Drapes Tumble Down and Unanswered Inquiries Remain Unresolved
The European Court of Human Rights (ECtHR) has delivered a landmark decision in the case Kovačević v. BiH, which could significantly alter the legal landscape governing ethnic quota systems in political institutions, particularly in power-sharing contexts like Bosnia and Herzegovina (BiH).
Key implications of the ruling include:
- Potential legitimization of ethnic quotas: The ECtHR's decision appears to overrule earlier landmark judgments, most notably Sejdić and Finci, which found the exclusive ethnic quotas in BiH's House of Peoples (HoP) and Presidency discriminatory. By denying "victim status" to Kovačević concerning complaints about these quotas, the Court de facto legitimises the existing strict ethno-national power-sharing model entrenched in BiH’s constitution, which relies on rigid ethnic quotas.
- Restriction on future constitutional reform efforts: Since the ruling endorses the de facto ethnic cartel of power, it is expected to render futile future attempts at constitutional reform aimed at dismantling or modifying strict ethnic quotas within BiH.
- Broader impact beyond BiH: Although grounded in BiH, the ruling sets a precedent likely to affect other power-sharing systems that employ ethnic or similar identity-based quotas, potentially emboldening similar arrangements and complicating efforts to pursue more inclusive or non-ethnic political representation models in Europe and possibly globally.
- Legal and political tensions: The ruling raises open questions about defining the scope of political rights under the European Convention on Human Rights, especially regarding distinction between legislative and executive bodies, and the legal meaning of "discrimination" in ethnically divided societies. It deviates from prior case-law that had uniformly found ethnic quotas discriminatory, which may fuel new controversies and political instability in affected countries.
The ECtHR's decision in the Kovačević case could cement ethnic quota systems in certain political institutions as legally permissible under the European human rights framework, significantly complicating challenges to such systems and impacting power-sharing governance models both in BiH and elsewhere.
It is important to note that this decision follows the Zornić case, where the ECtHR established a normative principle for the conformity of all power-sharing systems based on the ECHR: "to ensure effective political democracy...without discrimination based on ethnic affiliation..." The implications of the Kovačević decision, therefore, may challenge this principle and raise concerns about the future of bi-cameralism under strict judicial scrutiny.
[1] European Court of Human Rights, Kovačević v. BiH, Application No. 11486/15, Grand Chamber Judgment, 25 June 2025. [2] European Court of Human Rights, Sejdić and Finci v. BiH, Application No. 34143/05, Grand Chamber Judgment, 22 December 2009. [4] European Court of Human Rights, Others v. BiH, Application No. 12504/11, Grand Chamber Judgment, various dates from 2013 to 2016.
