Discriminatory treatment in the right to vote in elections in Bosnia and Herzegovina

In the recent case of Kovačević v. Bosnia and Herzegovina (application no. 43651/22, 29.8.2023), the European Court of Human Rights ruled, with six votes to one, that there were violations of Article 1 of Protocol No. 12 (general prohibition of discrimination) of the European Convention on Human Rights. These violations were related to the applicant’s inability to vote for candidates of his choice in legislative and presidential elections at the State level.

The backdrop of the case involves the Constitution of Bosnia and Herzegovina, which categorizes the population into “constituent peoples” (Bosniacs, Croats, and Serbs) and “Others and citizens of Bosnia and Herzegovina.” The power division is apparent in the House of Peoples (the second chamber of the State Parliament), and the Presidency, where representation is determined by ethnicity, limiting the participation of individuals not affiliating with the dominant ethnic groups.

The applicant, a citizen residing in Sarajevo, which is situated in the Federation of BiH, without affiliation to any “constituent people,” argued that his voting choices were restricted in the elections to the Presidency, allowing only candidates declaring affiliation with Bosniacs and Croats. Additionally, individuals not aligning with any “constituent people” were barred from voting for candidates of their choice in legislative elections.

The court acknowledged the historical context shaped by the aftermath of a brutal conflict, where ethnic considerations were deemed necessary for peace. However, it emphasized that the House of Peoples, currently possessing full legislative powers, must represent all segments of society. The court noted that “excluding certain citizens from that chamber on the grounds of their ethnicity, the current arrangements had rendered ethnic considerations and/or representation more relevant than political, economic, social, philosophical and other considerations and/or representation and thus had amplified ethnic divisions in the country and undermined the democratic character of elections.”

Consequently, the European Court of Human Rights concluded a breach of Article 1 of Protocol No. 12, as the combination of territorial and ethnic requirements constituted discriminatory treatment. This violation extended to the right to participate in elections to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, as well as in elections to the Presidency of Bosnia and Herzegovina. The court determined that there was no need to separately examine the admissibility or merits of Article 3 Protocol 1, either alone or in conjunction with Article 14.