Double fallacy: Kovačević, Ljubić and paralegal stretching of the boundaries of court decisions
Introduction: paralegal stretching of court decisions as a political tool
In the following lines, I will address the phenomenon of “paralegal stretching” of court decisions — a practice in which final and binding court rulings, under the guise of subsequent and seemingly expert interpretation, are essentially deconstructed and adapted to extralegal interests. Such uncontrolled and arbitrary reinterpretation of a normative text directly undermines the rule of law and legal certainty, transforming judicial authority into a stretchable category and opening the way for institutional erosion in which extralegal dogmatism triumphs over the constitutional order.
The constitutional and legal debate in Bosnia and Herzegovina has been increasingly transformed from an expert and doctrinal debate into an instrument of daily political propaganda in recent years. Instead of analyzing the positive-legal constitutional framework and consistent application of normative acts, we are witnessing a deliberate and tendentious erasure of the boundaries between constitutional and legal principles and administrative-technical criteria for conducting elections. Judicial decisions, both those of domestic instances and international courts, are treated as a political reservoir from which ethno-national and declaratively civic elites extrapolate exclusively what suits their ideological narratives using paralegal methods.
The most blatant examples of this approach, which directly undermines the rule of law, are the interpretations of the decisions in the Ljubić and Kovačević cases.
The Ljubić case: Extensive interpretation outside the constitutional and legal framework
The constitutional facts regarding the decision of the Constitutional Court of BiH in the Ljubić case (U-23/14) require a strict definition of its scope. The immediate subject of consideration and decision of the Constitutional Court of BiH was limited exclusively to the assessment of the constitutionality of the provisions of the Election Law of BiH that regulated the mechanism for electing delegates to the House of Peoples of the Parliament of the Federation of BiH. Although the Constitutional Court elaborated in its reasoning on the decision a broader constitutional standard of equality of constituent peoples and the principle of legitimate political representation, this reasoning cannot legally be viewed as the introduction of a new, universal electoral qualification.
The Constitution of Bosnia and Herzegovina and applicable legislation prescribe in detail the conditions under which citizens may run for public office. No political interpretation or analogy entitles the Central Election Commission (CEC) or the Court of BiH to introduce additional administrative filters – such as the requirement that a candidate ex ante prove that he or she possesses “legitimacy” within a specific ethnic group. Turning an abstract constitutional principle into an administrative eliminatory obstacle without an explicit constitutional or legal basis constitutes a flagrant violation of the principles of legality and constitutionality. The Ljubić case concerned exclusively a specific house of the legislative branch, and not candidacies for the collective head of state (the Presidency of BiH), as has been confirmed by recent case law of the Court of BiH
Between the Constitutional Court’s record and the High Representative’s amendments
The formal status of the decision of the Constitutional Court of BiH in the case U-23/14 (Ljubić) as “not implemented” continues to be maintained in the Court’s periodic reports, despite the amendments imposed by the High Representative in 2022. This creates the appearance of a legal vacuum. However, the essential issue is not the formalistic record-keeping, but whether the material content of the obligation – harmonization of the manner of election of delegates to the House of Peoples of the Federation of BiH with the constitutional principle of legitimate representation of the constituent peoples – has been fulfilled. The imposed amendments to the Election Law and the Constitution of the Federation, which increased the number of delegates and corrected disproportionality, precisely responded to this obligation. Therefore, in my opinion, the judgment was implemented through OHR acts, regardless of the fact that the Parliamentary Assembly of BiH never adopted the corresponding amendments itself.
The selective reference to the “unimplemented” Ljubić judgment has become a political tool, not a legal argument. While insisting on the fact that the Constitutional Court continues to handle the case as unimplemented, it is ignored that the same Court has repeatedly left room for an analysis of the effects of the Schmidt amendments. This analysis has not been completed, partly due to the reduced capacity of the Court, but this does not change the fact that the OHR acted within its powers under Annex 10 and de facto closed the gap left open by the domestic legislator. Politicians who today use the formal status of the “unimplemented” decision to block broader reforms have, at the same time, ignored for years the ECtHR judgments that established open constitutional discrimination that would weaken ethnic monopolies. This is not a defense of constitutionality, but a defense of the status quo.
The distinction between the formal and substantive enforcement of decisions of the Constitutional Court is not new in the BiH legal system. In the Ljubić case, the Constitutional Court of Bosnia and Herzegovina in 2017 itself invalidated the disputed provisions of the Election Law because the Parliamentary Assembly failed to react. This created a legal vacuum that the Central Election Commission temporarily filled, and the High Representative finally resolved in 2022. Insisting that the decision continue to be considered unenforced, without taking into account the actual effects of the amendment, leads to absurdity: as if a constitutional obligation can be fulfilled only in one, predetermined way, and not in the way in which an international representative, in accordance with Dayton, intervenes. Such formalism serves political blockades, not the rule of law.
Ultimately, the question is not just whether the Ljubić judgment has been “implemented” or not. The question is whether BiH institutions and political elites will commit to the consistent application of all constitutional and convention standards, or will they continue to choose those decisions that suit them at a given moment. While the Sejdić -Finci and related judgments have been left on hold for more than fifteen years, and Ljubić is being used as a lever for ethnic engineering, it remains clear that the problem is not a lack of legal solutions, but a lack of political will to apply them consistently and without double standards.
Kovačević case: Procedural collapse and abuse of the right to individual petition
On the other hand, the legal attempt in the Kovačević case aimed to carry out a radical and comprehensive deconstruction of the constitutional architecture of Bosnia and Herzegovina through the mechanism of individual applications before the European Court of Human Rights (ECtHR). The applicant sought to declare the combination of ethnic and territorial elements within the Dayton system discriminatory in its entirety. 1
However, the decision of the Grand Chamber of the ECHR showed that elementary procedural rules cannot be ignored before international judicial institutions. The Grand Chamber did not conduct a substantive (substantive) assessment of the BiH electoral system in this case. The application was rejected at the procedural level because the applicant did not prove that he was directly and individually affected by the contested constitutional solutions in a way that would grant him victim status within the meaning of Article 34 of the European Convention 2 The complaints are legally qualified as actio popularis, which is a mechanism that the European Convention does not allow individuals to use for the purpose of abstractly challenging the state system.
The most legally difficult finding of the Grand Chamber relates to the established abuse of the right to individual petition (abuse of the right of individual application). It can be argued that in its previous practice, the ECtHR has never “disfigured” and punished any applicant in its reasoning of the decision as explicitly and harshly as Kovačević. The Court assessed that the applicant’s behavior during the proceedings – which included a demonstration of disrespect for the institutions in the vertical, serious and unfounded accusations of corruption against the then President of the Court Síofra O’Leary’s ad hominem attacks on agents of the Council of Ministers of BiH before the European Court of Human Rights and the Office of the High Representative (OHR), and contradictory and misleading information about his own ethnic affiliation – falls under the category of “highly reproachable” (extremely reprehensible). Such behavior exceeded the limits of permissible legal criticism, which resulted in procedural rejection of the case.
In this context, the arguments of the representative of the Government of Bosnia and Herzegovina were also crucial, pointing to the legal absurdity of the application itself. According to the data on nationality officially used by the applicant in the domestic system, he declared himself a Croat. Given that constitutional and legal system, his place of residence in Sarajevo and all previously established facts, he legally enjoyed completely equal rights as all other citizens. The fact that he filed the application before the international court under the guise of an abstract “citizen”, consciously concealing his own legal status within the constitutional system of BiH, clearly indicates that the goal was the artificial creation of a dispute and the degradation of the position of the state itself in Strasbourg. All this, along with scandalous incidents of leaks of confidential information during the process, led to the Court refusing to discuss the substance of the problem at all. 3
The failure of this case, therefore, does not confirm that the constitutional system of BiH is ideal and devoid of discrimination, but it does not constitute a substantive confirmation that the system is illegitimate. The European Court decided solely on the lack of procedural prerequisites and victim status, abuse of rights and violation of elementary procedural discipline.
Repeating the pattern: Ignoring procedural discipline before international courts
This procedural failure reflects a deeper misunderstanding of the functioning of international justice by BiH actors. It is a clear continuation of the pattern seen in 2017, during the unsuccessful attempt to initiate a review of the International Court of Justice (ICJ) judgment in the case of Bosnia and Herzegovina v. Serbia.
As a reminder, this request also experienced an immediate formal collapse because it was not submitted by the competent state body – the Presidency of BiH as the collective head of state did not make the necessary decision, and the then agent Sakib Softić no longer had a valid mandate. The political elites, despite clear constitutional and legal warnings from the profession, insisted on a step that was formally and legally untenable. In both cases, legal ignorance of procedures and neglect of procedural discipline resulted in failure, which was then manipulated by the domestic public into a political narrative about “unjust trials” and “conspiracies”, thereby consciously diverting attention from their own legal failures.
Selective hermeneutics and constitutional equilibria: Where is Minister Bunoza wrong?
A particularly problematic contribution to this paralegal flexibility of court decisions comes from the highest institutional instances, more precisely through the public statements of the State Minister of Justice Davor Bunoza on the social network X. Minister Bunoza persistently tries to construct a legal narrative according to which point 203 of the decision of the Grand Chamber in the Kovačević case and point 47 of the decision of the Constitutional Court of BiH in the Ljubić case are in “full harmony” and confirm legitimate representation as a general constitutional principle at all administrative-political levels, including the election of members of the Presidency of BiH (post on his X profile from). Such an interpretation is a textbook example of selective constitutional hermeneutics that consciously ignores the hierarchy and explicit textual boundaries of normative acts. As a lawyer and minister, Bunoza should know that the legal relationship between voters and their representatives, to which the European Court refers, cannot be automatically transferred from the legislative chamber (the House of Peoples of the FBiH) to the institution of the collective head of state (the Presidency of BiH). The election of the members of the Presidency is regulated exhaustively and explicitly by Article V of the Constitution of BiH, while the Ljubić case dealt exclusively with the Election Law in the context of the Houses of Peoples. The attempt to use the procedural rejection of the Kovačević case – in which the Grand Chamber did not at all delve into the substantive merits of the electoral system – as an international legal “blank check” for the ethnic verification of candidates and the introduction of a third electoral district is legally untenable. If a higher instance or the Grand Chamber of the European Court of Human Rights (ECHR) focuses on procedural issues or admissibility (e.g. exhaustion of domestic remedies or victim status), incidental positions (obiter dicta) or general principles of democratic decision-making cannot be used to substantially change the constitutional structure beyond the text of the Constitution itself. When the Minister of Justice puts forward the thesis in the public domain that the abstract positions of the court on “democratic decision-making” give the Central Election Commission the authority to assess the ethnic legitimacy of candidates beyond the letter of the Constitution, he directly suspends the principle of legality. The decisions of the courts must be applied within the limits of what was actually adjudicated by them, and not in the way that political cabinets, through constitutional equilibria, try to subsequently imagine.
Legal conclusion and the necessity of constitutional reform
Positive law and constitutional doctrine do not operate on the principle of a political buffet. It is not legally permissible to draw conclusions from the Ljubić case about the universal right of political parties to an ethnic veto outside the scope of the judgment itself, nor is it permissible to proclaim the procedural defeat in the Kovačević case as a moral victory for the civic concept.
Both cases, viewed through the prism of constitutional law, illuminate two sides of the same systemic problem in BiH: how to reconcile the model of consociational democracy and the collective rights of constituent peoples with individual political rights and equality of citizens, without entering into exclusive ethnocracy or majoritarianism.
The limits of constitutional judicial authority clearly differentiate the determination of unconstitutionality from the creation of new constitutional solutions. A distinction must always be made between constitutional judicial control (negative legislator/corrective) and constitutional/legislative authority (positive legislator). The Constitutional Court points to unconstitutionality, but does not write a new constitutional text. Meritorious judgments in the constitutional law practice of BiH serve as correctives, not as substitutes for the original constitutional text. A way out of the institutional conflict imperatively requires the implementation of constitutional reform through legal amendment procedures in parliament, with consistent respect for the pronounced court findings (res judicata and erga omnes effect) and the elimination of any legal arbitrariness.
- Marko writes about this in his contributions to the Verfassungsblog, where he analyzes the scope and consequences of the judgment in the Kovačević case for the constitutional system and ethno-territorial quotas in Bosnia and Herzegovina. In this blog post: https://verfassungsblog.de/ecthr-voting-bosniaherzegovina/, Joseph Marko examines the broader ramifications of the ECtHR’s procedural shifts, assessing how individual voting rights complaints interact with strict ethnic quota systems and power-sharing frameworks. Further systemic context on the ongoing legal debate surrounding the Chamber’s decision can be found in: https://verfassungsblog.de/the-kovacevic-case-revisited/, which outlines the friction between individual equal suffrage and the institutional mechanisms of representative democracy in divided societies. The blog post: https://www.ejiltalk.org/kovacevic-v-bosnia-and-herzegovina-and-the-saga-of-the-dayton-peace-agreements-incompatibility-with-the-european-convention-on-human-rights/ explores how the applicant’s novel arguments went beyond earlier jurisprudence by targeting the systemic exclusion built into both the active and passive voting dimensions of the Dayton Constitution.
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ECHR, Art. 34. The Court consistently rejects ‘actio popularis’—an abstract challenge to legislation or the constitutional order without evidence that the applicant is directly and individually affected. Cf. Kovačević v. BiH, para. 140 et seq.
- Igor Popović writes in detail about the controversial leak of confidential information and the procedural irregularities that preceded the Court’s decision: https://www.ejiltalk.org/a-judgment-leaking-from-the-european-court-the-case-of-kovacevic-v-bosnia-and-herzegovina/, while in a later analysis: https://verfassungsblog.de/not-a-curtain-drop-but-an-abuse-of-rights/ he explains why the Grand Chamber declared the application inadmissible instead of addressing the merits of the dispute.