FOURTH SECTION
CASE OF KOVAČEVIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 43651/22)
 
JUDGMENT
 
Art 1 P12 • Prohibition of discrimination • Inability of applicant due to combination of territorial and ethnic requirements, to vote for candidates of choice in legislative and presidential elections at State level • Applicant not affiliated with one of the constitutionally defined “constituent peoples” or with any other ethnic group • Discriminatory treatment on grounds of ethnicity and place of residence • Current arrangements excluding certain citizens from the House of Peoples on ethnicity grounds amplified ethnic divisions and undermined democratic character of elections • Reform of the domestic electoral system, based on the concept of the “constituent peoples”, an outstanding post-accession obligation of joining the Council of Europe • “Constituent peoples” enjoying a privileged position in the current political system and not in the factual position of an endangered minority • Applicant not genuinely represented in the collective Presidency • No one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint
 
STRASBOURG
29 August 2023
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 25/06/2025
 
This judgment may be subject to editorial revision. In the case of Kovačević v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Armen Harutyunyan,
 Ana Maria Guerra Martins,
 Anne Louise Bormann, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the 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 national of Bosnia and Herzegovina, Mr Slaven Kovačević (“the applicant”), on 30 August 2022;
the decision to give notice of the application to the Government of Bosnia and Herzegovina (“the Government”);
the parties’ observations;
Having deliberated in private on 30 May and 20 June 2023,
Delivers the following judgment, which was adopted on that 
last-mentioned date:
INTRODUCTION
1. The present case concerns the right to vote of citizens of Bosnia and Herzegovina who do not declare affiliation with any “constituent people” in legislative and presidential elections at the State level. It raises issues under Article 14 of the Convention, Article 3 of Protocol No. 1 and Article 1 of Protocol No. 12. The applicant also relied on Articles 13 and 17 of the Convention. THE FACTS
2. The applicant was born in 1972 and lives in Sarajevo. On 7 March 2023 he was granted leave to present his own case in the proceedings before the Court under Rule 36 § 2 in fine of the Rules of Court. 3. The Government were represented by one of their acting Agents, Ms H. Bačvić. 4. The Constitution of Bosnia and Herzegovina (“the Constitution”) is an annex to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Agreement”), initialled at Dayton on 21 November 1995 and signed in Paris on 14 December 1995. In accordance with the Constitution, Bosnia and Herzegovina consists of two Entities – the Federation of Bosnia and Herzegovina (“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 (see Article VI § 4 of the Constitution, as amended in 2009). 5. The Constitution makes a distinction between “constituent peoples” (Bosniacs[1], Croats[2] and Serbs[3]) and “Others and citizens of Bosnia and Herzegovina” (members of ethnic minorities and those who do not declare affiliation with any particular ethnic group because of intermarriage, mixed parenthood, or other reasons). At the State level, power-sharing arrangements were introduced, such as a vital interest veto, an Entity veto, a bicameral system (with a House of Peoples – the second chamber of the State Parliament – composed of five Bosniacs and the same number of Croats from the Federation and five Serbs from the Republika Srpska) and a collective Head of State – the Presidency – comprising three members: a Bosniac and a Croat from the Federation and a Serb from the Republika Srpska (see Articles IV and V of the Constitution, quoted in paragraphs 12 and 13 below). Those arrangements make it impossible to adopt decisions against the will of the representatives of any “constituent people” (for more information, see paragraph 25 below). 6. Only persons declaring affiliation with a “constituent people” are thus entitled to run for the House of Peoples and the Presidency. Moreover, only the voters residing in the Republika Srpska may participate in the election of Serb members of the House of Peoples (through indirect elections) and the Presidency (through direct elections), whereas only the voters residing in the Federation may participate in the election of Bosniac and Croat members of those institutions. In contrast, no ethnic requirements apply in elections to the House of Representatives (the first chamber of the State Parliament). 7. The constitutional provisions pertaining to the ethnic privileges for the “constituent peoples” were not included in the Agreed Basic Principles which constituted the basic outline for what the future Dayton Agreement would contain (see paragraphs 6.1 and 6.2 of the Further Agreed Basic Principles of 26 September 1995). Reportedly, the international mediators reluctantly accepted these arrangements at a later stage because of strong demands to this effect from some of the parties to the conflict (see Nystuen[4], Achieving Peace or Protecting Human Rights? Conflicts between Norms Regarding Ethnic Discrimination in the Dayton Peace Agreement, Martinus Nijhoff Publishers, 2005, pp. 192 and 240-41, and O’Brien[5], The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation, in Zartman and Kremenyuk (eds), Peace versus Justice: Negotiating Forward- and Backward-Looking Outcomes, Rowman & Littlefield Publishers, 2005, p. 105). Fully aware that these arrangements were most probably conflicting with human rights, the international mediators considered it to be especially important to make the Constitution a dynamic instrument and provide for their possible phasing out. Article II § 2 of the Constitution, providing that the rights and freedoms set forth in the Convention and its Protocols had “priority over all other law” (for the full text, see paragraph 10 below), was therefore inserted (see Nystuen, cited above, p. 100). 8. The applicant is a political scientist and a political adviser to a member of the Presidency of Bosnia and Herzegovina. It would appear that he does not declare affiliation with any “constituent people” or with any other ethnic group. Sarajevo, where he lives, is situated in the Federation. The latest legislative and presidential elections at the State level took place in 2022. The applicant complained that because of the combination of the territorial and ethnic requirements mentioned above he had been unable to vote for the candidates of his choice in those elections. He alleged that the candidates best representing his political views were not from the “right” Entity and/or of the “right” ethnic origin. The applicant did not indicate whether he had nevertheless voted for other candidates. RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAW AND PRACTICEConstitution (Annex 4 to the Dayton Agreement)Democratic principles

9. Article I § 2 of the Constitution provides that Bosnia and Herzegovina is a democratic State, which operates under the rule of law and with free and democratic elections. International standards
10. Pursuant to Article II § 2 of the Constitution, the rights and freedoms set forth in the Convention and its Protocols apply directly and have priority over all other law. Responsibilities of the Institutions of Bosnia and Herzegovina
11. The relevant part of Article III of the Constitution reads as follows:
“1. Responsibilities of the Institutions of Bosnia and Herzegovina
The following matters are the responsibility of the institutions of Bosnia and Herzegovina:
(a)  Foreign policy. (b)  Foreign trade policy. (c)  Customs policy. (d)  Monetary policy as provided in Article VII. (e)  Finances of the institutions and for the international obligations of Bosnia and Herzegovina. (f)  Immigration, refugee, and asylum policy and regulation. (g)  International and inter-Entity criminal law enforcement, including relations with Interpol. (h)  Establishment and operation of common and international communications facilities. (i)  Regulation of inter-Entity transportation. (j)  Air traffic control.
... 5. Additional Responsibilities
(a)  Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities; are provided for in Annexes 5 through 8 to the General Framework Agreement; or are necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as necessary to carry out such responsibilities. (b)  Within six months of the entry into force of this Constitution, the Entities shall begin negotiations with a view to including in the responsibilities of the institutions of Bosnia and Herzegovina other matters, including utilization of energy resources and cooperative economic projects.”
Parliamentary Assembly
12. Article IV of the Constitution reads as follows:
“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[6]. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska[7]. (b)  Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb delegates are present. 2. House of Representatives
The House of Representatives shall comprise 42 members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska. (a)  Members of the House of Representatives shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. (b)  A majority of all members elected to the House of Representatives shall comprise a quorum. 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 l (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. (g)  The House of Peoples may be dissolved by the Presidency or by the House itself, provided that the House’s decision to dissolve is approved by a majority that includes the majority of delegates from at least two of the Bosniac, Croat, or Serb peoples. The House of Peoples elected in the first elections after the entry into force of this Constitution may not, however, be dissolved. (h)  Decisions of the Parliamentary Assembly shall not take effect before publication. (i)  Both chambers shall publish a complete record of their deliberations and shall, save in exceptional circumstances in accordance with their rules, deliberate publicly. (j)  Delegates and members shall not be held criminally or civilly liable for any acts carried out within the scope of their duties in the Parliamentary Assembly. 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.”
Presidency
13. Article V of the Constitution provides:
“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. The first election, however, shall take place in accordance with Annex 3 to the General Framework Agreement. Any vacancy in the Presidency shall be filled from the relevant Entity in accordance with a law to be adopted by the Parliamentary Assembly. (b)  The term of the members of the Presidency elected in the first election shall be two years; the term of members subsequently elected shall be four years. Members shall be eligible to succeed themselves once and shall thereafter be ineligible for four years. 2. Procedures
(a)  The Presidency shall determine its own rules of procedure, which shall provide for adequate notice of all meetings of the Presidency. (b)  The members of the Presidency shall appoint from their members a chair. For the first term of the Presidency, the chair shall be the member who received the highest number of votes. Thereafter, the method of selecting the chair, by rotation or otherwise, shall be determined by the Parliamentary Assembly, subject to Article IV § 3. (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 organisations and institutions and seeking membership in such organisations 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.”
Amendments to the Constitution
14. Article X of the Constitution provides as follows:
“1. Amendment Procedure
This Constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives. 2. Human Rights and Fundamental Freedoms
No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph.”
On 26 March 2009 the Parliamentary Assembly successfully amended the Constitution for the first time, in accordance with the above procedure. The amendment at issue concerned the status of the Brčko District. Constitutional Court’s case-law
(a)   As to the issue of the “constituent peoples”
15. In its landmark case no. U 5/98, the Constitutional Court adopted four partial decisions declaring that certain provisions of the Entity Constitutions of the Republika Srpska and the Federation were not in accordance with the Constitution of Bosnia and Herzegovina. In particular, in the third partial decision of 1 July 2000 it held that in accordance with the Preamble to the Constitution of Bosnia and Herzegovina, all three constituent peoples were constituent and equal throughout the country and that it was not possible to divide the country into one Entity in which two of these peoples were constituent and another Entity in which the third people was constituent. Accordingly, it declared unconstitutional the description of the Republika Srpska as “the State of the Serb people and of all its citizens” in Article 1 of the Constitution of that Entity and the wording “Bosniacs and Croats as constituent peoples, along with Others” in Article 1 of the Constitution of the Federation. The Constitutional Court distinguished the case before it from Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, Series A no. 113), on the following grounds:
“119. In the case Mathieu-Mohin and [Clerfayt] v. Belgium the majority of the European Court of Human Rights ruled that Article 3 of the First Protocol to the [Convention] was not violated as the French-speaking electors in the Halle-Vilvoorde district were ‘in no way deprived’ of the right to vote and the right to stand for election on the same legal grounds as the Dutch-speaking electors ‘by the sheer fact that they must vote either for candidates who will take the parliamentary oath in French and will accordingly join the French-language group in the House of Representatives or the Senate and sit on the French Community Council, or else for candidates who will take the oath in Dutch and so belong to the Dutch-language group in the House of Representatives or the Senate and sit on the Flemish Council’. ... 120. It could thus be argued that there is no violation of Article 3 of the First Protocol if a Croat voter has to cast his/her vote for a Bosniac or Serb candidate and vice versa. However, there is at least one striking difference in the electoral mechanisms of Belgium on the one hand and the Federation of Bosnia and Herzegovina on the other, particularly as far as the right to stand as a candidate is concerned. The Belgian system does not exclude per se the right to stand as a candidate solely on grounds of language. Every citizen can stand as a candidate, but must – upon his/her choice – decide whether he/she will take the oath in French or in Flemish. It is therefore the subjective choice of each individual candidate whether to take the oath in French or in Flemish and thereby to ‘represent’ a specific language group, whereas provisions of the Constitution of the Federation of Bosnia and Herzegovina provide for a priori ethnically defined Bosniac and Croat delegates, caucuses and veto powers for them.”
(b)   As to the legal provisions excluding persons who do not declare affiliation with “constituent peoples” from public functions
16. When provisions excluding persons who do not declare affiliation with “constituent peoples” from public functions are included in the State Constitution (such as Articles IV §§ 1 and 3 (b) and V of the Constitution, quoted in paragraphs 12-13 above), the approach of the Constitutional Court has not always been consistent. In decisions nos. U 5/04 of 31 March 2006 and U 13/05 of 26 May 2006 it held that the Convention did not have priority over the State Constitution and that it lacked jurisdiction to rule whether the State Constitution was in conformity with the Convention, although a request to that effect had been submitted by a person authorised to seek an abstract review of constitutionality (a member of the Presidency). The relevant parts of decision no. U 5/04 read as follows (bold added):
“The request lodged by Mr. Sulejman Tihić, the Chair of Presidency of Bosnia and Herzegovina at the time of filing the request, for a review of conformity of Articles IV(1), IV(1)(a), IV(3)(b) and V(1) of the Constitution of Bosnia and Herzegovina with Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as with Article 3 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms is rejected as inadmissible because the Constitutional Court of Bosnia and Herzegovina is not competent to take a decision.
... In view of the applicant’s allegations, it appears that he requests examination of conformity of certain provisions of the Constitution of Bosnia and Herzegovina with the European Convention and its Protocols. Therefore, the Constitutional Court must establish whether it is competent to examine constitutional provisions to establish their compatibility with the European Convention. Admissibility of the present request depends primarily upon the relation between the Constitution of Bosnia and Herzegovina and the European Convention. The status of the European Convention stems from Article II(2) of the Constitution of Bosnia and Herzegovina which clearly states that the rights and obligations provided for by the European Convention are directly applicable in Bosnia and Herzegovina. This provision points to the general phenomenon of the internalisation of the domestic legal system in Bosnia and Herzegovina. It follows from the case-law of the European Court of Human Rights that the domestic law must meet the requirements stipulated by the European Convention. According to Article VI(3) of the Constitution of Bosnia and Herzegovina, the Constitutional Court ‘shall uphold this Constitution’. In order for the Constitutional Court to uphold the Constitution of Bosnia and Herzegovina, it may refer to the text of that Constitution and to the European Convention which derives also from Article VI(3)(c) of the Constitution of Bosnia and Herzegovina. In order to establish jurisdiction of the Constitutional Court under Article VI(3)(a) of the Constitution of Bosnia and Herzegovina, it is necessary to establish that there is ‘a dispute’ within the meaning of this constitutional provision. The present case does not involve ‘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’ but a possible conflict between international and domestic law. In addition, where as in the present case an examination of conformity of certain provisions of the Constitution of Bosnia and Herzegovina with the European Convention is requested, the Constitutional Court notes that the rights under the European Convention cannot have a superior status to the Constitution of Bosnia and Herzegovina. The European Convention, as an international document, entered into force by virtue of the Constitution of Bosnia and Herzegovina, and therefore the constitutional authority derives from the Constitution of Bosnia and Herzegovina and not from the European Convention itself. Although the Constitution of Bosnia and Herzegovina does not expressly provide for the Constitutional Court’s jurisdiction as to the interpretation of the Constitution, it is clear that the Constitutional Court cannot exercise its jurisdiction unless it has first interpreted the relevant constitutional provisions and the provisions of the law subject to abstract review by the Constitutional Court on a request lodged with the Constitutional Court, as well as the provisions relating to its own jurisdiction. The Constitutional Court must always adhere to the text of the Constitution of Bosnia and Herzegovina, which in the present case does not allow for wider interpretation of its jurisdiction, in view of the obligation of the Constitutional Court to ‘uphold this Constitution’. In light of the aforesaid, the Constitutional Court concludes that it falls out of the scope of its competence to decide in the present case on the conformity of certain provisions of the Constitution of Bosnia and Herzegovina with the European Convention and its Protocols.”
The relevant part of decision no. U 13/05 reads as follows (bold added):
“Consequently, although the subject matter of the case at hand is not a review of conformity of the provisions of the Constitution of Bosnia and Herzegovina but of the Election Act, it cannot be ignored that the challenged provision of the Election Act, de facto, derives fully from the provisions of Article V of the Constitution of Bosnia and Herzegovina, which remove any doubts as to its unconstitutionality.

Outcome for Article P12-1: violation