DISSENTING OPINION OF JUDGE KUCSKO-STADLMAYER

1. I regret that I was not able to vote with the majority in favour of the admissibility of the applicant’s complaints under Article 1 of Protocol No. 12.

2. Under this Protocol, the applicant, a citizen of Bosnia and Herzegovina, challenged the electoral legislation as enshrined in the Constitution and the Election Act of this State. He did not contest that he had the right to vote. However, he complained about “the composition of the House of Peoples ... and the Presidency of Bosnia and Herzegovina” (see the titles above paragraphs 28 and 63 and point 1 of the operative part of the judgment). He alleged that the composition of those bodies restricted his “right to vote” for them (see paragraphs 1 and 42 of the judgment), as it reflected constitutional privileges for candidates who declared affiliation with one of the three “constituent peoples” (namely Bosniacs, Croats and Serbs). He did not declare affiliation with any of these peoples and called Bosnia and Herzegovina an “ethnocracy” (as opposed to a “genuine democracy”) which allowed the “three dominant ethnic groups” to control the State institutions, whereas “all the others, like himself, were second-class citizens with no real influence on the political life and future of the country” (see paragraph 44 of the judgment).

3. For the first time before this Court, an individual voter has claimed that his (active) right to vote is automatically restricted by the constitutional provisions which regulate the (passive) right to stand for election in Bosnia and Herzegovina. These complaints are different from those raised by the applicants in Sejdić and Finci v. Bosnia and Herzegovina [GC] (nos. 27996/06 and 34836/06, 22 December 2009), Zornić v. Bosnia and Herzegovina (no. 3681/06, 15 July 2014), Šlaku v. Bosnia and Herzegovina (no. 56666/12, 26 May 2016), Pilav v. Bosnia and Herzegovina (no. 41939/07, 9 June 2016) and Pudarić v. Bosnia and Herzegovina (no. 55799/18, 8 December 2020), where the applicants had been potential candidates and successfully complained about restrictions on their right to stand for election.

4. The deep structural differences between the right to vote and the right to stand for election, as well as the respective regulatory framework, are not only enshrined in many of the member States’ constitutions. They also follow from the Court’s rich case-law on Article 3 of Protocol No. 1 to the Convention (see Mathieu-Mohin and Clerfayt v. Belgium , 2 March 1987, §§ 51-52, Series A no. 113; Melnychenko v. Ukraine , no. 17707/02, §§ 54 and 57, ECHR 2004-X; Ždanoka v. Latvia [GC], no. 58278/00, § 115, ECHR 2006-IV; Etxeberria and Others v. Spain , nos. 35579/03 and 3 others, § 50, 30 June 2009; and Davydov and Others v. Russia , no. 75947/11, § 286, 30 May 2017). Nevertheless, in the context of Protocol No. 12 the majority equate both rights by presuming that the Court’s findings in its past judgments about the right to stand for election can automatically, without further explanation, be applied to the present case. The problems of this equation already become visible in the examination of two essential admissibility requirements: exhaustion of domestic remedies and victim status (Article 34 and Article 35 § 1 of the Convention).

5. A basic requirement for any application before the Court is that all domestic remedies have been exhausted (Article 35 § 1 of the Convention). In the present case, the Government argued that the applicant should have complained to the Central Electoral Commission, and could then have lodged an appeal with the Court of Bosnia and Herzegovina and finally applied to the Constitutional Court (see paragraph 29 of the judgment). However, the applicant has not pursued any of these remedies, without explaining this omission. He has therefore not offered the Constitutional Court the opportunity to decide his case.

6. As the Court has held in previous judgments concerning Bosnia and Herzegovina, the Constitutional Court of this country has broad jurisdiction in constitutional matters. It can deal with practically any allegation of a breach of the European Convention on Human Rights (Article VI of the Constitution; see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, § 36, 27 May 2008, and also Čović v. Bosnia and Herzegovina , no. 61287/12, §§ 16 and 18-20, 3 October 2017). It can declare any law of the State unconstitutional and order the Parliamentary Assembly to harmonise constitutional provisions with the Convention. The Convention “shall apply directly” and has explicit “priority over all other law” (Article II.2 of the Constitution). The same priority is also given to the Protocols to the Convention in so far as they have been ratified by Bosnia and Herzegovina, including Protocol No. 12. The Constitutional Court’s decisions are final and binding on every legal and physical person (see Bobić v. Bosnia and Herzegovina , no. 26529/10, § 15, 3 May 2012). In one of its most recent decisions, the Constitutional Court examined on the merits a complaint of a violation of Article 1 of Protocol No. 12 on account of legal and constitutional provisions in electoral matters (see Komšić and Džaferović , U-27/22, 23 March 2023), thereby accepting its jurisdiction to review even constitutional provisions against the standard of Protocol No. 12 and the relevant Strasbourg case-law. The case-law of the Constitutional Court concerning Convention complaints is dynamic and developing quickly.

7. The Strasbourg principles on the requirement to apply to constitutional courts are strict. In a legal system which provides for constitutional protection of human rights, it is in principle incumbent on the individual to test the extent of that protection and allow the domestic courts to develop those rights by way of interpretation (see Independent News and Media plc and Independent Newspapers (Ireland) Limited v. Ireland (dec.), no. 55120/00, 19 June 2003; Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006; A, B and C v. Ireland [GC], no. 25579/05, § 142, ECHR 2010; Vučković and Others v. Serbia [GC], nos. 17153/11 and others, § 84, 25 March 2014; and Baralija v. Bosnia and Herzegovina , no. 30100/18, § 37, 29 October 2019). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress.

8. The majority rejected the Government’s preliminary objection regarding the complaints in question. However, they failed to examine whether a constitutional appeal would have been “obviously futile”: they simply held that it was “not effective” in this case. In that regard, paragraph 32 of the judgment refers to “the Constitutional Court’s approach to complaints about the legal provisions excluding persons who do not declare affiliation with ‘constituent peoples’ from public functions” and notes that “the legal provisions contested in the cases cited in paragraphs 16-18 above impose restrictions on both the right to stand for election and the right to vote”. By this conclusion, the majority simply transpose the Constitutional Court’s case-law on “public functions” automatically to a case about something different: the right to vote. The additional reference to Zornić (cited above, § 21) does not help: that case was also only about the right to stand for election. The unconvincing nature of the finding that the constitutional appeal is ineffective in the present case concerning this new issue becomes even clearer when one takes a closer look at the decisions of the Constitutional Court cited in paragraphs 16-18 of the judgment.

9. Paragraph 16 refers to two old decisions from March 2006 (U-5/04) and May 2006 (U-13/05) in which the Constitutional Court held in general that it lacked jurisdiction to assess the compliance of the State Constitution with the Convention. As the contested electoral system is enshrined in the Constitution, this could in principle be an argument supporting the ineffectiveness of a constitutional appeal in the present case. However, that position had already been superseded in the same year, by a decision from 29 September 2006 (AP-2678/06), where the Constitutional Court came to a different conclusion: it examined on the merits a discrimination complaint concerning the appellant’s ineligibility to stand for election for the Presidency, thereby accepting its jurisdiction to conduct such a review. More than three years before Sejdić and Finci , it found no violation of Article 1 of Protocol No. 12 (see Pilav , cited above, § 14). Consequently, the decisions from 2006 cannot be used for the assumption that the Constitutional Court would find that it lacked jurisdiction in the present case.

10. The two other decisions of the Constitutional Court, referred to in paragraphs 17 and 18 of the judgment, are from 26 March 2015 (U-14/12) and 17 July 2018 (AP-3464/18). However, they are not any more conclusive for the majority’s position either. Both decisions concerned the right to stand for election (not the right to vote) and referred in that connection to the Court’s findings in Sejdić and Finci and Zornić (both cited above). In the aftermath of those judgments, the Constitutional Court consequently and reasonably held that the matter had already been examined and referred to the ongoing implementation process, without ordering any amendments of the relevant constitutional and legal framework. The majority read this as a declaration of general lack of jurisdiction, unwillingness or inability to accept complaints concerning violations of the Convention on account of the contested constitutional provisions about “both the right to stand for election and the right to vote” (see paragraph 32 of the judgment). However, in those two decisions the Constitutional Court did not and could not even refer to the right to vote, as invoked in the present case, because it had not been the subject of the proceedings. The fact that in 2015 and 2018 the Constitutional Court had found that Sejdić and Finci had already decided the questions relating to the right to stand for election and that – as a Constitutional Court – it could not adopt the required legislative changes itself does not allow the conclusion that it would not enter into an examination of the applicant’s new complaint about the right to vote either, which has never been decided by the Strasbourg Court. The constitutionally and politically sensitive question as to whether and, if so, to what extent discriminatory provisions about the right to stand for election do also discriminate against individual voters raises novel issues of constitutional substance which could (and should) have been decided by the Constitutional Court.

11. In this context, it is telling that not even the applicant attempted such a restrictive interpretation of the Constitutional Court’s case-law as the majority performed in the present case. On the contrary, he did not submit a single argument for his general claim that a constitutional appeal “would not have been effective” (see paragraph 30 of the judgment). While one can accept that the applicant had doubts in that regard, the majority neglect to consider that according to the Court’s established case-law, the existence of “mere doubts” as to the prospects of success of a particular avenue of redress is not a valid reason for failing to pursue it. The European Court of Human Rights is not a first-instance court (see Vučković and Others , cited above, § 70, and Chiragov and Others v. Armenia [GC], no. 13216/05, § 115, ECHR 2015).

12. There is an additional aspect that makes the firm, generalised statement as to the ineffectiveness of a constitutional appeal in this case even more problematic. Article VI of the Constitution envisages the Constitutional Court of Bosnia and Herzegovina as a very specific institution, distinct from all other Constitutional Courts in Europe. Its legal foundation, constitutional position and organisation were particularly tailored by the Dayton Agreement to ensure progress towards a democratic political system. Beside its broad powers as a guardian of the Constitution and the Convention (see paragraph 6 above), its composition and procedure are uniquely designed to ensure its functionality. It has nine members; six judges are selected by the respective assemblies or parliaments of the Entities, and three judges are appointed by the President of the European Court of Human Rights. Those judges cannot be citizens of Bosnia and Herzegovina or of any neighbouring State. Under Articles 9-12 of the Rules of the Constitutional Court, which were adopted by the Constitutional Court itself, it decides in Chambers (President and two Vice-Presidents), a Grand Chamber (the six judges elected by the entities) or the Plenary Court, which also includes the judges appointed by the President of the European Court of Human Rights. These “international judges” take action if the Grand Chamber cannot adopt a decision by a majority of votes and the case must be referred to the Plenary. This concept is obviously designed to overcome conflicts between the “constituent peoples” and to promote the implementation of the Convention in the legal system of Bosnia and Herzegovina.

13. Finally, the majority’s rejection of the Government’s non-exhaustion objection is difficult to understand as they upheld, by contrast, the same objection regarding the applicant’s parallel complaint about the election of the House of Representatives and his complaint about the fact that the delegates to the House of Peoples are “not directly elected” (see paragraph 76 of the judgment). While some reasoning concerning the first of these complaints is given, any arguments in favour of rejecting the second of them are missing (see paragraph 80 of the judgment). This asymmetry is striking.

14. Unfortunately, the majority’s finding that the Constitutional Court of Bosnia and Herzegovina is ineffective for a review of the applicant’s complaints concerning the composition of the House of Peoples and his right to vote for the Presidency is not only difficult to reconcile with the Court’s existing case-law concerning the constitutional appeal in general. In Bosnia and Herzegovina, it has the potential to destabilise the Constitutional Court, and to demotivate its judges and all those institutions who ensure its functioning.

15. Given that the applicant’s complaints under Protocol No. 12 challenge the electoral legislation of Bosnia and Herzegovina in a rather abstract manner, another admissibility problem arises in his case. This problem goes far beyond the situation in Bosnia and Herzegovina, and it raises general questions about individual access to the Strasbourg Court. In order to claim to be a “victim” under Article 34 of the Convention, an applicant must be “directly affected” by the disputed measure (see paragraph 41 of the judgment).

16. In the present case, the majority had obvious difficulties in finding the right description of the applicant’s complaints under Protocol No. 12 (see paragraph 2 above). They call them “complaint concerning the composition of the House of Peoples” (see the title above paragraph 28) and “complaint concerning restrictions on the right to vote stemming from the composition of the Presidency” (see the title above paragraph 63). The corresponding points 1 and 5 of the operative part use, surprisingly, a slightly different wording. By contrast, the introduction (see paragraph 1 of the judgment) and the assessment of these complaints speak almost exclusively of the applicant’s “right to vote” (see paragraphs 32, 39, 42, 56, 63, 69, 73 and 74 of the judgment); this seems justified by the fact that he formulated the same concerns under Article 3 of Protocol No. 1. While this diversity reflects the applicant’s own lack of clarity, it also shows that his complaints actually contest the electoral system as such in a rather abstract, fundamental way.

17. Implicitly referring to the applicant’s right to vote, the majority see the substance of the applicant’s complaints as being that the legislative framework forced him to vote for someone who “does not represent him”, that he was “unable to vote for the candidates of his choice” and that he therefore could not “influence” the decisions of the respective body (see paragraphs 8, 28, 39, 45, 63 and 69 of the judgment). Regarding the House of Peoples, this complaint is twofold: it concerns “the fact” that the delegates “were not directly elected” and that the “composition” (of the body the applicant could not directly elect) was based on a combination of “territorial and ethnic requirements” (see paragraphs 8, 28, 54 and 76 of the judgment). While the complaint about the fact of indirect elections was declared inadmissible (see paragraph 13 above), the majority found the complaint “concerning the composition” of the House of Peoples admissible under Article 1 of Protocol No. 12. In doing so, they not only rejected the effectiveness of a constitutional appeal, but also accepted the applicability of Article 1 of Protocol No. 12 and the applicant’s victim status (Article 34 of the Convention). In that regard, the majority simply relied on the applicant’s position as a potential voter (see paragraph 42 of the judgment).

18. This explanation cannot, however, remove the doubt about the applicant’s victim status. It must be pointed out that he cannot directly elect the delegates to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. Under the Constitution, he can only elect candidates for his cantonal assembly (a right about which he does not complain), the latter’s caucuses elect delegates to the House of Peoples of the Parliament of the Federation, and the House of Peoples of the Parliament of the Federation appoints the delegates to the House of Peoples of the Parliamentary Assembly of the State (see footnote 6 and paragraph 54 of the judgment). The applicant therefore has only a “double indirect” right to vote for the House of Peoples of the Parliamentary Assembly of the State. However, the fact that this election is only an indirect one is as such not in breach of the Convention (see paragraph 13 above). Indirectly, the applicant can indeed influence the choice of candidates: he has the undisputed right to vote in the legislative elections. However, he derives the alleged limitations on this right directly from the restrictions for candidates, whose right to stand for elections depends on their affiliation with a “constituent people”. Other candidates – whom the applicant may prefer because of their non-affiliation with such a people – are excluded.

19. This kind of complaint raises general questions concerning the concept of parliamentary democracy. Has every single voter with an active voting right also a right “to be represented” in a parliamentary body, even more so if this body is not directly elected? Does every voter in a democracy have a right to a party or a candidate “of his choice”? Must constitutional provisions governing the right to stand for election – and State funding for political parties – ensure that every single voter and/or every group of voters is “represented” in a democratic body? Do minimum age requirements for candidates directly affect the voting rights of young people? Do constitutions which do not provide for minority lists directly affect the voting rights of members of minorities? To sum up: can the right to vote of an individual voter really be considered to be “directly affected” by provisions on the right of candidates to stand for (indirect) election?

20. Although these questions are new, important and sensitive, the majority did not address them. In consequence, the acceptance of the applicant’s victim status concerning his complaint about “the composition of the House of Peoples” insinuates an unprecedented concept in which every voter has an individual right to candidates by whom he or she is “represented”. Such an interpretation finds support in paragraph 55 of the judgment (which holds that “all segments of society should be represented in the House of Peoples”) and paragraph 73 of the judgment (which sees the crux of the violation in the fact that the applicant “is not genuinely represented in the collective Presidency”). Such a concept implies, however, on a general level, that all constitutional criteria which regulate the right to stand for election automatically also restrict the right to vote. This also allows the conclusion that member States must take positive measures to ensure the “representation” of all social, religious, economic, or other groups. This would not only contradict all constitutional concepts which clearly distinguish between the active right to vote and the passive right to stand for election. It would also change the concept of parliamentary, representative democracy as such: this concept can never – and does not intend to – guarantee that every voter finds a candidate “of his or her choice” who “represents him or her”. Can such a far-reaching conclusion really be based on the prohibition of discrimination?

21. A further question arises in connection with the applicant’s victim status regarding his complaint concerning “restrictions on the right to vote stemming from the composition of the Presidency of Bosnia and Herzegovina”. He alleged that the candidates best representing his political views in the presidential elections in 2022 were not from the “right” Entity and/or of the “right” ethnic origin (see paragraph 63 of the judgment). At the same time, it is known that the applicant is a political adviser to one of the three members of the current Presidency (see paragraph 8 of the judgment). Why could this person not be a candidate of the applicant’s choice? The question remains open (see paragraphs 64-68 of the judgment).

22. The majority are conscious of the almost obvious consequence that these newly defined voting rights, which are assumed to be directly affected by the composition of State bodies and entail the admissibility of the complaints under Protocol No. 12, call for an effective remedy before domestic courts under Article 13 of the Convention. They evade this conclusion by referring to the Court’s case-law to the effect that “Article 13 does not guarantee a remedy allowing a challenge to primary legislation before a national authority” (see paragraph 82 of the judgment). This reference, however, is particularly unsatisfactory in a judgment which has firmly stated (differently from Sejdić and Finci and all other judgments of the Court) that no effective domestic remedy for this specific category of complaints exists (see paragraph 32 of the judgment). It is also difficult to reconcile with the recent judgment in Toplak and Mrak v. Slovenia (nos. 34591/19, 42545/19, §§ 78-91, 26 October 2021), where the Court found a violation of Article 13 taken together with Article 1 of Protocol No. 12 because Slovenia did not provide an effective remedy for the enforcement of the right of disabled people to vote. That judgment is based on the principle that Article 13 guarantees the availability at the national level of a remedy to deal with the substance of all “arguable complaints” under the Convention, including complaints under Protocol No. 12. Does the opposite conclusion by the majority now mean that all potential voters of States which have ratified Protocol No. 12 who complain of discrimination on account of the election system and have no proper access to a domestic court can directly apply to the European Court of Human Rights?

23. For the above reasons I was unable to vote in favour of the admissibility of the applicant’s complaints under Article 1 of Protocol No. 12 “concerning the composition” of the House of Peoples and the Presidency. I was therefore also unable to agree that there was a violation of this Article, and that it was not necessary to examine the same complaints under Article 3 of Protocol No. 1 taken together with Article 14. Those complaints were in my view premature.

24. Unfortunately, the problems underlined in the Court’s judgment in Sejdić and Finci have still not been resolved, almost fourteen years after its publication and despite several later judgments concerning the right to stand for election in Bosnia and Herzegovina (see paragraph 3 above). This was recently criticised by the Committee of Ministers (see paragraph 22 of the judgment). The majority’s language goes beyond this, by repeating the Commissioner for Human Rights’ finding that the current system is “based on ethnic discrimination [and] impedes social cohesion, reconciliation and progress” (see paragraph 59 of the judgment).

25. Such a highly political message must concern us all: Europeans and European judges, from whatever court. However, a solution for any political dysfunctionality in Bosnia and Herzegovina must happen within the country. A constitutional court with such broad jurisdiction as the Bosnian one, which can apply the guarantees of the Convention and the Protocols thereto directly as superior to all national law, which is constantly developing its case-law and whose composition enjoys strong support from the European Court of Human Rights, should not lightly be declared “ineffective”. This must give us food for thought, especially in a case which obviously raises new conceptual issues of representative democracy rooted in the relationship between the right to stand for election and the right to vote. For exactly this reason the majority should have been more careful with the application of the exhaustion rule. This is not least required by the principle of subsidiarity, prominently enshrined in the Preamble to the Convention since 1 August 2021.

[1] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” should not be confused with the term “Bosnians”, which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.

[2] The Croats are an ethnic group whose members may be natives of Croatia or of other former component republics of the Socialist Federal Republic of Yugoslavia (“the SFRY”) including Bosnia and Herzegovina. The expression “Croat” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Croatian”, which normally refers to nationals of Croatia.

[3] The Serbs are an ethnic group whose members may be natives of Serbia or of other former component republics of the SFRY including Bosnia and Herzegovina. The expression “Serb” is normally used (both as a noun and as an adjective) to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with “Serbian”, which normally refers to nationals of Serbia.

[4] Ms Nystuen participated in the Dayton negotiations and the preceding constitutional discussions as a legal adviser to the European Union Co-Chairman of the International Conference on the former Yugoslavia, Mr Bildt, who was heading the European Union delegation within the Contact Group. Thereafter, until 1997, she worked as a legal adviser to Mr Bildt in his capacity as High Representative for Bosnia and Herzegovina.

[5] Mr O’Brien participated in the Dayton negotiations as a Contact Group lawyer, as well as in most major negotiations concerning the former Yugoslavia from 1994 to 2001.

[6] Bosniac and Croat delegates to the House of Peoples of the Federation are elected by the Bosniac and Croat caucuses of the cantonal assemblies (the Federation consists of ten cantons). Members of the cantonal assemblies are directly elected.

[7] Members of the National Assembly of the Republika Srpska are directly elected.

[8] All citizens of Bosnia and Herzegovina also have the citizenship of the Entity in which they have declared their permanent residence. Since the Brčko District is in the joint ownership (condominium) of the two Entities, its residents are entitled to choose their Entity citizenship.

[9] The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 convertible mark = 0.51129 euros).