Legal summary
June 2025
Kovačević v. Bosnia and Herzegovina [GC] - 43651/22
Judgment 25.6.2025 [GC]
Article 34
Victim
Discrimination complaints on account of the inability to vote for candidates of choice in legislative and presidential elections due to a combination of ethnic and territorial requirements of an actio popularis nature: preliminary objection upheld
Article 35
Article 35-3-a
Abuse of the right of application
Highly reproachable conduct on the applicant’s part in the Grand Chamber proceedings: preliminary objection upheld
Facts – The applicant is a dual national of Bosnia and Herzegovina and Croatia and lives in Sarajevo which is situated in the Federation. In accordance with the Constitution of Bosnia and Herzegovina (“the Constitution”/ “the State Constitution”), only persons declaring affiliation with one of the country’s three “constituent peoples” (Bosniacs, Croats and Serbs) are entitled to stand for election to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina (the second legislative chamber of the Parliamentary Assembly of Bosnia and Herzegovina – “the House of Peoples” or “the State House of Peoples”) and the Presidency of Bosnia and Herzegovina. Moreover, only the voters residing in the Republika Srpska may participate in the selection or election of Serb members of the House of Peoples (indirectly) and the Presidency (through direct elections), whereas only the voters residing in the Federation may participate in the selection or election of Bosniac and Croat members of those State bodies (indirectly in respect of the members of the House of Peoples, and directly for the Presidency). In contrast, no ethnic requirements apply in elections to the House of Representatives (the first chamber of the State Parliament).
The applicant did not provide any information in the proceedings before the Court as regards his ethnic affiliation.
When he lodged his application with the Court, the applicant complained that the ethnic and territorial requirements governing the elections to the House of Peoples, 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. Subsequently, he raised the same complaint under Article 1 of Protocol No. 12 to the Convention. The applicant further complained of a violation of that provision on the same grounds in respect of elections to the Presidency.
On 29 August 2023 a Chamber of the Court found, by six votes to one, a violation of Article 1 of Protocol No. 12 in respect of the complaints both about the composition of the House of Peoples and the elections to 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 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.
On 14 December 2023 the case was referred to the Grand Chamber at the Government’s request.
On 25 June 2025 the Court delivered the operative part of its ruling in the case.
Law –
(1) Preliminary issues –
(a) Authority of the acting Agents to represent the respondent Government before the Court – On the day the Government’s three acting Agents had 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. He had mainly argued that their mandate had expired prior to the lodging of his application; accordingly, the request for the referral of the case to the Grand Chamber had been submitted by unauthorised individuals. The applicant further claimed that, in any event, the Council of Ministers had not been vested with the authority to appoint those Agents before the Court.
The Court noted that in the absence of any communication from the Government concerning the termination of those Agents’ appointment by the Council of Ministers, they had formally maintained their status as Government representatives for the purposes of Rule 35 of the Rules of Court during the Chamber proceedings as well as at the time of the lodging of the referral request. Moreover, their authority had remained unchallenged throughout that period. The applicant’s arguments were not based on new developments that followed the delivery of the Chamber judgment but had been equally applicable during the Chamber proceedings. Accordingly, those arguments did not only call into question the Agents’ authority to submit the referral request, but also had the effect of contesting, in a retrospective manner, their mandate’s validity throughout the entirety of the Chamber proceedings. As such, the applicant should have raised those arguments at the outset of those proceedings, and in any event prior to the delivery of the Chamber judgment; it did not appear that he had been objectively prevented from doing so. The Court stressed in that 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, had been published in the Official Gazette and had therefore been readily available in the public domain at the time of the Chamber proceedings.
Any doubts or objections regarding the status of an individual to act as a Government representative before the Court had to be raised in limine litis, in so far as the circumstances permitted. Allowing the applicant to challenge the authority of the acting Agents in question at this 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.
Moreover, there had been no official decisions in the meantime 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; she had thus maintained her status as the Government’s representative in the proceedings before the Grand Chamber.
Accordingly, the Court considered that the Grand Chamber and its panel had been properly seised by acting Agents who had enjoyed the authority to seek the referral of the case and that the respondent State had been duly represented in the proceedings for the purposes of Rule 35. Any actual procedural irregularity pertaining to the status of the acting Agents under domestic law remained an internal matter that fell to be resolved within the domestic legal system.
Conclusion: applicant estopped from raising this objection before the Grand Chamber.
(b) The Court’s competence to entertain the present application – 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 their view external challenges to that complex constitutional architecture risked reopening inter-community conflict. That argument related to a matter which went to the Court’s 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. Although the Court was mindful of the highly sensitive nature of the issues at stake which concerned the respondent State’s political and constitutional foundational structures put in place by an international peace agreement to end a tragic conflict, under the Vienna Convention on the Law of Treaties, a State could not invoke its domestic law, including the Constitution, as justification for its alleged failure to respect its international-law commitments. Moreover, the political interests at stake did not suffice to deprive the relevant issues of their character as legal questions.
In the present case, the questions raised were, in principle, of a legal nature. The Court’s past rulings in the Sejdić and Finci group of cases (Sejdić and Finci v. Bosnia and Herzegovina [GC]), where it had pronounced upon 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, stood as evidence that judicial adjudication on those issues was 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.
The Court accordingly had jurisdiction to entertain the applicant’s complaints in so far as referred to the Grand Chamber.
Conclusion: respondent Government’s objection dismissed.
(c) Scope of the case before the Grand Chamber – Bearing in mind the Chamber’s findings, the scope of the “case” as referred to the Grand Chamber encompassed the applicant’s discrimination complaints under Article 14 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. As the Chamber had declared the complaint under Article 3 of Protocol No. 1 inadmissible, its examination fell outside the scope of the case referred to the Grand Chamber; any discussion would be limited to the complaint insofar it had been raised in conjunction with Article 14. Furthermore, the applicant’s complaint, concerning the amendment of certain electoral rules on the day of the general elections of 2 October 2022 (“2022 general elections”), which the Constitutional Court had upheld as lawful, constituted a new and distinct complaint which fell outside the scope of the case before the Grand Chamber.
Conclusion: complaint under Article 3 of Protocol No. 1 regarding the indirect nature and the lack of electoral legitimacy of the elections to the House of Peoples and the amendment of certain electoral rules on the day of the 2022 general elections fell outside the scope of the case referred to the Grand Chamber (sixteen votes to one).
(2) The Government’s preliminary objections –
(a) Abuse of the right of individual application – There was insufficient evidence to support the Government’s allegations that the applicant had made erroneous submissions on the structure of Bosnia and Herzegovina and comments in the media on the Chamber judgment prior to its delivery. As regards the latter, the information available did not enable the Court to conclude with any certainty that the applicant had manifested an irresponsible and frivolous attitude towards the proceedings before it prior to the judgment’s delivery, such as to warrant rejecting his application as an abuse of the right of application.
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 noted with regret that he had indeed made certain remarks and accusations relating to the Court’s judges and the other parties to the case which appeared problematic.
In that connection, the remarks he had made directly in a letter requesting the recusal of the Court’s then President contained very serious accusations challenging her integrity and, indirectly, that of the members of the Grand Chamber panel who had decided on the referral request. The accusations that had been made in that letter clearly exceeded the bounds of legitimate criticism and, in the absence of any proof, involved gratuitous attacks. What was more, the fact that those unsubstantiated accusations and offensive remarks had directly targeted the Court’s then President, in the very performance of her duties as President, had special significance, as she represented the Court as an institution. By attacking her so disdainfully, the applicant had shown disrespect to the very institution to which he had applied for the protection of his rights.
The Court likewise considered that statements made by the applicant targeting the Government’s acting Agents and the High Representative for Bosnia and Herzegovina had amounted to gratuitous personal attacks and malicious accusations that had overstepped the bounds of admissible criticism. While the Court did not see a problem as such with the applicant’s challenges to the acting Agents’ legal status, to the extent that those challenges had also involved public statements declaring an intention to bring criminal charges against them in the event of their further involvement in the proceedings before the Court, they had undeniably entailed intimidation, which could hardly be reconciled with the purpose of the right of individual application.
Lastly, with regard to the Government’s assertion that the applicant had withheld key information from it regarding his ethnic affiliation as Croat, the Court observed that while the applicant had admitted to possessing Croatian nationality, he had 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. The non-disclosure by the applicant of his ethnic affiliation as Croat did not involve an element of abuse of the right of application. However, the Court took note of the evidence provided by the Government 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. His 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 a printout of the webpage in question to the Court in which the “ethnicity” field was blank (as proof of the inaccuracy of the Government’s allegations regarding his ethnicity) was to be considered deceptive regarding a matter of potential relevance to the case.
In conclusion, the applicant had clearly engaged in some highly reproachable conduct during the present proceedings in abuse of the right of application within the meaning of Article 35 § 3 (a).
Conclusion: preliminary objection as to the abuse of the right of application upheld (sixteen votes to one).
(b) The applicant’s victim status and the applicability of the relevant provisions of the Convention and the Protocols thereto – The Government argued that the applicant could neither be considered a “victim” within the meaning of Article 34, nor did the matters that he had complained of relate to the protection of an individual right falling within the scope of the Convention and the Protocols thereto. While those objections related to two distinct admissibility issues, they were closely connected in the specific context of the case and essentially converged on the same underlying assertion that the applicant’s complaints constituted an abstract challenge to the constitutional and electoral system of an actio popularis nature, which did not on the present facts relate to the protection of any individual rights under the Convention or the Protocols thereto. The discussion therefore pertained primarily to the question of “victim status” under Article 34.
(i) Preliminary remarks regarding the nature and content of the applicant’s discrimination complaint – The Court found that the applicant’s complaints lacked the requisite precision and consistency. They flitted between different aspects of the electoral system which he deemed problematic, with a constantly fluctuating emphasis on the matter underlying his discrimination complaint. On the one hand the applicant had claimed that the relevant constitutional provisions had entailed discrimination on both an ethnic and a territorial basis, and on the other hand he had stressed that his ethnic affiliation was of no relevance to his case and had failed to explain how he was disadvantaged by reason of his ethnic affiliation. At the same time, he had 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 that the ethnic and territorial requirements of which he had 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 defied the very logic of a complaint of discrimination, which required a difference in treatment between comparable groups.
It was not the Court’s duty to substitute itself for the applicant and surmise possible complaints from among an array of different arguments and facts advanced that raised potential Convention issues. That general rule became 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. That being said, given the applicant’s express submissions, albeit at the Court’s prompting, regarding the “comparator group” at issue, the Court was prepared to accept that the thrust of his discrimination complaints had 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 would therefore be principally guided by the comparator group and the ground of distinction thus put forward by the applicant.
(ii) Victim status in respect of the complaints regarding elections to the House of Peoples – The applicant’s complaints, lodged prior to the 2022 general elections, had not related to any particular measures that had been directed at him as a voter personally, but had concerned certain constitutional and legislative provisions that pertained to the general organisation of the electoral system and that allegedly discriminated against him on the basis of his “residence”.
According to the Chamber, which had examined the question of the applicant’s victim status solely from the standpoint of Article 1 of Protocol No. 12, the applicant’s eligibility to vote in elections to a cantonal assembly and thus, indirectly, in elections to the State House of Peoples had been sufficient to establish his victim status in respect of the discrimination complaints raised in relation to that second legislative chamber. In the Grand Chamber’s view, that finding had been couched in very general terms and had 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 had a direct and personal discriminatory impact on him. The Grand Chamber disagreed with that approach, which it considered would enable the Court to examine any domestic electoral law in the abstract and would thus fall foul of the rule against actio popularis. For the same reason, the fact that the applicant was subject to the legislative authority of the House of Peoples, like all citizens of Bosnia and Herzegovina, was 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 had to be carried out on the basis of the specific complaints raised by the applicant.
Nor might the applicant be recognised as having victim status simply by virtue of the Court’s findings in the Sejdić and Finci group of cases. Although the electoral rules he had referred to were the same as those that had been found in that group of cases to breach Article 14, in conjunction with Article 3 of Protocol No. 1, and Article 1 of Protocol No. 12, the present case differed significantly in that it challenged 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.
While both the active and passive aspects of the right to vote served, 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, they were intended to protect different interests, were different in their scope, entailed different requirements and might be subject to different limitations. An act infringing the rights of persons wishing to stand for election did not necessarily render the users of the active right to vote victims on the same or related grounds, even if their interests might also have been affected to some degree. For the victim status of voters to be established, they had to 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 claimed to have sustained in their capacity as voters on account of the rules at issue.
The applicant had 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 him and given his identification of the “comparator group” as the voters resident in the Republika Srpska, it appeared 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 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.
The Court considered, however, that those arguments did not contain any substantiated element of discriminatory treatment directly and personally affecting the applicant, whether at the individual or the group level.
The separation of Bosnia and Herzegovina into different electoral units along Entity lines for the purposes of the composition of the House of Peoples was because of its highly decentralised and uniquely complex constitutional structure embedded in an international peace agreement. In that structure, the voters found themselves in materially different situations as residents of distinct Entities; yet from a territorial perspective, both Entities enjoyed representation in the House of Peoples and all eligible citizens in those Entities participated indirectly in the election process. In so far as the applicant complained of his inability to take part in the election process in the other Entity and called for the electoral system to function on the basis of a single electoral, he was 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.
The Court could 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 could it compare in the abstract the way the elections were administered in each of the Entities, as dictated by their specific constitutional design. Its task was limited to determining whether the impugned rules had a direct and personal discriminatory impact on the applicant. The Convention protection mechanism, which guaranteed individual rights, would only be set in motion if convincing evidence of such a direct and personal link might be established between the relevant legal framework and the obligations or effects weighing on an applicant claiming to be the victim of discrimination, which was precisely what was lacking in the present case. The applicant’s claims instead entailed 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, 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 had been 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. The Court had been provided with no basis on which to evaluate how the operation of the voting system in practice had 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 had voted at all in the 2022 legislative elections.
To the extent that the applicant had 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 – the Court considered that the system of conversion of votes into political mandates was a matter involving complex considerations that did not lend itself to simple comparisons, in particular where indirectly elected (or appointed) second legislative chambers were concerned. 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, was 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 was not at all evident that the two groups were in an analogous position such as to permit the comparison sought by the applicant, given that the difference in the election systems resulted from the stratified constitutional design of the Federation.
Accordingly, rather than alleging a violation of any of his individual rights protected under the Convention and the Protocols thereto, the applicant’s complaints had been intended to effect fundamental and conceptual changes to the constitutional structure and electoral legislation in Bosnia and Herzegovina in a general manner.
(iii) Victim status in respect of the complaints regarding elections to the Presidency – The applicant’s complaints as to the elections to the Presidency entailed some differences from those relating 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 were designed to ensure the representation of different sub-national entities or interest groups in a country, the institution of the Head of State typically represented the interests of the general population and of the State, which was also reflected in the powers conferred on the collective Presidency in Bosnia and Herzegovina. However, for the same reasons noted in the context of the Court’s examination relating to the House of Peoples, neither the direct nature of the vote, nor the nature and scope of the Presidency’s executive powers were sufficient to render the applicant a “victim” of discrimination in respect of any perceived deficiency in the process of elections to the Presidency.
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, the applicant had not provided information on how the impugned electoral rules discriminated against him as a voter.
As noted in the context of the Court’s examination relating to the House of Peoples, voters from both the Federation and the Republika Srpska – who were in materially different situations as residents of different constitutional Entities – were represented in the collective Presidency and were 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 remained 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.
The applicant’s claims thus under this head had also been 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 – The Court did 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. Nor did it deny that the applicant too might have been affected by those rules to some degree. However, particularly in the absence of a sufficient explanation as to how the impugned electoral rules had had a concrete impact on the free expression of his opinion on an equal footing with the other voters with whom he had compared himself, the Court found that the applicant’s claims amounted to an abstract critique of the “state of the law” of an actio popularis nature. His elusiveness in respect of his complaints might 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.
Conclusion: preliminary objection as to lack of victim status upheld 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 complaint relating to the House of Peoples and the Presidency (twelve votes to five).
(See Sejdić and Finci v. Bosnia and Herzegovina [GC], 27996/06 and 34836/06, 22 December 2009, Legal Summary)
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