KOVAČEVIĆ PRED EVROPSKIM SUDOM ZA LJUDSKA PRAVA: PROCESNA FARSA I SUMNJIV PRESEDAN U ANTIDISKRIMINACIONOJ PRAKSI
KOVAČEVIĆ BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS: A PROCEDURAL FARCE AND A DUBIOUS PRECEDENT IN DISCRIMINATION JURISPRUDENCE

Summary/Abstract: This paper employs methods of legal dogmatics and draws upon theoretical insights from procedural and anti-discrimination law to explain the proceedings and assess the reasoning of the European Court of Human Rights (ECtHR) in the case Slaven Kovačević v. Bosnia and Herzegovina (BiH), application no. 43651/22. In this case, the applicant initially achieved another swift victory by successfully invoking a violation of the general prohibition of discrimination under Article 1 of Protocol No. 12 (P12) to the European Convention on Human Rights (ECHR) in the enjoyment of his right to vote for candidates according to his political conviction under Article 3 of Protocol No. 1. However, after this victory was challenged, he suffered an unexpected procedural shipwreck before the ECtHR Grand Chamber, which found that the applicant was not a victim of discrimination and had even abused his right of individual application. The paper further discusses the possible implications of this judgment for the future development of Protocol No. 12 and anti-discrimination law more broadly. A detailed examination of the conduct and reasoning of all procedural actors reveals indications of improper use of procedural powers, bias among participants, and the lack of a coherent legal framework for the representation of Bosnia and Herzegovina before the ECtHR.The was not the only one who deserved procedural reproach. First, the institutions of BiH violated the legal framework for representation before the ECtHR. Second, the Agent of the state in the first-instance proceedings failed to address all unused domestic remedies and failed to inform the Court of its legally unsound status. Besides, the agent failed to clarify which BiH institution authorised his representation, or what was the legal basis for that if he/she had acted proprio motu. Third, OHR intervened for the first time in a case before the ECtHR but failed to explain the motives for his sudden enthusiasm in this case. Fourth, during the first-instance proceedings, the BiH judge did not warn that all effective domestic legal remedies had not been exhausted. Finally, the ECtHR did not convincingly refute the applicant’s serious allegations concerning the impartiality of the Court.The procedural shipwreck of the applicant before the Grand Chamber suggests a departure by the Court from its previous proactive approach to the application of Protocol No. 12 and a retreat from further engagement with the structural issues of BiH’s consociational system. However, such a restrained approach seems inconsistent with the mission of the Council of Europe’s institution in combating discrimination, and the Court’s inconsistent reasoning is unlikely to contribute to the conceptual development of anti-discrimination law or to encourage wider ratification of the still insufficiently accepted Protocol No. 12.

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