The current situation in Bosnia and Herzegovina requires caution before making a decision that could be interpreted as delegitimizing the constitutional framework of Bosnia and Herzegovina as a whole, says a letter in the possession of the portal Istraga.ba, which was submitted to the Court in Strasbourg in the context of the Slaven Kovačević case on behalf of High Representative Christian Schmidt.
Although the President of the European Court of Human Rights authorized Schmidt to address the Court as a third party, on the condition that he does not speak about the facts and merits of the case, the High Representative violated this. In the letter that you can read at this link, Schmidt went into the merits of the case Slaven Kovačevic v. BiH several times.
“If it is concluded that this framework can be harmonized with the convention only to the detriment of the mechanisms of separation of powers, it could further undermine the already fragile foundations of BiH,” wrote Schmidt.
In the letter itself, Christian Schmidt refers several times to the dissenting opinion of Austrian judge Gabriela Kucsko-Stadlmayer, who was the only one who voted against the decision to accept Slaven Kovačević’s application. Moreover, Schmidt states that Judge Kucsko “correctly observed” that “proportionality” must be adapted to contexts.
“This case concerns a legally and conceptually different issue, i.e. the supposed right of the elector to choose from an unlimited number of candidates, including cases where all voters, regardless of their ethnicity, have only a “double indirect” right to vote, as Judge Kucsko-Stadlmayer rightly noted on page 18 of her dissenting opinion. It is at least open to debate whether it should be assumed that the same proportionality analysis applies in these different contexts,” Schmidt said, addressing the European Court of Human Rights through a London-based law firm.
At the same time, Schmidt also reviews the views of the judges of the European Court who voted to accept Kovačević’s application. In question is the position that concluded that Slaven Kovačević could not seek legal protection from the Constitutional Court of Bosnia and Herzegovina, because their position is known through the Sejdić-Finci and Zornić cases.
“The Council of the Fourth Department considered that an appeal to the Constitutional Court would be “bound to fail”, in light of certain decisions of the Constitutional Court cited in the Judgment. The High Representative respectfully considers that the Council’s reasoning in this regard is, at the very least, open to serious question, and invites the Grand Council to carefully review Judge Kucsko-Stadlmayer’s analysis on this topic,” stated Schmidt.
As an argument, Schmidt again quotes Judge Kucsko-Stadlmayer stating that she correctly established that “the Constitutional Court of Bosnia and Herzegovina is a very specific institution, different from all other constitutional communities in Europe”.
Therefore, Christian Schmidt asks the European Court of Human Rights not to rule in the Kovačević case, but to refer the applicant to the Constitutional Court of Bosnia and Herzegovina.
“The High Representative believes that it would be premature to definitively conclude that an appeal to the Constitutional Court will not be an effective remedy,” wrote Schmidt.
First, Christian Schmidt scares the judges in Strasbourg that the Kovačević verdict could destabilize Bosnia and Herzegovina.
“If and to the extent that it is necessary to assess whether any interference with the applicant’s rights under Article 14 and/or A1P12 is proportionate, the High Representative invites the Grand Chamber to take into account its assessment of the current political situation in BiH, as stated in its periodic reports to the Secretary-General of the United Nations. As briefly summarized here, reports show that there have been unprecedented attacks on the Dayton Agreement and the territorial integrity, sovereignty and ethnic character of BiH as well as its institutions. The High Representative draws the Court’s attention to his last four reports covering the period since the elections which are the subject of the applicant’s complaint”, stated Chstian Schmidt.
Let us recall that the European Court of Human Rights in Strasbourg ruled that Slaven Kovačević was discriminated against on both ethnic and territorial grounds because he could not elect members of the BiH Presidency from Republika Srpska and delegates from the RS in the House of Peoples of the PS BiH. After that, BiH agents close to the HDZ asked the European Court to review the procedure, referring to the dissenting opinion of the Austrian Gabriela Kucsko-Stadlmayer. The court agreed to reconsider the verdict before the Grand Chamber. Christian Schmidt then intervened in the case, asking to express his opinion. He did not have the consent of the Peace Implementation Council. The court allowed Schmidt to speak, but not to go into the merits of the case. But, as you can see, the High Representative directly cited the separate opinion of the judge from Austria as a relevant position on certain issues in the case.
