles

(i) Victim status

(α) Recapitulation of the relevant general principles

166. The general principles concerning victim status under Article 34 of the Convention have been recently summarised by the Grand Chamber in Verein KlimaSeniorinnen Schweiz and Others (cited above, §§ 458-472; see also Burden v. the United Kingdom [GC], no. 13378/05, §§ 33 and 34, ECHR 2008).

167. The Court reiterates in this connection that the Convention does not provide for the institution of an actio popularis. The Court’s task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, for instance, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, with further references). The Convention does not permit individuals or groups of individuals to complain about a provision of domestic law, a domestic practice or public acts simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 50-51, ECHR 2012, and Communauté genevoise d’action syndicale (CGAS), cited above, § 106, with further references).

168. It therefore follows that, in order to rely on Article 34 of the Convention, an applicant must be able to claim to be a “victim” of a violation of the rights set forth in the Convention or the Protocols thereto and must be able to show that he or she was “directly affected” by the measure complained of (see Lambert and Others v. France [GC], no. 46043/14, § 89, ECHR 2015 (extracts)). This implies that the applicant has been personally and actually affected by the alleged violation of the Convention, which is normally the result of a measure applying the relevant law or a decision allegedly in breach of the Convention or, in some instances, of the acts or omissions of State authorities or private parties allegedly infringing the applicant’s Convention rights (see, for instance, Aksu, cited above, § 51; see also Karner v. Austria, no. 40016/98, §§ 24-25, ECHR 2003-IX, and Berger-Krall and Others v. Slovenia, no. 14717/04, § 258, 12 June 2014). However, this does not necessarily mean that the applicant needs to have been personally targeted by the act or omission complained of. What is important is that the impugned conduct personally and directly affected him or her (see, for instance, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 72, ECHR 2005-IX, and Aksu, cited above, §§ 51-54). Moreover, the mere fact that others might also have been potentially affected by the measures complained of is not an element that would qualify an application as being an actio popularis (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 66, 13 October 2020).

169. It is clear from the Court’s case-law that an applicant may also claim to be a potential victim of a violation of the Convention or the Protocols thereto (see, for instance, Verein KlimaSeniorinnen Schweiz and Others, cited above, §§ 469-71 and the cases cited therein). The Court may accept the existence of potential victim status where applicants contend that a law violates their rights, in the absence of an individual measure of implementation, if they belong to a class of people who risk being directly affected by the legislation, or if they are required either to modify their conduct or risk being prosecuted (see Burden, cited above, § 34; Sejdić and Finci, cited above, § 28; and Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

170. However, in order for an applicant to be able to claim to be a victim in such circumstances, he or she must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur; mere suspicion or conjecture is insufficient in this respect (see Asselbourg and Others v. Luxembourg (dec.), no. 29121/95, ECHR 1999-VI, and Verein KlimaSeniorinnen Schweiz and Others, cited above, § 470). Thus, in Burden (cited above, §§ 33-35), the applicants – cohabiting sisters who complained of being subjected to different treatment from married couples or civil partners as regards inheritance tax – were found to be directly affected by the relevant legislation as they had established that there was a real risk that, in the not too distant future, one of them would be required to pay substantial inheritance tax on the property inherited from her sister. Accordingly, they could claim to be victims of the alleged discriminatory treatment. By contrast, in Willis v. the United Kingdom (no. 36042/97, ECHR 2002-IV), the risk to the applicant of being refused a widow’s pension on grounds of sex at a future date was found to be hypothetical, since it was not certain that the applicant would otherwise fulfil the statutory conditions for the payment of the benefit at the date when a woman in his position would become entitled.

171. In any event, whether the victim is direct, indirect or potential, there must be a link between the applicant and the harm which he or she claims to have sustained as a result of the alleged violation (see Verein KlimaSeniorinnen Schweiz and Others, cited above, § 463, and Mansur Yalçın and Others v. Turkey, no. 21163/11, § 40, 16 September 2014).

(β) Overview of cases where the Court has addressed the issue of victim status in respect of alleged violations of the Convention or the Protocols thereto in the electoral context

172. A review of the case-law of the Convention institutions reveals that the issue of victim status has been addressed by the former European Commission of Human Rights (“the Commission”) and the Court in respect of alleged violations of the Convention or the Protocols thereto in the electoral context, including in some cases involving allegations of discrimination.

173. The Court refers in this connection to the Commission’s admissibility decision in Moureaux and Others v. Belgium (no. 9267/81, Commission decision of 12 July 1983, Decisions and Reports (DR) 33, p. 97), which is one of the earliest cases where the issue of victim status was specifically addressed by the Convention institutions in relation to the enjoyment of electoral rights. The applicants in Moureaux and Others, all French-speaking Belgian nationals, were members of the Belgian House of Representatives or the Belgian Senate. Acting in their dual capacity as voters and elected representatives, the applicants complained about the domestic legal framework governing arrangements for the membership of councils and executive bodies of the communities and regions in Belgium, which allegedly deprived the French-speaking inhabitants of Flanders and Brussels such as themselves – who were in the position of a linguistic minority – of their right to choose their “regional legislature”, in violation of Article 3 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. Finding that the applicants were “directly affected by the situation of which they complain[ed]”, the Commission held that they could validly claim to be victims of a violation of the rights that they relied on (see also Mathieu-Mohin and Clerfayt, cited above, §§ 57-59, where the Court went on to find that the contested legal framework, which “fit[ted] into a general institutional system of the Belgian State, based on the territoriality principle”, did not violate Article 3 of Protocol No. 1, taken alone or in conjunction with Article 14, on the facts of that case).

174. Referring directly to the Commission’s admissibility decision in Moureaux and Others (cited above), the Court recognised the victim status of the applicants in Yumak and Sadak v. Turkey ([GC], no. 10226/03, § 73, ECHR 2008). The case concerned the imposition of an electoral threshold of 10% in parliamentary elections in Türkiye, which the applicants – who had stood unsuccessfully in the elections – claimed had interfered with the free expression of the opinion of the people in the choice of the legislature. While the Government argued that the applicants’ complaints amounted to an action popularis as they related to Türkiye’s constitutional structure, the Court dismissed that objection. In particular, the Court affirmed that it did not have jurisdiction to examine a domestic electoral law in the abstract, but found on the facts that the applicants, who were not able to obtain seats in Parliament because of the national threshold, had been “affected directly and immediately by the impugned threshold” (ibid., § 73).

175. The case of Dimitras and Others v. Greece ((dec.), no. 59573/09, § 31, 4 July 2017) mainly concerned a ban on disseminating opinion polls prior to elections that had allegedly contravened the applicants’ right to freedom to receive information as voters and thus breached, inter alia, Article 14 of the Convention and Article 3 of Protocol No. 1. The Court held in that case that in order for the applicants to be regarded as having suffered directly from the effects of the law at issue, the mere existence of legislation which affected every Greek citizen with a right to vote was not sufficient; there had to be “a direct link between the law in question and the obligations or effects weighing on the persons concerned”, which was lacking in that case. A similar finding was made in Communist Party of Russia and Others v. Russia (no. 29400/05, § 135, 19 June 2012), where the applicants – opposition parties and candidates – complained, inter alia, that the alleged instability of the electoral legislation had disadvantaged smaller political parties. Noting that the applicants had failed to demonstrate how the changes to the legislation had directly affected them or the parties they represented, the Court held that their complaint appeared to be an actio popularis.

176. The question of actio popularis in the electoral context was further explored by the Court in Shortall and Others v. Ireland (no. 50272/18, 19 October 2021), which related, inter alia, to the religious language contained in the declaration to be made by the President of Ireland upon being elected and entering office. The Government argued that the applicants’ aspirations to the Presidency did not distinguish them from the very many other persons eligible for that office and that their application was therefore an actio popularis (ibid., §§ 32 and 33). When addressing the Government’s objection, the Court firstly stated that in certain cases, the class of persons at real risk of being directly affected by an impugned measure could be very broad, thereby affirming that the number of potential victims was not as such a bar to victim status under the Convention. It also noted, however, that while many Irish citizens might, in principle, object to the religious declaration required of the elected President in order to take office, very few had any intention to run for that office and even fewer would have any possibility of being elected (ibid., § 53). Therefore, in order for the applicants in that case to be considered “victims” within the meaning of Article 34 of the Convention, they would have had to provide the Court with reasonable and convincing evidence that they had a real intention of seeking the office of President and that they had some realistic prospects in that regard, which the applicants had failed to do (ibid., §§ 53-61). In the Court’s view, the applicants were seeking to have their victim status accepted, “not in the context of a clear, immediate and compelling factual matrix which would allow them to adduce reasonable and convincing evidence that they are at a real risk of being adversely affected by the impugned measure, but rather as a hypothetical outcome”. The Court referred, by way of comparison, to Tănase (cited above, § 108), where, unlike in Shortall and Others (cited above), the applicant had provided credible evidence that he intended to run in the elections and that his campaign would be supported by his party.

177. In determining whether an applicant contesting an electoral rule or process enjoys victim status, the Court will also take into consideration whether the so-called “active” (right to vote) or “passive” (right to stand for election) electoral rights are at stake. In Russian Conservative Party of Entrepreneurs and Others v. Russia (nos. 55066/00 and 55638/00, §§ 77 and 78, 11 January 2007), the Court clarified that a domestic law or practice which resulted in the finding of a violation in respect of the exercise by a political party or candidate of the right to stand for election did not necessarily entail the same outcome in respect of voters who intended to cast their ballots for the party or candidate concerned. The case related, inter alia, to the alleged breach of the third applicant’s active right to vote on account of the disqualification of the first and second applicants from standing in elections. The Court reiterated, albeit as part of its examination on the merits, that an individual applicant had to be able to claim to be actually affected by the measure of which he or she complained and that Article 34 could not be used as a basis for an action in the nature of an actio popularis, whereas the third applicant had failed to furnish any information about the way in which he had exercised his right to vote or whether he had exercised it at all. The Court further stated, on a more general level, that accepting the claim of a frustrated voting intention as an indication of an interference with the right to vote would confer standing on a virtually unlimited number of individuals. (ibid., §§ 77 and 78). This finding was repeated in Yabloko Russian United Democratic Party and Others v. Russia (no. 18860/07, §§ 86-92, 8 November 2016), in the context of similar complaints brought under Article 3 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention.

178. In Riza and Others v. Bulgaria (nos. 48555/10 and 48377/10, §§ 114 and 145-52, 13 October 2015), where the annulment of the election results in various polling stations set up outside the country during the 2009 general elections was contested by both the voters who cast their votes in those stations and the political actors concerned, the Court recognised victim status in respect of all applicants – whether invoking their “active” or “passive” electoral rights – as they were all directly impacted by the annulment.

179. The Court has also had occasion to consider the issue of victim status in a number of cases relating to the electoral system in Bosnia and Herzegovina, including in Sejdić and Finci (cited above; see also paragraph 16 above). In Sejdić and Finci, the question of victim status centred on the discussion of whether the applicants were sufficiently engaged in public life to an extent that would enable them to claim to be victims of discrimination as a result of the rules on eligibility for election to the House of Peoples and the Presidency of Bosnia and Herzegovina. The Court held that, given the applicants’ active participation in public life, it would be entirely coherent that they would in fact consider running for the House of Peoples or the Presidency. It therefore found that the applicants were members of a class of people who risked being directly affected by the impugned legislation and thus acknowledged their victim status (ibid., § 29). A similar finding was made in the case of Baralija v. Bosnia and Herzegovina (no. 30100/18, 29 October 2019), which concerned the applicant’s inability to vote or stand in local elections in the city of Mostar by reason of the delay in the implementation of the Constitutional Court’s decision declaring certain parts of the Election Act 2001 and the Statute of the City of Mostar unconstitutional, with the result that no local elections were held for an extended period of time. The applicant complained, under Article 1 of Protocol No. 12, that her inability to vote or stand in local elections in the city of Mostar amounted to discrimination on the grounds of her place of residence. Given, once again, the applicant’s active participation in public life, the Court acknowledged that she would consider both voting and running for election to the local city council and held, accordingly, that she could claim to be a victim of the alleged discrimination (ibid., § 34).

180. The Court addressed a slightly different situation in Pilav v. Bosnia and Herzegovina (no. 41939/07, 9 June 2016), which concerned the legal impossibility for the applicant – a Bosniac resident in the Republika Srpska – to stand for election to the Presidency of Bosnia and Herzegovina or to vote for a member of his own community in elections to that office from the Republika Srpska. The Court noted that the applicant Mr Pilav belonged to one of the “constituent peoples” and, therefore, unlike the applicants in Sejdić and Finci, he was theoretically eligible to stand for election to the Presidency. It also noted, however, that in reality, the applicant would not be able to use that right as long as he lived in the Republika Srpska (see Pilav, cited above, § 43). The Court further emphasised that although the residence requirement in question applied to all the “constituent peoples” equally, the gist of the applicant’s complaint was that he was treated differently from Serbs living in the Republika Srpska – who could, unlike him, stand for election to the Presidency or vote for a member of their own community in elections to that office – and therefore recognised the applicant’s victim status, in respect of both his “active” and “passive” voting rights (ibid., §§ 46, 48 and 49).

(ii) Applicability of the relevant provisions of the Convention and the Protocols thereto (compatibility ratione materiae)

181. As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall “within the ambit” of one or more of the latter (see, among many other authorities, Sejdić and Finci, cited above, § 39, and the cases cited therein).

182. Article 1 of Protocol No. 12, on the other hand, introduces a general prohibition of discrimination (ibid., § 53). In this connection, Article 1 of Protocol No. 12 extends the scope of protection not only to “any right set forth by law”, as the text of paragraph 1 of that Article might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010, and Ádám and Others, cited above, § 33). According to the Explanatory Report to Protocol No. 12, the scope of protection of its Article 1 concerns, in particular, cases where a person is discriminated against:

“i. in the enjoyment of any right specifically granted to an individual under national law;

ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;

iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);

iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”

(b) Application of those principles to the present case

(i) Preliminary remarks regarding the nature and content of the applicant’s discrimination complaints

183. According to the Court’s established case-law, the international system of protection established by the Convention functions on the basis of applications alleging violations of the Convention, and therefore does not enable the Court to either take up a matter, irrespective of the manner in which it came to its knowledge, or even, in the context of pending proceedings, to deal with facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 108, 20 March 2018). The scope of a case “referred to” it in the exercise of the right of individual application is therefore determined by the applicant’s complaint or “claim” – which is the term used in Article 34 (ibid., §§ 109 and 126, and Grosam, cited above, §§ 51 and 88).

184. The same considerations necessarily apply in the assessment of an applicant’s victim status under Article 34 of the Convention, where the Court is bound by the specific complaint(s) raised by the applicant. It is on the basis of the factual allegations made in that complaint, seen in the light of the legal arguments adduced, that the Court will determine whether the applicant was “directly affected” by the law or measure in question, without basing its decision on allegations not covered by the complaint. The Court stresses in this connection that it is not sufficient that a violation of the Convention is “evident” from the facts of the case or the applicant’s submissions; rather, the applicant must complain that a certain act or omission entailed a violation of the rights set forth in the Convention or the Protocols thereto, in a manner which leaves no doubt to the Court as to whether a certain complaint was raised or not (see Grosam, cited above, § 90; see also Petrov and X v. Russia, no. 23608/16, § 85, 23 October 2018), and must establish their victim status in relation to that specific complaint. This means that the Court has no power to substitute itself for the applicant and formulate complaints simply on the basis of the arguments and facts advanced (see Grosam, cited above, § 91).

185. In the specific context of discrimination complaints, the nature of the violation alleged – whether under Article 14 of the Convention or Article 1 of Protocol No. 12 – requires that the complaint should provide at least an indication of the person or group of persons in comparison with whom the applicant claims that he or she was treated differently, as well as of the ground of the distinction that was allegedly applied (see Fábián v. Hungary [GC], no. 78117/13, § 96, 5 September 2017). Such information is essential to the Court’s assessment not only as to the merits of the complaint, but also, and in particular, as to whether the applicant can be considered to be a victim of the alleged violation within the meaning of Article 34, since the outcome may vary depending on the comparator group or groups and/or the ground or grounds of distinction at issue (ibid.).

186. It therefore follows that, before proceeding with the assessment of the applicant’s victim status, the Court must establish the exact nature and content of the applicant’s discrimination complaints relating to the House of Peoples and the Presidency of Bosnia and Herzegovina, to the extent referred to the Grand Chamber (see paragraphs 115-118 above).

187. In his application form submitted to the Court in the present case, the applicant complained under Article 14 of the Convention, taken in conjunction with Article 3 of Protocol No. 1, that he had been discriminated against in the exercise of his (active) right to vote, as he had been deprived of the opportunity to vote for candidates who would best represent his political views, by reason of a combination of ethnic and territorial requirements that governed the elections to the House of Peoples. He alleged a violation of Article 1 of Protocol No. 12 in respect of the elections to the Presidency for the same reasons. The applicant’s discrimination complaints in relation to both State bodies – to the extent that they fall within the scope of the case before the Grand Chamber as defined in paragraphs 115 and 116 above – were based on the following grounds:

(i) the composition of the House of Peoples and the Presidency exclusively of the “constituent peoples”;

(ii) his inability, as a resident of the Federation, to register to vote on the territory of the Republika Srpska, and his resulting inability to influence the elections to the House of Peoples and the Presidency from that Entity;

(iii) his inability to influence the election of delegates to the House of Peoples from the Federation, where he resided, in view of the ethnic and territorial limitations in place, which resulted in the election of those delegates by only the Bosniac and Croat caucuses in the House of Peoples of the Parliament of the Federation from among their respective “constituent people” alone; and

(iv) the limitation of his vote in presidential elections to either Bosniac or Croat candidates.

Claiming that Bosnia and Herzegovina was governed on the basis of “ethnocracy” and segregation, the applicant requested to be allowed to vote for “any citizen of Bosnia and Herzegovina standing for election to the Presidency ... regardless of their ethnic or any other affiliation, and for all delegates [in the House of Peoples] of the Parliamentary Assembly of Bosnia and Herzegovina”.

188. However, as evidence of the “different treatment” of people in “analogous situations”, the applicant pointed solely to the confinement of his right to vote to a specific territory, which in his view resulted in unequal treatment of citizens based on their place of residence. He added that this restriction applied “uniformly to all citizens of Bosnia and Herzegovina”.

189. In his submissions before the Chamber, the applicant largely reiterated the same arguments. However, in respect of his complaints relating to the House of Peoples, he also relied, in a general manner, on Article 1 of Protocol No. 12, in addition to Article 14 of the Convention in conjunction with Article 3 of Protocol No. 1 (see paragraphs 3 and 77 above).

190. In view of the lack of precision in his complaints as to the parameters required to define the scope of the discrimination issue before the Court as noted in paragraph 185 above, the applicant was asked by the Grand Chamber to clarify which other persons in analogous or relevantly similar situations he should be compared with for the purposes of his discrimination complaints relating to the House of Peoples and the Presidency.

191. As noted in paragraph 155 above, the applicant responded that the comparator group from which he was treated differently consisted of the voters resident in the Republika Srpska, in respect of both his complaints. He provided the same response when that question was put to him again at the hearing (see paragraph 155 above). The applicant reiterated in that connection that because of his place of residence in the Federation, he could in no way participate in the appointment of the five ethnic Serb delegates to the State House of Peoples and the election of the Serb member of the collective Presidency from the Republika Srpska. He was therefore denied the right to vote in half of his country, which, in his opinion, amounted to discrimination on the basis of his place of residence. He also admitted, however, that in view of the ethnic and territorial limitations entrenched in the Constitution, the voters in the Republika Srpska were similarly limited in their votes (see paragraphs 153 and 155 above). He further emphasised in his written submissions before the Grand Chamber that he did not necessarily intend to vote for candidates who were ethnic Serbs in presidential elections, but advocated that “all citizens of Bosnia and Herzegovina, within their active voting right, must be able to choose anyone from the electoral list of candidates for the Presidency ..., regardless of their ethnicity and place of residence” (see paragraph 155 above). However, when subsequently asked at the hearing to explain why he wished to vote for candidates from the Republika Srpska, he provided a different motive (see paragraph 156 above).

192. In the meantime, in a letter submitted to the Court on 18 October 2024, the applicant stressed that the essence of his application concerned his inability to vote for all candidates for the Presidency, and his inability to vote for any delegates to the House of Peoples, “like all other residents of Bosnia and Herzegovina”, without referring to the alleged difference in treatment between him and voters resident in the Republika Srpska (see paragraph 157 above). In the same letter, he reiterated that his ethnicity was “completely irrelevant” to his application.

193. The Court observes from the foregoing that the applicant’s complaints still lack the requisite precision and consistency. They flit between different aspects of the electoral system which he deems problematic, with a constantly fluctuating emphasis on the matter underlying his discrimination complaint. The applicant claimed on the one hand that the relevant constitutional provisions entailed discrimination on both an ethnic and a territorial basis, yet stressed on the other hand that his ethnic affiliation was of no relevance to his case and failed to explain how he was disadvantaged by reason of his ethnic affiliation. At the same time, he argued that his discrimination complaint concerned the difference in treatment between him and all voters resident in the Republika Srpska based on residence, apparently discarding the “ethnic” component of his discrimination claim that had been addressed prominently at the Chamber level. More significantly, he argued ultimately that the ethnic and territorial requirements of which he complained limited the free choice of all voters in the composition of the House of Peoples and the Presidency in both Entities – an argument that defies the very logic of a complaint of discrimination, which by definition requires a difference in treatment between comparable groups.

194. The Court reiterates that it is not its duty to substitute itself for the applicant and surmise possible complaints from among an array of different arguments and facts advanced that raise potential Convention issues (see paragraph 184 above). This general rule becomes particularly pertinent in the context of discrimination claims, where the complaint should contain the parameters required to define the scope of the issue to be examined by the Court (see paragraph 185 above; see also, mutatis mutandis, Communist Party of Russia and Others, cited above, § 141). That being said, given the applicant’s express submissions, albeit at the Court’s prompting, regarding the “comparator group” at issue (see paragraph 155 above), the Court is prepared to accept that the thrust of his discrimination complaints related to the different treatment accorded to him in relation to voters residing in the Republika Srpska, by reason of his residence in the other Entity of Bosnia and Herzegovina. The assessment as to the applicant’s victim status will therefore be principally guided by the comparator group and the ground of distinction thus put forward by the applicant.

195. In undertaking that assessment, the Court will not distinguish between Article 14 of the Convention and Article 1 of Protocol No. 12, which embody the identical notion of “discrimination” (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12; see also Sejdić and Finci, cited above, § 55; Baralija, cited above, § 46; and Ádám and Others, cited above, §§ 82 and 83). It reiterates in this connection that despite the wider scope of the protection under Article 1 of Protocol No. 12 for the purposes of the Court’s jurisdiction ratione materiae (see paragraph 182 above), the applicant ultimately needs to establish that he was directly and personally affected by the impugned electoral rules under both Articles.

(ii) Victim status in respect of the complaints regarding elections to the House of Peoples

196. The Court observes that the applicant’s complaints, which he lodged prior to the general elections of 2 October 2022, did not relate to any particular measures that were directed at him as a voter personally, but rather concerned certain constitutional and legislative provisions that pertained to the general organisation of the electoral system and that, according to the applicant’s arguments, discriminated against him on the basis of his “residence”.

197. The Court acknowledges that “place of residence” may constitute an aspect of personal status for the purposes of Article 14 and Article 1 of Protocol No. 12 and can therefore trigger the protection of those provisions (see Sejdić and Finci, cited above, §§ 43 and 44; Carson and Others, cited above, §§ 70-71; and Baralija, cited above, § 47). However, it remains to be determined, in the light of the Court’s case-law as outlined in paragraphs 166‑180 above, whether the applicant can claim to be a “victim” of a violation of the right not to be discriminated against by reason of those residential requirements of general application.

198. According to the Chamber, which examined the question of the applicant’s victim status solely from the standpoint of Article 1 of Protocol No. 12 to the Convention, the applicant’s eligibility to vote in elections to a cantonal assembly and thus, indirectly, in elections to the State House of Peoples was sufficient to establish his victim status in respect of the discrimination complaints raised in relation to that second legislative chamber (see paragraph 42 of the Chamber judgment). In the Grand Chamber’s view, the Chamber’s finding in that regard was couched in very general terms. This had the effect of granting the applicant – and by analogy the entire voting population – virtually automatic victim status in respect of the impugned electoral rules, without considering whether he had demonstrated that those rules had a direct and personal discriminatory impact on him. The Grand Chamber disagrees with that approach, which it considers would enable the Court to examine any domestic electoral law in the abstract and would thus fall foul of the rule against actio popularis (see, for instance, Yumak and Sadak, cited above, § 73; Russian Conservative Party of Entrepreneurs and Others, cited above, § 78; and Dimitras and Others, cited above, §§ 29-31). For the same reason, the fact that the applicant is subject to the legislative authority of the House of Peoples, like all citizens of Bosnia and Herzegovina, is not sufficient on its own to recognise his victim status in respect of his discrimination claims; a more targeted assessment as to the existence of victim status must be carried out on the basis of the specific complaints raised by the applicant.

199. The Court would note in this connection that, by their very nature, electoral rules impose certain restrictions on the exercise of the right to vote based on factors that derive from the specific constitutional set-up in a State. However, not all of those restrictions are of such a nature as to directly and personally affect the voters’ subjective right to participate in the electoral process on equal terms; instead, they may result from the constraints inherent in the organisation of the electoral process, in keeping with the requirements of the particular constitutional system.

200. Nor does the Grand Chamber find that the applicant may be recognised as having victim status simply by virtue of the Court’s findings in the Sejdić and Finci group of cases. The Court is well aware that the electoral rules referred to by the applicant are the same as those that were found to be in breach of Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12 in that group of cases. However, the present case differs significantly from those earlier cases in that it challenges the impugned rules not from the standpoint of the right to stand for election – that is, the “passive” aspect of the right to vote safeguarded under Article 3 of Protocol No. 1 – but from that of a voter in the exercise of the “active” right to vote.

201. The Court notes at this juncture that the active and passive aspects of the right to vote – while they both serve, in a complementary manner, the general aim of establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law (see, for instance, Petkov and Others v. Bulgaria, nos. 77568/01 and 2 others, § 59, 11 June 2009, and the cases cited therein) – are intended to protect different interests, are different in their scope, entail different requirements and may be subject to different limitations. It reiterates that an act infringing the rights of persons wishing to stand for election does not necessarily render the users of the active right to vote victims on the same or related grounds, even if their interests may also have been affected to some degree (see, mutatis mutandis, Russian Conservative Party of Entrepreneurs and Others, cited above, §§ 67 and 74-81, and Yabloko Russian United Democratic Party and Others, cited above, §§ 81, 87 and 88). The Court repeats that, in order for the victim status of voters to be established, they must be directly affected by the impugned electoral rules, in the sense that there must be a sufficiently direct link between them and the harm which they claim to have sustained in their capacity as voters on account of the rules at issue (see, mutatis mutandis, Mansur Yalçın and Others, cited above, § 40; Dimitras and Others, cited above, §§ 29-31; and Ádám and Others, cited above, § 64).

202. As noted in paragraph 148 above, the applicant indeed asserted that he belonged to a group of people that was “at risk of being directly affected” by the impugned electoral rules. In the absence of any other cogent and coherent arguments by the applicant, and given his identification of the “comparator group” as the voters resident in the Republika Srpska, it appears that the group that the applicant claimed to belong to, and that was “at risk of being directly affected” by the allegedly discriminatory electoral rules, was that of voters resident in the Federation, irrespective of their ethnic affiliation. More specifically, he complained that only voters who resided in the Republika Srpska could vote for the Serb delegates to the House of Peoples and that the elections in that Entity were organised in a manner that better ensured the voters’ influence on the outcome, as compared with the system in place in the Federation. He contested his inability, as a resident of the Federation, to take part in elections in the Republika Sprska and argued that Bosnia and Herzegovina should in fact become a single electoral unit, where all citizens could be involved in the election of all delegates throughout the entire territory of the State, regardless of ethnic affiliations (see paragraphs 151, 155, 157 and 187 above). The Court takes note of those arguments, but does not find that they contain any substantiated element of discriminatory treatment directly and personally affecting the applicant, whether at the individual or the group level, for the reasons set out below.

203. The Court notes in this connection that the division of the national territory into constituencies for electoral purposes and accompanying residence requirements for the use of the active right to vote are very common features of European electoral systems[15], including in non-federal States (see, mutatis mutandis, Bompard v. France (dec.), no. 44081/02, ECHR 2006-IV, and Mironescu v. Romania, no. 17504/18, §§ 38 and 39, 30 November 2021; see also the Croatian Government’s submissions in this regard as set out in paragraph 160 above). The Court has accepted that an electoral system which imposes a territorial link between the voters and their elected representatives pursues a legitimate aim compatible with the principle of the rule of law and the general objectives of the Convention (see Mironescu, cited above, § 39, and the cases cited therein). States have a wide margin of appreciation in this sphere, and may choose to establish electoral units based on existing administrative boundaries, or other administrative, geographical or constitutional criteria that they may determine in view of their specific needs and conditions.

204. Accordingly, voters may be subject to electoral rules which may vary depending, generally, on where they are registered on the electoral roll, including as regards the selection of available candidates, on the number of seats assigned to each district, or even on the particular form of voting used in the district (see, for instance, Lindsay and Others v. the United Kingdom, no. 8364/78, Commission decision of 8 March 1979, DR 15, p. 247; Sevinger and Eman v. the Netherlands (dec.), nos. 17173/07 and 17180/17, 6 September 2007; and Oran v. Turkey, nos. 28881/07 and 37920/07, §§ 55‑68, 15 April 2014). This is particularly so where the second legislative chamber is concerned, be it in a federal or a unitary State, since in many instances such chambers serve to ensure the representation of such sub‑national entities or authorities as are peculiar to each State’s constitutional configuration, or the representation of other specific interests, as opposed to the interests of the general population (see the Venice Commission’s amicus curiae brief for the Constitutional Court of Bosnia and Herzegovina and its report on bicameralism, referred to in paragraphs 64 and 66 above respectively).

205. In the specific case of Bosnia and Herzegovina, the constitutional system set up by the Dayton Agreement is structured in such a way that the State consists of two Entities – and the Brčko District in joint ownership (condominium) – each with its own constitution, bicameral parliament, government and citizenship (see footnote 8 above). Moreover, the Entity of the Federation of Bosnia and Herzegovina is further divided into ten federal units – named cantons – each of which also has its own separate constitution, parliament and government. In accordance with section 3.9 of the Election Act, any citizen of Bosnia and Herzegovina who has the right to vote is, as a rule, recorded in the Central Voters’ Register for the basic constituency where he or she is registered as a permanent resident (see paragraph 37 above). Section 1.1a of the same Act further clarifies that “permanent residence” is the municipality, city or district in which a citizen has settled with the intention of living there permanently (ibid.). Consequently, voters are resident, and registered to vote, either in a municipality, city or district within a canton of the Federation or in the Republika Srpska (see section 18.2 of the Election Act referred to in paragraph 37 above for the special arrangements made in relation to the voters resident in the Brčko District).

206. The administration of legislative elections in each Entity of Bosnia and Herzegovina is governed by different electoral rules, specific to the structure of the Entities as laid down in their respective Constitutions (see paragraphs 38-42 above). For the purposes of the composition of the second chamber of the Parliamentary Assembly of Bosnia and Herzegovina (that is, the House of Peoples), each set of voters exercise their voting rights in their respective constituencies within each Entity, not directly but via the separate legislative bodies that govern their respective Entities. Just as the applicant is not able to take part in the process of electing Serb delegates to the House of Peoples from the Republika Srpska, the voters from that Entity are excluded from the corresponding process in the Federation; however, both groups influence the composition of the House of Peoples from their own territories.

207. It accordingly follows that the separation of Bosnia and Herzegovina into different electoral units along Entity lines for the purposes of the composition of the House of Peoples is a result of its highly decentralised and uniquely complex constitutional structure embedded in an international peace agreement. In that structure, the voters find themselves in materially different situations as residents of distinct Entities; yet from a territorial perspective, both Entities enjoy representation in the House of Peoples and all eligible citizens in those Entities participate indirectly in the election process. In so far as the applicant complains of his inability to take part in the election process in the other Entity and calls for the electoral system to function on the basis of a single electoral unit (see paragraphs 151, 155 and 157 above), he is effectively contesting the fundamentals of the electoral and constitutional system in place in Bosnia and Herzegovina as a federal State made up of two Entities, rather than raising a genuine difference in treatment between two different groups of voters in the exercise of a right provided under the Convention or the national law (compare Matthews v. the United Kingdom [GC], no. 24833/94, §§ 63-68, ECHR 1999-I).

208. The Court emphasises in this connection that it can neither engage in a general review of the Convention compliance of the configuration of the electoral system in the respondent State along Entity lines, nor can it compare in the abstract the manner in which the elections are administered in each of the Entities, as dictated by their specific constitutional design (without prejudice to its findings in the Sejdić and Finci group of cases, as noted in paragraph 215 below). The Court’s task is limited to determining whether the impugned rules had a direct and personal discriminatory impact on the applicant. The Convention protection mechanism, which guarantees individual rights, will only be set in motion if convincing evidence of such a direct and personal link may be established between the relevant legal framework and the obligations or effects weighing on an applicant claiming to be the victim of discrimination (see, for instance, Ádám and Others, cited above, § 64), which is precisely what is lacking in the present case. The applicant’s claims instead entail aspirations of a general nature as to how the electoral system should be set up with a view to enabling voter influence across the entire national territory (see paragraphs 151, 155, 157, 187 and 188 above), without providing any evidence, either before the Court or before the domestic authorities, as to whether and how, as an individual voter resident in the Federation, he was harmed, disadvantaged or otherwise subjected to a difference in treatment as a result of the organisation of the elections along Entity lines as described above (compare Moureaux and Others, cited above, where the applicants were acting in their dual capacity as representatives and members of the French-speaking linguistic minority resident in an administrative district in the Flemish Region; compare also with Pilav, cited above, §§ 22 and 50, where the applicant complained both about his inability to stand for election to the Presidency of Bosnia and Herzegovina, and to vote for a member of his own community). The Court has been provided with no basis on which to evaluate how the operation of the voting system in practice impacted the applicant’s vote at the cantonal level, and his representation in the State House of Peoples as a resident of the Federation, differently as compared with the general body of voters in the Republika Srpska, or even whether he voted at all in the legislative elections of October 2022 (see, mutatis mutandis, Russian Conservative Party of Entrepreneurs and Others, cited above, § 77, and Yabloko Russian United Democratic Party and Others, cited above, §§ 86-89, where the Court noted that the applicants had failed to furnish adequate information to enable it to establish that they had actually been affected by the measures complained of).

209. To the extent that the applicant specifically compared the three-level election system in the Federation with the two-level system in the Republika Srpska – which allegedly provided voters with more influence in the composition of the State House of Peoples (see paragraphs 153 and 155 above) – the Court considers that the system of conversion of votes into political mandates is a matter involving complex considerations that does not lend itself to simple comparisons, in particular where indirectly elected (or appointed) second legislative chambers are concerned. The Court reiterates that in the context of the composition of the State House of Peoples, the involvement of all voters, whether resident in the Federation or in the Republika Srpska, is limited to the first level of elections. Voters from both Entities cast their votes for the purpose of electing the members of the cantonal assemblies (in the Federation) and the National Assembly (in the Republika Srpska) at the first (local) level, without knowledge of how – if at all – their vote at that level would affect the composition of the State House of Peoples. It is not at all evident that the two groups are in an analogous position such as to permit the comparison sought by the applicant, given that the difference in the election systems results from the stratified constitutional design of the Federation.

210. The Court considers, on the basis of the above findings, that rather than alleging a violation of any of his individual rights protected under the Convention and the Protocols thereto, the applicant’s complaints were intended to effect fundamental and conceptual changes to the constitutional structure and electoral legislation in Bosnia and Herzegovina in a general manner. This conclusion finds support in the applicant’s consistent submissions as regards the purpose and the expected outcome of his application, for example that the amendment of the impugned constitutional provisions was his “basic inspiration for submitting the [present] application”; that through his application he wished “to achieve the restoration of full democracy in Bosnia and Herzegovina” and sought “the protection of the active voting rights in such a way that every citizen of Bosnia and Herzegovina [was] given the right to vote freely and without ethnic restrictions”; and that in his view, the only way forward was to transition “from a system of ethnic-parity distribution of political power to one of civil political representation based on the proportional distribution of political power across the entire territory of Bosnia and Herzegovina” (see paragraphs 148 and 151 above). The applicant’s argument that the entire voting population is concerned by the impugned limitations also attests to the general and abstract nature of his claims.

(iii) Victim status in respect of the complaints regarding elections to the Presidency

211. The Court notes that the applicant’s complaints with regard to elections to the Presidency entail some differences from the complaints relating to the House of Peoples. Firstly, by virtue of Article V § 1 (a) of the Constitution and section 8.1 of the Election Act, and unlike in the context of elections to the House of Peoples, the applicant enjoyed a direct right to vote in the elections to the Presidency, which was limited to a Bosniac or Croat candidate. Moreover, as opposed to the second chambers in many bicameral systems – including in Bosnia and Herzegovina – that are designed to ensure the representation of different sub-national entities or interest groups in a country, the institution of the Head of State typically represents the interests of the general population and of the State, which is also reflected in the powers conferred on the collective Presidency in Bosnia and Herzegovina (see Article V of the Constitution of Bosnia and Herzegovina, quoted in paragraph 36 above, by which the Presidency is tasked with, inter alia, conducting a unified foreign policy and proposing an annual budget to the Parliamentary Assembly; see also the applicant’s arguments to this effect as set out in paragraph 155 above).

212. However, neither the direct nature of the vote, nor the nature and scope of the Presidency’s executive powers are sufficient to render the applicant a “victim” of discrimination in respect of any perceived deficiency in the process of elections to the Presidency, largely for the reasons noted in paragraph 198 above. The applicant was required to provide further elements establishing the existence of a sufficiently direct and personal link with the harm which he claimed to have sustained on account of the alleged discrimination (see the case-law references in paragraphs 166-180 and 201 above).

213. Having examined the applicant’s arguments under this head, the Court observes that beyond making general criticisms about the restrictions governing elections to the Presidency and expressing his strong preference for a single electoral unit where all voters would be entirely free to vote for any candidate, he did not provide information on how the impugned electoral rules discriminated against him as a voter (see paragraphs 151, 155, 157, 187 and 188). In this connection, and as noted in the context of its examination relating to the House of Peoples (see paragraphs 207 and 208 above), voters from both the Federation and the Republika Srpska – who are in materially different situations as residents of different constitutional Entities, as discussed in paragraph 207 above – are represented in the collective Presidency and are equally deprived of the opportunity to vote outside their Entity. Accordingly, and in so far as the applicant complained of having been discriminated against on the basis of his place of residence, it remains unclear how the territorial limitations at issue produced any discriminatory effects bearing on his rights protected by the Convention and the Protocols thereto, individually or as part of a group, in comparison with voters resident in the Republika Srpska.

214. In the light of the foregoing, and referring also to its detailed analysis conducted in respect of the complaints relating to the House of Peoples, in so far as relevant (see paragraphs 196-210 above), the Court considers that the applicant’s claims under this head were likewise directed at effecting a change to the constitutional and electoral structure of Bosnia and Herzegovina – purportedly in the general public interest – rather than vindicating his individual rights guaranteed by the Convention and the Protocols thereto.

(iv) Conclusion

215. The Court does not in any way disregard the discriminatory nature of the rules governing eligibility to the House of Peoples and the Presidency from the perspective of the passive aspect of the right to vote, as already recognised in the Sejdić and Finci group of cases, which regrettably remain unexecuted to this date, and as emphasised repeatedly by many other international bodies (see paragraphs 55, 56, 57-62, 68, 70-72 above). Nor does it deny that the applicant too might have been affected by those rules to some degree. However, having regard to the considerations in the foregoing paragraphs, and particularly in the absence of a sufficient explanation as to how the impugned electoral rules had a concrete impact on the free expression of his opinion on an equal footing with the other voters with whom he compared himself, the Court finds that the applicant’s claims amount to an abstract critique of the “state of the law” of an actio popularis nature. In the Court’s view, the applicant’s elusiveness in respect of his complaints as noted in paragraphs 190-194 above may in fact be explained by his overriding concern with the general organisation of the constitutional and electoral system, as opposed to specific issues directly concerning his individual rights.

216. The Court concludes, in view of the above, that the applicant lacks victim status in respect of the alleged violation of his rights under both Article 14, in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12, in relation to each of his complaints relating to the House of Peoples and the Presidency.

217. In view of this finding, and for the reasons noted in paragraph 164 above, the Court does not consider that the Government’s objection regarding the applicability ratione materiae of the relevant Convention provisions requires a separate examination in the present case.

The remaining preliminary objection

218. The Government argued that the applicant had a number of domestic remedies at his disposal that he had failed to pursue, including, in particular, the remedy before the Constitutional Court of Bosnia and Herzegovina. The applicant contested the effectiveness of the remedies referred to by the Government.

219. Having regard to its findings regarding the applicant’s abuse of the right of application and his lack of victim status (see paragraphs 139 and 216 above, respectively), the Court considers that it is not necessary to examine separately whether or not the applicant complied with the rule of exhaustion of domestic remedies, as required under Article 35 § 1 of the Convention.

FOR THESE REASONS, THE COURT

Holds, by sixteen votes to one, that the applicant’s complaints under Article 3 of Protocol No. 1 to the Convention, taken alone and/or in conjunction with Article 14 of the Convention, regarding the indirect nature of the elections to the House of Peoples of Bosnia and Herzegovina and the amendment of certain electoral rules on the day of the general elections of 2 October 2022 fall outside the scope of the case as submitted to the Grand Chamber;
Upholds, by sixteen votes to one, the Government’s objection to the admissibility of the application on the following grounds:

(a) by sixteen votes to one, that the applicant has abused the right of application within the meaning of Article 35 § 3 (a) of the Convention;

(b) by twelve votes to five, that the applicant lacks victim status under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1 to the Convention, and Article 1 of Protocol No. 12.

Holds, unanimously, that it is not necessary to examine the remaining inadmissibility grounds relied upon by the Government.

Done in English and French, the operative provisions of the judgment having been delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 June 2025 pursuant to Rule 77 § 2 of the Rules of Court.

{signature_p_2}

Marialena Tsirli Mattias Guyomar
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Concurring opinion of Judge Pavli;

(b) Joint statement of partial dissent of Judges Bårdsen, Chanturia, Yüksel and Schembri Orland;

(c) Dissenting opinion of Judge Vehabović.

CONCURRING OPINION OF JUDGE PAVLI

1. I have voted with the majority in holding that the applicant lacks victim status under Article 14 of the Convention, in conjunction with Article 3 of Protocol No. 1 to the Convention, and Article 1 of Protocol No. 12 (see operative provision 2 (b) of the judgment). I have done so, however, on narrower grounds than those relied upon by the majority.

2. The first and essential ingredient of every discrimination claim is a demonstration of differentiated treatment (among equals) in the enjoyment of a Convention right, or of “any right set forth by law”. The applicant has provided no evidence of such a difference in treatment in relation to the comparator group he has identified, namely voters resident in the Republika Srpska, as regards elections for either the House of Peoples or the collective Presidency of the State (see paragraphs 207 and 213 of the judgment, respectively). He is therefore in no position to claim that he has been the victim of any discriminatory treatment. Such a finding would have been sufficient in my view to declare the complaint inadmissible. To paraphrase Chief Justice John Roberts, as it was not necessary to go further in deciding this sensitive case, it was necessary not to go any further.

JOINT STATEMENT OF PARTIAL DISSENT OF
JUDGES BÅRDSEN, CHANTURIA, YÜKSEL AND SCHEMBRI ORLAND

We voted in favour of dismissing the case because the applicant abused his right of individual application (see point 2 (a) of the operative provisions of the judgment). That being so, there was no need for us to take any position on the applicant’s victim status. This is the reason why we voted against point 2 (b) of the operative provisions.

DISSENTING OPINION OF JUDGE VEHABOVIĆ

With great regret, I am not able to vote along with my colleagues in this case. There are numerous reasons for my dissenting position. Let me start with a number of procedural deficiencies.

Procedural flaws

Firstly, paragraph 102 of the judgment correctly points out that the question of the authority of the acting Agents must be addressed as a preliminary matter in limine litis. In my understanding, in limine litis in substance means as soon as the Court became aware of the question addressed to it. However, the judgment does not mention exactly when this preliminary question was decided. This issue is extremely relevant from a procedural point of view as it deals with the question of proper representation of the parties to the proceedings in the present case. Rule 35 of the Rules of Court provides that “[t]he Contracting Parties shall be represented by Agents ...”. Anyone reading the judgment in the light of this Rule might be puzzled, which is never advisable in sensitive cases such as this one.

Concerning the merits of this preliminary question, it is worth mentioning that by way of comparison, a similar situation concerning the legality of representation occurred before the International Court of Justice (ICJ) in the revision proceedings in the case of Bosnia and Herzegovina v. Serbia and Montenegro[16]. Controversy ensued when in May 2016 Mr S. Softić, the original Agent of Bosnia and Herzegovina in that case, enquired whether his appointment as the Agent was valid for the initiation of proceedings for revision of the judgment delivered on 26 February 2007. He was informed by the Registrar of the ICJ that a new appointment would be required for the institution of revision proceedings. Nevertheless, despite the absence of a document attesting to the appointment of Mr Softić by all three members of the Presidency for proceedings for the revision of the 2007 judgment, on 23 February 2017 such a request – signed by Mr Softić as the Agent of Bosnia and Herzegovina – was submitted to the ICJ. Upon a request by the ICJ for clarification, two members of the Presidency, including the Chair, responded that no decision had been taken by the Presidency, or any other official body, to initiate proceedings for the revision of the judgment. The third member argued, however, that the initial decision to appoint Mr Softić as Agent remained valid and in force, and that the revision request fell within his mandate. The ICJ considered, on the basis of the correspondence received, that no decision had been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the judgment of 26 February 2007 and that it was therefore not properly seised of the matter.

In the present case, which was procedurally very similar, the Court has accepted that the Agents do not need approval from the Government they represent, which is an absurd and impossible situation in any country (especially in cases such as this one, in which the constitutional structure of the State is at stake). Communication between the Court and the Government has been limited only to the Office of the Agent, and the Court has never received proper approval from the Government for referral of the case to the Grand Chamber.

Secondly, the judgment fails to explain the conflict of interests on the part of one of the third-party interveners and how the Court has found itself in the situation of accepting a self-invitation from a “State on steroids” such as the Office of the High Representative (OHR) to intervene as a third party. The OHR has a clear interest in the outcome of this case, given that the examination of other cases brought against the decisions imposed by the OHR concerning changes made to the Constitution of the Federation of Bosnia and Herzegovina and the Election Act 15 minutes after the polling stations were closed on 2 October 2022 has been postponed by the Fourth Section (and the respective parties have been informed of this fact) until the present case has been decided[17]. Why is the OHR a “State on steroids”? The OHR has the authority to enact laws, change the Entities’ constitutions and remove elected officials, among other things, and can hardly be considered an objective party to the proceedings, but rather is a surrogate to the State authorities. This mere fact alone should have been sufficient to exclude the OHR from participation in this case, not to mention the clear conflict of interests concerning other cases pending before the Court. This is yet another serious procedural error in the present case.

Thirdly, as noted in paragraph 114 of the judgment, which cites Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, § 56, 25 March 2014) and other related cases as the Court’s settled case-law, the “case” referred to the Grand Chamber embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in “the case” being limited only by the Chamber’s decision on admissibility. It therefore follows that the “case” referred to the Grand Chamber is the application as it has been declared admissible, together with the complaints which have not been declared inadmissible. It seems that the parties, as well as the judges, were misled in order to direct discussion towards a complaint that had been declared inadmissible and as such should not have been the subject of any discussion. Even so, the case before the Grand Chamber was communicated to the parties[18] on the basis of complaints that had already been declared inadmissible, and all parties were invited to comment on the inadmissible complaints, a fact which heavily influenced discussions at the (public) hearing. For the sake of the transparency of the proceedings, which is supposed to be a paramount principle of proceedings before the Court, this “detail” cannot be simply drowned in a sea of words and should have been properly addressed in the judgment as an undisputed fact known to all parties to the proceedings. As it stands now, the judgment gives the impression that in the absence of a valid legal argument for finding that the applicant lacks victim status in relation to his discrimination complaint, it relies heavily on an inadmissible complaint relating to the holding of free elections to create a “stricter” condition for attaining victim status in the present case.

Furthermore, the judgment deliberately limits its examination of the applicant’s complaints – which were based on a combination of ethnic and geographical criteria, as clearly expressed in his application and confirmed at the public hearing – and deals only with the territorial aspect of his complaints, completely disregarding the “ethnic” aspect. Why? Generally, in the present case the Grand Chamber has cherry-picked arguments that go in a certain direction, leaving aside those arguments that were relevant for the proper outcome of the proceedings. For example, the applicant contended that his right not to be discriminated against as a simple citizen/voter had been violated by limiting his choice to ethnically predetermined candidates. Furthermore, he insisted that he was not able to elect candidates that best represented his political views. All his arguments were “translated” into the context of a discriminatory election system (as has been confirmed by the Court in a number of judgments[19]) and laid emphasis on his ethnicity, with the result that his entire discrimination complaint was assessed from the wrong perspective.

Substantive deficiencies

Victim status

Apart from the above-mentioned procedural flaws, it is more than clear that the judgment is full of incorrect assumptions and consequently cites case‑law that is irrelevant to the discrimination complaints.

The House of Peoples represents only ethnic groups and is protected by the “vital ethnic veto”, not a non-existent “vital Entity veto” or “territorial veto”. In the process of elections to the House of Peoples all citizens are included but are limited to a certain territory and ethnic group, and that is precisely the applicant’s complaint. In other words, all citizens of the Republika Srpska (including those of any ethnicity other than Serb, representing at least 20-25% of the population) have only one choice – to vote for the Serb member of the Presidency and Serb members of the House of Peoples at the State level[20]. There are also Serbs in the Republika Srpska who may not wish to vote along purely ethnic lines but rather along political lines. The same principle applies to the Entity of the Federation in relation to the other ethnic groups.

A separate and very revealing question is why the judgment first extensively discusses the House of Peoples and only later deals very briefly with the complaint relating to the Presidency. Is it because the House of Peoples is a more complex legal entity to attack from a human rights point of view and the Presidency a much easier “target”? Readers may decide for themselves, but that is the impression I have when reading the judgment.

The judgment limits the scope of the applicant’s complaint, first of all by treating the discriminatory set-up enshrined in the Constitution itself as a legitimate one. The applicant centred his complaints on his refusal to declare his ethnic affiliation, putting himself in the category of “Others”[21] (who are not represented in any way in the Presidency or in the House of Peoples). But this is completely disregarded by the judgment, which focuses[22] only on the territorial aspects (disregarding the complaint as set out in the application form). The nature of the electoral rules is that they limit even the choice of people affiliated with the constituent peoples (if they wish to vote along ethnic lines and they account for more than just a small fragment of the population) who live in the “wrong” territory (for that situation, see Pudarić, cited above, which deals only with this (territorial) aspect; in that case the applicant, a Serb from the Federation, was not allowed to stand as a candidate for the Presidency for the territory of the Republika Srpska); this aspect was also completely disregarded. It is an extremely dangerous practice trying to justify a system that artificially divides an electoral body along purely imaginary and unrealistic ethnic lines; if we accept that if the House of Peoples as a body is to protect ethnic interests only, the minimum requirement should be that this House represents the vast majority of a specific ethnic group, which is not the case in Bosnia and Herzegovina as the electoral body is administratively divided into two multi-ethnic Entities[23] (a situation which might have huge consequences for some parts of Europe in the possible process of the legitimisation of secessionist movements’ claims). I am afraid that this approach of arbitrarily disregarding the applicant’s original complaints and shaping the complaints according to the Court’s current unclear desires is dangerous for the Court’s reputation and may give rise not only to criticism but also to other undesired processes.

Finally, a major question is left open in a situation like this one where there is evident and systemic discrimination on a wide scale embedded in the Constitution itself (as recognised in paragraph 215 of the judgment): what are the remedies if the European Court of Human Rights is not ready to support its core aims – democracy, free elections, and the rule of law on the soil of Europe? Bosnia and Herzegovina with its discriminatory Constitution clearly does not fulfil these aims, at least with regard to its electoral and democratic arrangements.

(a) Artificial distinction between “active” and “passive” voting rights

The Court’s conclusion that only passive electoral rights have previously warranted victim status in Bosnian discrimination cases artificially narrows the scope of the protection afforded by the Convention. In Sejdić and Finci, Pilav and Pudarić (all cited above), the Court recognised applicants as victims even though they were not excluded from voting but rather from standing for office. The discriminatory structure that prevents individuals from either standing or meaningfully voting for representatives of their choice stems from the same source: ethnic and territorial exclusion under the Dayton Constitution.

If the right to stand for office (passive right) is protected against ethnic discrimination under Protocol No. 12, so too should the right to vote (active right) be. Denying the latter right splits hairs unjustifiably and leaves individuals without redress for structural electoral discrimination that limits meaningful voter choice.

Let us replace Serbs, Croats and Bosniacs with women and imagine a female voter from the Federation or the Republika Srpska not being able to vote for a female candidate either in the Federation or in the Republika Srpska. In theory, and following the logic of the judgment, her complaint would lack precision and a comparator group, and consequently she would lack victim status, or even worse, it might be said that her application was an actio popularis claim. My logic is very simple: if all women were discriminatorily banned from standing for election (passive voting rights), the choice of female voters (but also of any male voters wishing to vote for a female candidate) would be limited on discriminatory grounds – that is, all women wishing to vote for a female candidate would be automatically discriminated against as voters with active voting rights. Full stop.

Or, to use a current constitutional arrangement in Bosnia and Herzegovina, if candidates from minority groups such as Jews and Roma are excluded from standing in an election on discriminatory grounds (as was confirmed in the Sejdić and Finci group of cases), not only all Jews and Roma but also all other registered voters wishing to vote for those particular candidates (as reflected in Zornić, Pilav and Pudarić, all cited above) are automatically discriminated against by being in a situation where they have a limited choice on discriminatory grounds. Nobody can discriminate against a particular ethnic, political, religious or racial group by excluding its members from standing for election without also discriminating against voters wishing to vote for a particular candidate or candidates from that ethnic, political, religious or racial group. In those circumstances, as in Bosnia and Herzegovina, such exclusion has its basis in the Constitution, and it automatically interferes with the active voting rights of those wishing to vote for a particular candidate(s) belonging to a group of people that are discriminated against.

(b) Mr Kovačević is directly affected, not an abstract complainant

The Grand Chamber has characterised Mr Kovačević’s complaint as an actio popularis – an abstract challenge. But Mr Kovačević, as a citizen living in the Federation and wishing to vote for a candidate from the Republika Srpska for the State’s Presidency or the State’s House of Peoples who reflects his political stance, is in fact directly affected by the electoral system: he can only vote for Croat or Bosniac candidates in the Federation and is excluded from voting for the Serb member of the Presidency (if he wishes to do so). This exclusion derives from his ethnic and territorial status, precisely the combination previously recognised as discriminatory in Pilav and Pudarić (both cited above).

The applicant does not challenge the system in the abstract but rather contests a specific, personal disenfranchisement: the restriction of his right to vote freely owing to ethnic and territorial criteria. The Grand Chamber has ignored the fact that this exclusion operates through a legal bar and is not simply a source of subjective political frustration.

(c) Inconsistency with the Court’s own case-law on victim status

In Sejdić and Finci (cited above) the Court found that the applicants had victim status despite the fact that they were not even attempting to run for office. In Baralija (cited above), a woman was recognised as a victim for being unable to vote in non-existent local elections in Mostar – a situation where no direct denial of voting occurred, only the absence of a theoretical opportunity. The Grand Chamber here seems to impose a higher threshold on Mr Kovačević, requiring personal exclusion plus a comparator group – an approach that is inconsistent with these earlier precedents.

The Court’s reasoning introduces a double standard: it accepted a potential candidacy as sufficient for victim status in Sejdić and Finci but dismisses actual voting disenfranchisement in Kovačević as too abstract. This undermines legal predictability and coherence.

(d) Structural discrimination requires structural standing

The Grand Chamber appears reluctant to recognise Mr Kovačević’s claim because it would, in theory, open the door to challenges by “all voters”. But this is precisely the point: structural discrimination impacts all voters, and broad impact does not negate individual victimhood. The Convention does not preclude “mass victimisation”; for example, in environmental cases or cases concerning detention conditions, the Court has consistently allowed multiple individuals to challenge common causes of harm.

That many people are affected should strengthen rather than weaken the applicant’s claim; it underscores the systemic nature of the violation, not its abstract nature.

(e) Misplaced reliance on formal legal access instead of substantive equality

The judgment gives weight to the fact that Mr Kovačević was able to vote, thereby suggesting that he was not deprived of his electoral rights. But the Convention demands not just formal access, but equal and effective enjoyment of rights. As in Pilav (cited above), the inability to vote for a candidate representing one’s identity group – or for a full set of positions in the State – is a qualitative denial of rights, not just a matter of preference.

Mr Kovačević’s inability to vote for all members of the Presidency constitutes unequal treatment, and the Court’s emphasis on formal participation ignores the substance and dignity of political equality guaranteed under Article 1 of Protocol No. 12.

(f) Failure to account for the “chilling effect” of exclusionary rules

The Court’s restrictive approach may discourage individuals from challenging discriminatory laws if they believe that they need to first suffer a full exclusion or engage in symbolic futile acts (for example, trying to vote for a candidate who has been barred from standing). Recognising victim status here would have protected civic engagement and reflected the Court’s past flexibility in similar contexts.

The rejection of the applicant’s complaint discourages citizens from seeking redress and makes it harder to challenge unconstitutional but entrenched practices, especially where the implementation of past judgments remains stalled (for example, 16 years later Sejdić and Finci (cited above) is still unimplemented).

(g) The judgment undermines Article 1 of Protocol No. 12 as a tool against structural discrimination

Protocol No. 12 was adopted to provide a free-standing guarantee against discrimination in the enjoyment of any right under domestic law. By treating Mr Kovačević’s challenge as inadmissible, the Court narrows the reach of Protocol No. 12, rendering it ineffective against entrenched systems of electoral exclusion.

This interpretation neuters Protocol No. 12’s potential as a bulwark against broad but insidious discrimination and contradicts its object and purpose.

(h) General conclusions

The Grand Chamber’s refusal to recognise Mr Kovačević as a victim of electoral discrimination is open to serious criticism for being:

(a) inconsistent with the Court’s established case-law concerning victim status in discrimination cases;

(b) overly formalistic, ignoring the real-world exclusion faced by the applicant;

(c) insufficiently sensitive to the structural nature of the harm; and

(d) politically cautious in a way that undermines the Convention’s effectiveness in addressing systemic rights violations.

Ultimately, the Court’s ruling risks sending the message that only the most overt and individualised forms of exclusion warrant protection, an approach which undermines the progressive human rights aims of the Convention.

(i) Active v. passive electoral rights: a unified principle of equality

The Court’s case-law makes clear that active (voting) and passive (standing for election) electoral rights are integrally connected and equally protected. From its earliest case-law under Article 3 of Protocol No. 1, the Court has emphasised that free elections require equality in the enjoyment of both rights. In Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, Series A no. 113) the Court held that the phrase “free expression of the opinion of the people” “implies essentially ... the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election”[24]. There is no hierarchy placing the right to candidacy above the right to vote; rather, they form a “conceptually coherent” whole to be guaranteed equally[25]. Indeed, Article 3 of Protocol No. 1 “guarantees individual rights, including the right to vote and to stand for election” – rights which are “crucial to establishing and maintaining the foundations of an effective and meaningful democracy”[26]. This indivisibility means that discriminatory barriers targeting candidates invariably affect voters as well.

The view of the majority of the Grand Chamber that restricting who can stand for office does not impair voters’ rights contradicts this established case-law. It is true that the Convention does not guarantee every voter the presence of his or her preferred candidate on the ballot paper[27]. However, the State cannot engineer the absence of entire categories of candidates through discriminatory laws without violating the equal suffrage principle. The Court has reiterated that genuine democratic expression is “inconceivable without the participation of a plurality of political parties [and candidates] representing the different shades of opinion” (and by extension, the different segments of society)[28]. In other words, while voters have no absolute right to any particular candidate, they do have the right to a non-discriminatory electoral framework. If the State, by design, excludes a class of citizens from eligibility (on ethnic or other grounds), it distorts the election’s fairness for both would-be candidates and the electorate at large. Discrimination in access to candidacy thus “automatically restricts” the active franchise as well[29], contrary to the Grand Chamber’s conclusion. By treating active and passive rights as siloed, the Grand Chamber has departed from the Court’s consistent recognition that equal voting rights and equal eligibility are two sides of the same coin[30].

(ii) Victim status in structural discrimination cases

Under Article 34 of the Convention, an individual can claim to be a “victim” even of a discriminatory law or system that has not led to a one-off specific act against him or her, provided that the individual is directly affected by the underlying measure. The Court has long rejected the notion that applicants must wait to suffer a personal sanction or take futile steps in order to challenge a law that puts them in an inherently disadvantaged position. Article 34 does not permit actio popularis; in principle, an individual applicant must be actually affected by the impugned law. Nevertheless, a law may by itself violate rights if the individual is directly affected by it in the absence of any specific measure of implementation[31]. This principle, affirmed as long ago as 1978 in Klass and Others, has been applied in many contexts. For example, in Dudgeon v. the United Kingdom (22 October 1981, Series A no. 45) and Norris v. Ireland (26 October 1988, Series A no. 142), the Court accepted victim status for applicants challenging laws that criminalised homosexual acts, even though they had not been prosecuted; the very existence of the law directly affected their private lives and choices. Similarly, in Kovačević the constitutional provisions enforcing ethnically exclusive political representation directly affect the applicant’s civic rights on a daily basis, even in the absence of a single “event” such as a refused candidacy. Mr Kovačević belongs to a class of citizens (“Others” in the terms used by Bosnia and Herzegovina – and that is his personal choice according to his application, as opposed to citizenship) that the law openly marginalises in the political system. He need not prove further harm beyond this continuing discriminatory condition to be a victim.

Indeed, the Court’s own case-law in the Bosnian power-sharing cases has already implicitly recognised such standing. In Zornić (cited above), the applicant was a Bosnian citizen who refused to declare affiliation with any of the constituent peoples (identifying simply as a citizen) and complained of her ineligibility to be elected to the Presidency and House of Peoples. She had not attempted to stand for those offices, yet the Court dismissed the Government’s objection to her victim status. It noted that in Sejdić and Finci (cited above) it had found that “given [the applicants’] active participation in public life, they might claim to be victims of the alleged discrimination”[32], and found “no reason to depart from this conclusion” in the case of Ms Zornić. Crucially, the Court did not require Ms Zornić to have taken formal steps towards being a candidate; it was sufficient that as a politically engaged citizen she was directly restricted by the constitutional ethnic bias. Likewise, in Šlaku (cited above), involving a Bosnian citizen of Albanian origin, the Government argued that he was not a victim because he was “not actively involved in political life”. The Court flatly rejected that argument, again relying on Sejdić and Finci and Zornić: the applicants’ political participation in those cases showed that they “might claim to be victims of the alleged discrimination”, and the same held for Mr Šlaku[33]. In short, when a law structurally denies a group of citizens a right – here, full electoral participation – every member of that group who is affected by the denial has standing as a victim. The contrary view expressed by the Grand Chamber in Kovačević imposes an excessive burden on victims of systemic discrimination, effectively demanding individual proof of harm beyond the obvious impact of the discriminatory system itself. This falls foul of the Court’s insistence that Convention rights must be “practical and effective, not theoretical and illusory” for those they protect.

As a further point, the judgment misses an opportunity to elaborate thoroughly on Burden v. the United Kingdom ([GC], no. 13378/05, ECHR 2008) as a benchmark case on victim status in relation to discrimination complaints, but instead refers to other cases which have nothing to do with discrimination and in which the question of victim status was different[34]. Why was the Court’s judgment in Bakirdzi and E.C. v. Hungary (nos. 49636/14 and 65678/14, 10 November 2022) disregarded when it dealt with very similar complaints[35]?

(iii) Departures from established precedents (Sejdić and Finci, Zornić, Pilav, Baralija, and so on)

The Grand Chamber’s finding that Mr Kovačević lacked victim status is difficult to reconcile with the position taken by the Court itself in previous Bosnian electoral discrimination cases. In Sejdić and Finci (cited above), two applicants – of Roma and Jewish origin respectively – complained that the Bosnian Constitution barred them from standing for the Presidency and the House of Peoples purely on account of their ethnicity. The Court held unequivocally that such exclusion amounted to unjustified discrimination, violating Article 14 of the Convention (in conjunction with the right to free elections) and Article 1 of Protocol No. 12[36]. Importantly, the applicants in Sejdić and Finci were considered victims despite not holding the high offices in question – their mere ineligibility was the injury. The judgment implicitly recognised that a constitutional bar preventing a person from being a candidate because of ethnicity was itself a directly discriminatory act against that person, even before any election took place. The Grand Chamber in Kovačević has now undermined that precedent by suggesting that unless one has actively sought to stand as a candidate, one is not “affected” – a notion Sejdić and Finci pointedly did not adopt in finding those applicants to be victims.

Subsequent cases reinforced the principles set out in Sejdić and Finci. In Pilav (cited above), the applicant, a Bosniac resident of the Republika Srpska, was barred from running for the Bosnian Presidency’s Serb seat (since the Constitution reserves that seat for ethnic Serbs from the Republika Srpska). The Court found this to be discriminatory on ethnic and regional grounds, breaching Article 1 of Protocol No. 12[37]. Notably, Mr Pilav also argued that he was prevented from voting for a member of his own community standing for that office – the same grievance Mr Kovačević raised as a voter. The Chamber in Pilav recognised the seriousness of that complaint: it joined the Government’s victim-status objection to the merits, acknowledging that the question of Mr Pilav’s “victim” standing was essentially whether he had been discriminated against. The Court then held there was indeed discrimination, emphasising that limiting the candidate pool on ethnic lines violated equal access and effectively denied members of certain groups (and those residing in certain areas) full electoral rights. By contrast, the Grand Chamber in Kovačević has short-circuited this analysis. Instead of assessing whether the inability to vote for one’s preferred representative group was discriminatory (as Pilav did in substance), the Grand Chamber treated it as a threshold issue to deny standing. This procedural disposal starkly contrasts with the Pilav approach of fully examining the claim.

The inconsistency grows clearer when we consider Baralija (cited above). There, the applicant, a resident of Mostar, went for over a decade without local elections being held as a result of a legislative impasse. She alleged discrimination on grounds of residence since citizens elsewhere in Bosnia and Herzegovina could vote for municipal councils but Mostar residents could not. The Court unanimously found a violation of Article 1 of Protocol No. 12: the “legal void” that made local elections impossible in Mostar violated Ms Baralija’s right to free elections without discrimination[38]. Crucially, Ms Baralija was herself a local politician (as the Court noted), but the discrimination – no elections in her city – was a structural one affecting all Mostarians. The Court did not question her victim status; on the contrary, it used her case to address the systemic harm, even issuing an Article 46 order compelling Bosnia and Herzegovina to amend the law within six months. If the Grand Chamber’s reasoning in Kovačević were applied consistently, one might expect the Court to have denied Ms Baralija standing on the basis that the harm (no elections) was general. Yet it did not; it treated her as a victim of broad-based discrimination based on residence, analogous to how Mr Kovačević is a victim of broad‑based ethnic/residence discrimination in national elections. The Grand Chamber’s refusal to recognise Mr Kovačević’s standing therefore marks a departure from the Court’s own handling of similarly situated claimants. It creates an illogical dichotomy: past applicants who belonged to excluded ethnic groups (or who lived in disfavoured locales) were allowed to vindicate their rights, but Mr Kovačević – who as a self-declared “citizen of Bosnia” falls into the exact category (“Others”) that prior judgments said must be enfranchised – has been turned away at the courthouse door. This not only undermines the consistency of the Court’s case-law but risks signalling a retreat from the robust stance the Court had previously taken against Bosnia and Herzegovina’s discriminatory constitutional regime in Sejdić and Finci, Zornić, Šlaku, Pilav, Pudarić and Baralija[39].

(iv) Article 1 of Protocol No. 12: broad protection against discrimination

Article 1 of Protocol No. 12 was expressly designed to provide a broad, free-standing guarantee of equal treatment by public authorities, beyond the specific rights set forth in the Convention. It prohibits discrimination in the “enjoyment of any right set forth by law” and, even more generally, forbids any discrimination by a public authority on any ground such as sex, race or ethnicity[40]. This provision was central to Mr Kovačević’s case. Because the Presidency of Bosnia and Herzegovina is an executive office (and hence is not covered by Article 3 of Protocol No. 1) and because his complaint concerned the discriminatory structuring of voting rights, Protocol No. 12 was the vehicle – just as it was in Sejdić and Finci (in relation to the Presidency) and all the subsequent Bosnian power-sharing cases. In those precedents, the Court used Protocol No. 12 to condemn Bosnia and Herzegovina’s ethnically based political regime, recognising it as discrimination “on the grounds of ethnic origin and place of residence”[41]. For example, the Pilav judgment (cited above) explicitly held that in accordance with the Constitution of Bosnia and Herzegovina, only persons declaring affiliation with a constituent people could stand for the three-member Presidency, thereby excluding citizens like Mr Pilav (a Bosniac in the Republika Srpska) – a difference in treatment that was found to have no objective justification in 2016[42]. In Sejdić and Finci (cited above), the Grand Chamber back in 2009 similarly found that the ethnic restrictions could not be “justified in a contemporary democratic society”, leading to a violation of Protocol No. 12.

Given this background, the Grand Chamber’s decision to dispose of Mr Kovačević’s Protocol No. 12 claim on admissibility (victim status) rather than grapple with it on the merits represents a troubling narrowing of Protocol No. 12’s scope. It effectively shields the discriminatory electoral system from scrutiny under the very provision meant to address discrimination per se. The Grand Chamber appears to have reasoned that, because Mr Kovačević was allowed to vote for someone, he did not personally suffer discrimination – overlooking the fact that the State’s electoral law denied him the equal “enjoyment of a right set forth by law”, namely the right to vote in truly inclusive elections.

Voting itself is a right “set forth by law” in Bosnia, and in accordance with Protocol No 12, the authorities must secure that right without discrimination. By barring candidates of certain ethnicities and from certain territories, the State indeed failed to secure, on an equal basis, the substance of Mr Kovačević’s voting right – the ability to vote for the representatives who best reflected his (political) views and identity. The Chamber had recognised as much in its judgment of 29 August 2023, finding a violation of Protocol No. 12 due to “discriminatory treatment on grounds of ethnicity and place of residence” in the exercise of voting rights. The Grand Chamber’s contrary stance empties Protocol No. 12 of any meaning in this context. It suggests that only those who themselves have sought office can complain, even though Protocol No. 12 was intended to cover “any person” affected by discriminatory laws or acts. Such an approach runs counter to the sweeping language of Article 1 § 2 of Protocol No. 12, which requires that “no one shall be discriminated against by any public authority”[43]. If being categorically relegated to a political underclass (“Others”) by one’s constitution is not being “discriminated against by a public authority,” it is hard to imagine what is. In short, the Grand Chamber’s approach not only conflicts with prior case outcomes but also dilutes the potent equal‑treatment guarantee that Protocol No. 12 was meant to provide in addressing systemic discrimination.

(v) Systemic harm, individual standing, and the effectiveness of the Convention

Underlying the Grand Chamber’s decision is a worrying implication: that broad or systemic harm is somehow beyond the reach of an individual application. The Convention system, however, is premised on individuals being able to challenge laws and practices that violate their rights, even (indeed especially) when those violations are rooted in systemic inequality. The Court has described the right of individual petition (Article 34) as “one of the keystones” of the Convention’s enforcement machinery[44]. If individuals like Mr Kovačević – who personally endure a diminished status under his country’s constitutional framework – are barred from litigating such issues, then systemic discrimination will go unaddressed, undermining the Convention’s effectiveness as a bulwark of human rights. The Klass and Others judgment (cited above) warned against interpreting “victim” status in an overly rigid manner that would prevent secret surveillance measures from ever being reviewed. That logic applies here as well. Bosnia and Herzegovina’s ethnically based restrictions are not clandestine; they are in plain view in the text of the Constitution. But if the Court erects a standing barrier, saying that an ordinary citizen lacks victim status to challenge them, it creates a de facto immunity for structural discrimination. The Convention would then protect only those who actively seek public office (or those entirely denied a vote), leaving ordinary voters subject to systemic inequality with no recourse. This is a perverse result, given that one of the Convention’s great virtues is its ability to shine light on widespread injustices through the cases of individuals.

Allowing a victim like Mr Kovačević to bring a case does not transform the Court into an abstract constitutional court issuing advisory opinions; it simply acknowledges that when a State’s fundamental arrangements violate Convention principles, any affected person has a right to challenge them. The Court itself has handled such challenges for years in the Bosnian context, knowing full well that the harm is structural. It has even tailored its remedies (as in Baralija, cited above) to spur general reforms. To now declare that an individual in Mr Kovačević’s position is not a “victim” is to relinquish one of the Convention’s key functions: addressing systemic inequalities that deprive people of basic rights. The effectiveness of the Convention is diminished if it cannot respond to entrenched patterns of discrimination. The Grand Chamber’s conclusion in Kovačević risks carving out a broad exception where systemic discrimination is insulated from review unless the applicant fits a narrow profile (for example, a thwarted candidate). That is not consistent with the Convention’s spirit. Human rights violations often arise from systems, not just one-off acts, and the Court’s case-law has gradually recognised positive obligations and structural remedies precisely in order to tackle such issues (for example, addressing systemic segregation in education, endemic violence or, as here, constitutional exclusion).

In sum, the Grand Chamber’s stance that Mr Kovačević lacked victim status under Article 34 is legally unpersuasive and normatively counterproductive. It contradicts decades of case-law equating discrimination in voting rights with discrimination in candidacy rights[45]. It ignores the Court’s practice of permitting individuals to challenge laws that put them at a continual disadvantage[46]. It departs from a line of seminal judgments that found Bosnia and Herzegovina’s ethnic-territorial political carve-outs to violate the Convention[47]. And it neuters the broad guarantee of equal treatment in Protocol No. 12 at the very time it is most needed. If left uncorrected, this reasoning would limit the Convention’s capacity to address systemic inequalities, allowing States to evade accountability for discrimination whenever it is built into the structure of law rather than applied in an isolated decision. Such an outcome not only undermines the “effective and meaningful democracy” that the Convention strives to uphold[48], but also signals to marginalised groups that the Court will not hear their grievances unless they have personally attempted the impossible. For these reasons, there are strong arguments – grounded in the Court’s own case‑law – that the Grand Chamber was wrong to conclude that Mr Kovačević was not a victim. The better view is that every citizen relegated to second-class status by discriminatory constitutional provisions is a victim of that discrimination – and entitled to a remedy under the Convention. The alternative is a regrettable retreat from the Court’s role in securing equal rights for all.

I am certain that many may view the Grand Chamber’s approach as a strategic retreat in the face of a recalcitrant respondent State. More than a decade of non-compliance with Sejdić and Finci put the Court in a difficult position; each new case was simply reconfirming the same breach without any practical results. By declaring Mr Kovačević’s application inadmissible, the Grand Chamber has avoided adding yet another unenforced judgment to the pile. Instead, it has effectively tried to shut the door on further Strasbourg litigation on this issue (at least by voters as opposed to would‑be candidates), thereby putting the onus back on Bosnia and Herzegovina (and the Council of Europe’s political organs) to sort out the problem. This can be seen as a pragmatic move, but it might be criticised as the Court stepping back from defending the right to effective political participation for all citizens in Bosnia and Herzegovina. From a human rights perspective, the systemic discrimination identified in 2009 remains unremedied – yet the Court is now saying that this particular applicant cannot be given a hearing on the merits. There is a tension here: how can we deny that someone is a “victim” when that person is subject to a discriminatory constitutional system recognised as such by the Court’s own case-law? The judgment attempts to resolve this by acknowledging the discrimination in general but distinguishing the applicant’s situation. It notes, almost ruefully, that prior judgments remain unexecuted, but then focuses on technical admissibility criteria to avoid pronouncing again on the merits.

This has led some commentators to speculate that the Court was motivated by considerations beyond pure legal consistency – such as docket management and institutional efficacy, or pure political manipulation. In an analysis of the case, one scholar has observed that a far-reaching ruling in Mr Kovačević’s favour could have emboldened separatist or autonomy movements in other countries, or led to numerous follow-up claims elsewhere[49].

While it is true that the Court is a mere reflection of the wider political landscape in Europe, what is more worrying is that this is leading to the core principles of the Convention and its own case-law being abandoned. Why?

Abuse of the right of petition

There are several observations submitted by the acting Agent concerning an alleged abuse of the right of petition.

(a) Allegedly erroneous submissions concerning the constitutional and political structure of Bosnia and Herzegovina

This argument is completely baseless. The mere fact that the applicant’s view of the constitutional and political structure of Bosnia and Herzegovina is different from the view of some political actors in Bosnia and Herzegovina is not sufficient for this argument to even be discussed. Instead, it shows an intention to use any possible opportunity to “kill” the case on formal grounds.

(b) Alleged commenting on the Chamber judgment in the media before its delivery

After carefully rewatching the political show in which the applicant commented on the possible outcome of the proceedings before the Court, I have found no statement showing that the applicant knew the contents of the judgment. Apart from that, there is nothing in his statements that anyone could find offensive or that in any way went beyond a normal civil conversation such as to attract anyone’s attention.

(c) Allegedly slanderous comments regarding the Government Agents, and

(d) Allegedly deliberate concealment of key information regarding the applicant’s ethnic affiliation, thus leading the Court to regard him as part of the group of “Others”

There is nothing slanderous in the applicant’s comments regarding the Government’s Agents. There is also nothing relating to “inter-ethnic and intercommunal tensions”. Nothing of the sort can be found in the applicant’s letters or statements. Instead, they contain consistent complaints about the acting Agent’s legitimacy, which is a purely legal argument.

On the contrary, the attitude of the acting Agent was problematic in my view. The Agent’s first suggestion, which was even made during the Chamber proceedings, was that the applicant, if he wished to vote in another Entity, should, for voting purposes, simply register in that Entity as a resident and vote there[50]. What the Agent was suggesting was to break the law, since a false change of residence is punishable by a fine of approximately 250 euros. It is scandalous that a State institution should suggest breaking the law. The applicant’s reply to this “suggestion” was his statement that the Agent was thereby encouraging “ethnic cleansing”, which could have been considered offensive if taken outside the specific context of Bosnia and Herzegovina. The real context of his comment, however, was the consequences of “brutal conflict marked by genocide and ‘ethnic cleansing’”[51]. Ethnic cleansing is the systematic forced removal of ethnic, racial or religious groups from a given area, with the intention of making the society ethnically homogeneous. For the acting Agent to make this suggestion, combined with the persistent emphasis on the applicant’s ethnicity, is rather offensive. An insistence on disclosing information falling under the scope of private life such as ethnicity is something that requires a response not from the applicant but from the acting Agent. The idea that as a result of extremely intrusive decisions, people can be moved to another location for any purpose other than that of establishing their permanent place of residence is very offensive and reminds survivors of the war of such “invitations” made during the war. Only then, this was referred to as “human transfer” for the “benefit” of those moved away from a certain territory. It amounted to ethnic cleansing by moving people of undesired ethnicity to a place where their ethnicity would constitute the majority. This is a war crime, and it has been treated as such. Any suggestion that people should be moved against their own will is not acceptable.

The acting Agent went even further by raising this case with the Embassy of Croatia and asking it to prove that the applicant had “made a declaration of affiliation with the Croat people”. This shows that the acting Agent did not in the first place ask the Embassy to provide information about the applicant’s dual citizenship but about his declaration of affiliation with the Croat people. It seems that the acting Agent is obsessed with the applicant’s ethnicity even though his application has nothing to do with ethnic origin as his complaint made it quite clear that “he [was] not able to elect his political representatives” but was forced to vote along ethnic and territorial lines. By stressing the applicant’s ethnicity, the acting Agent was trying to divert attention from important issues to an irrelevant discussion.

(e) Allegedly defamatory statements regarding the Court’s judges

The applicant’s submissions in response pointed to the media coverage of the case and various comments made concerning certain judges of the Court. The applicant was not connected in any way with those comments, but was simply bringing this information to the Court’s attention.

The applicant’s other submissions, asking for the recusal of the then President of the Court, are different. In his letter of 5 January 2024 (see paragraph 9 of the judgment), he pointed out several issues:

(a) that the media had suggested bias on the part of the then President;

(b) that the then President had disregarded the information provided by the applicant about the status of the acting Agents;

(c) that the then President had disregarded a letter from the co-Chair of the Council of Ministers informing the Court that there was no approval from the Government for the request for the referral of the case to the Grand Chamber;

(d) that the then President had disregarded a letter from a member of the Presidency of Bosnia and Herzegovina explaining that the Government had never approved a request for the referral of the case;

(e) that the then President had met with senior Croatian officials on at least three occasions but had refused the only request for a meeting from the authorities of Bosnia and Herzegovina, namely the Ministry of Human Rights and Refugees[52];

(f) that the then President had made it possible (according to the applicant) to put an inadmissible case on the Grand Chamber panel’s agenda;

(g) that the then President had “apparently” (in the applicant’s words) postponed the deliberations in the panel to persuade other members of the panel to “forward” his case to the Grand Chamber; and

(h) that all the reasons mentioned above were sufficient to recuse the then President from participation in this case.

Let me address each of these submissions in turn.

(a) Undoubtedly the applicant was transmitting this information to the Court without taking any personal position.

(b) Preliminary question: A legal or factual question that must be resolved by the court before the main issue of the case can be addressed, with the following key characteristics:

- it requires a decision on admissibility or jurisdiction and often concerns whether the court has the authority to hear the case or whether certain evidence or claims are admissible;

- it is raised early at the beginning of the proceedings, before the substantive trial begins;

- it can be determinative, which means that in some cases, resolving the preliminary question may end the case altogether (for example, for lack of jurisdiction)[53]. The status of the acting Agent or the authority conferred on him or her by the State is a typical preliminary question that should not be simply disregarded by any judge or any court. It was known to the then President that there might be a question concerning the application of Rule 35 of the Rules of Court, and the Court was obliged to deal with that question as soon as it acquired knowledge of the relevant information.

(c) It is clear that the then President disregarded the letter from the co‑Chair of the Council of Ministers and that this letter was not formally examined in limine litis.

(d) The letter from the member of the Presidency was addressed to different judges without any reaction by the then President.

(e) Information available on the Court’s website concerning the then President’s activities proves this assertion to be true. At the same time there was a request for a meeting from the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, within which the acting Agent operates, and the request was rejected. The visit in question never took place and the Minister on several occasion in his public addresses protested about the attitude displayed by the Court’s then President.

(f) This is a subjective evaluation by the applicant that does not involve any offensive language.

(g) The key word on this point is the word “apparently”, which was used by the applicant and suggests that he had acquired a certain amount of knowledge about the postponement of the panel meeting and probably concluded that this worked against him and his case. The word “apparently”, limiting the correctness of the information submitted, suggests that he had no definite information about what happened and why but drew conclusions based on the information at his disposal.

(h) Finally, the question is: what would you conclude if you had this information and if you truly believed it to be correct? Would you request a recusal?

I found all these arguments completely insufficient to conclude that the applicant abused his right of petition. We should not punish the applicant for putting forward a legal argument in his submissions even if it is supported by unverified information. Such a practice has no comparable support in our case-law. As regards the applicant’s other argument concerning his ethnicity, I have already explained above in relation to his victim status why I consider this question to be completely irrelevant to any discussion as it falls outside the scope of his complaints and is completely unrelated to his application. Concerning the objection that the applicant was seeking the “furtherance of certain political goals through his application” (as formulated in paragraph 139 of the judgment), I would point out that elections are primarily a political process for achieving certain political interests, and proceedings may be brought before different courts concerning disputes arising from the election process. This Court is no different from any other court with different powers. As long as courts are dealing with complaints within their powers and rules, the applicants’ goals are irrelevant from the point of view of the proper administration of justice.

Final thoughts

It is my humble opinion that this judgment is a big mistake which might overshadow the Court’s unquestionable reputation and great achievements from the past. It demonstrates an overly formalistic approach that serves no purpose in protecting human rights in Europe. Quite the contrary; it might encourage those advocating the destruction of the human rights protection system or at least its fragmentation within States’ borders. This should never happen. The Court is too important as an institution securing Europe’s democratic future without discrimination. Nobody should encourage in any way those wishing to destroy this common vision of Europe shared by different but equal citizens/individuals.

[1] Mr Željko Komšić is the Croat member of the tripartite Presidency of Bosnia and Herzegovina elected from the territory of the Federation of Bosnia and Herzegovina. He is also the leader of the Democratic Front Party, which is one of the most prominent multi‑ethnic political parties in Bosnia and Herzegovina.

[2] https://www.parlament.ba/delegate/List?page=1 (last accessed on 25 June 2025).

[3] https://gradskovijece.sarajevo.ba/vijecnik/slaven-kovacevic/ (last accessed on 25 June 2025).

[4] Members of the House of Peoples of the Federation of Bosnia and Herzegovina are appointed by the cantonal assemblies at the Federation. Members of the cantonal assemblies are directly elected. For further information, see paragraphs 39 and 40 of the judgment.

[5] Members of the National Assembly of the Republika Srpska are directly elected. For further information, see paragraphs 41 and 42 of the judgment.

[6] It appears from the information provided on the official website of the Constitutional Court of Bosnia and Herzegovina that as of 25 June 2025, the Constitutional Court had seven members, since the National Assembly of the Republika Srpska did not select the two members from the Republika Srpska.

[7] All citizens of Bosnia and Herzegovina also have the citizenship of the Entity in which they have declared their permanent residence. Since the Brčko District is in the joint ownership (condominium) of the two Entities, its residents are entitled to choose their Entity citizenship.

[8] https://www.izbori.ba/Rezultati_izbora/?resId=32&langId=4#/7/209/0/0/0 (last accessed on 25 June 2025).

[9] See also the 62nd Report of the of the High Representative for Bosnia and Herzegovina issued on 11 February 2023, which covered the general elections of 2 October 2022, where it was noted that “in urban cantons of the Federation of Bosnia and Herzegovina, namely in Sarajevo and Tuzla, a coalition of three multi-ethnic civic parties, the Social Democratic Party, People and Justice (Narod i Pravda) and Our Party (Naša Stranka), achieved good results”.

[10] Judgment of 26 February 2007, ICJ Reports 2007 (I).

[11] Ibid., paragraphs 18-24.

[12] See the press release dated 9 March 2017 issued by the President of the ICJ in relation to this decision at https://www.icj-cij.org/sites/default/files/press-releases/0/000-20170309-PRE-01-00-EN.pdf.

[13] Democratic Front v. Bosnia and Herzegovina, no. 8168/23.

[14] The Democratic Front is one of the most prominent multi-ethnic political parties in Bosnia and Herzegovina. Its leader, Mr Željko Komšić – for whom the applicant works as a political adviser – has been a member of the Presidency of Bosnia and Herzegovina since 2018.

[15] See the Comparative Table on Constituency Delineation and Seat Allocation, the Venice Commission (CDL(2017)023rev, 22 January 2018), available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL(2017)023rev-bil.

[16] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), application for revision of the judgment of 26 February 2007.

[17] Again, the parties to the proceedings were informed about this fact and it was widely publicised in the local media.

[18] There is nothing in the judgment about the notification of inadmissible complaints or the invitation to the various parties to provide their observations on those complaints. As a result, a certain impression was created that was not favourable to the applicant.

[19] Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009; Zornić v. Bosnia and Herzegovina, no. 3681/06, 15 July 2014; Pilav v. Bosnia and Herzegovina, no. 41939/07, 9 June 2016; Pudarić v. Bosnia and Herzegovina [Committee], no. 55799/18, 8 December 2020; Šlaku v. Bosnia and Herzegovina [Committee], no. 56666/12, 26 May 2016; and Baralija v. Bosnia and Herzegovina, no. 30100/18, 29 October 2019.

[20] In that connection, the Constitutional Court of Bosnia and Herzegovina in its well-known decision on constituent peoples (U-5/98, 4th partial decision) explicitly deals with this question, but the approach to the issue in the present judgment shows a misunderstanding of the constitutional situation in Bosnia and Herzegovina.

[21] Citizenship is different from ethnicity.

[22] Special attention was given to the applicant’s alleged misconduct concerning his ethnic affiliation, a matter which is irrelevant to the present case.

[23] See 4th partial decision of the Constitutional Court (U 5/98) on constituent peoples.

[24] See Mathieu-Mohin and Clerfayt, cited above, § 54.

[25] Joseph Marko, “The Kovačević Case Revisited”, Verfassungsblog, 28 March 2024 (verfassungsblog.de).

[26] See Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 57-58, ECHR 2005-IX.

[27] See Oran v. Turkey, nos. 28881/07 and 37920/07, § 57, 15 April 2014.

[28] See United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 44, Reports of Judgments and Decisions 1998-I.

[29] Joseph Marko, “The Kovačević Case Revisited”, cited above.

[30] Ibid.

[31] See Klass and Others v. Germany, 6 September 1978, §§ 32-33, Series A no. 28.

[32] See Zornić, cited above, § 17.

[33] See Šlaku, cited above, §§ 15 and 18.

[34] Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, 9 April 2024 – Articles 6 and 8; Roman Zakharov v. Russia [GC], no. 47143/06, ECHR 2015 – Article 8; Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, 27 November 2023 – Article 11, and so on.

[35] Please note the composition of the Chamber in that case and compare it with the composition in the present case.

[36] See Sejdić and Finci, cited above.

[37] See Pilav, cited above.

[38] See Baralija, cited above, § 55.

[39] All cited above.

[40] See, for example, Šlaku, cited above.

[41] See Sejdić and Finci, Zornić, Šlaku, Pilav, Pudarić, and Baralija, all cited above.

[42] See Pilav, cited above.

[43] See, for example, Šlaku, cited above.

[44] See Klass and Others, cited above, § 34.

[45] See Joseph Marko, “The Kovačević Case Revisited”, cited above.

[46] See Klass and Others, cited above.

[47] See, for example, Pilav, cited above.

[48] See, among other authorities, Hirst, cited above, § 58.

[49] Ernest Petrič, “Specific aspects of the ECHR judgment in Kovačević v. Bosnia and Herzegovina”, IFIMES, 19 November 2024 (ifimes.org).

[50] See paragraph 47 of the Chamber judgment.

[51] See Zornić, cited above, § 43.

[52] The acting Agents operate under that Ministry.

[53] See definitions of “preliminary question” from the Legal Information Institute, LexisNexis, and Directory of Open Access Journals.