Legal expert Enver Išerić spoke for Klix.ba about the importance of the judgment of the European Court of Human Rights in the case “Kovačević v. Bosnia and Herzegovina” and what is the connection between the judgments of the Constitutional Court and the court in Strasbourg.
At the beginning of the conversation, he explained the difference between the two court instances.
“The Constitutional Court of Bosnia and Herzegovina makes its decisions on the basis of the Constitution of Bosnia and Herzegovina. It is obliged to protect the Constitution and its constitutional provisions. However, the European Court of Human Rights establishes a violation of the rights of citizens or individuals in a certain state. We received the sixth judgment of the European Court of Human Rights, which it is determined that the electoral system in BiH is discriminatory. The electoral system is defined by the Constitution of BiH and the Election Law,” said Išerić.
He explains that the Constitutional Court, even if the verdict is final, would not respond positively to a potential appeal before it by any other appellant with the same reasons presented by Kovačević before the European Court. That is, he would not declare unconstitutional the discriminatory provisions of the Constitution and the Election Law of Bosnia and Herzegovina established by the judgment.
“Because there are those provisions in the Constitution. It is clearly specified, for example, three members of the Presidency are elected from among the constituent nations, one Serb from Republika Srpska and one Croat and Bosniak from the Federation of Bosnia and Herzegovina. That is a constitutional provision. Changing that part is the competence of the Parliamentary Assembly BiH to amend the Constitution in the procedure prescribed by the Constitution,” Išerić said.
By ratifying the European Convention on Human Rights in 2002, Bosnia and Herzegovina accepted the competence of the European Court of Human Rights to decide on the requests of individuals who claim or believe that they are victims of violations of the rights established by the Convention, and committed by BiH.
“As a state, we are obliged to eliminate discrimination and to amend our electoral system, i.e. the Constitution and the Election Law of BiH in order to provide the same rights to everyone in BiH. This verdict in the ‘Kovačević’ case is specific in that it is established that his the right to vote for members of the Presidency and delegates in the House of Peoples of the PS BiH,” said Išerić.
Earlier cases before the court in Strasbourg were initiated due to the impossibility of running for the Presidency and the House of Peoples of Bosnia and Herzegovina, and not voting for individual candidates.
“The validity period of the Dayton Peace Agreement, i.e. Annex 4 (Constitution of BiH), has expired. We must carry out a thorough reform of the constitutional system and provide all citizens with equal rights. There must be no discussions about the so-called legitimate representation, especially for the members of the Presidency of BiH. Important is to note that our constitutional order was established by violence, an external attack on our country. That violence resulted in the Dayton Agreement,” said Išerić.
