Constitutional Court of Bosnia and Herzegovina
The Republika Srpska, an entity of Bosnia and Herzegovina, and its president Milorad Dodik are increasingly pushing towards greater independence. A new bill on the non-enforceability of decisions of the Constitutional Court of BiH on the territory of Republika Srpska has just been approved
On Tuesday 27 June, the deputies of the People’s Assembly of the Republika Srpska (NSRS) approved with an urgent procedure a bill on the non-application of the decisions of the Constitutional Court of Bosnia Herzegovina (USBiH) on the territory of the Republika Srpska. The legislative proposal in question – strongly criticized by many local and international political actors as an assault on the institutions of BiH and on the integrity of the USBiH – arrived at the expiry of the ultimatum launched by the political leadership of the RS which had given the Constitutional Court until to last week to reverse the decision regarding the majority needed to deliberate. The Court had in fact decided to adopt the simple majority rule for its deliberations, while up to now the vote of judges from both entities that make up BiH was required.
Considering the political climate prevailing in Republika Srpska and the existence of a stable majority supporting the RS government, it is highly probable that the proposed law in question will be definitively adopted.
“The non-application of the decisions of the Constitutional Court is only a first measure. This will be followed by the decision by which the National Security Agency (SIPA), the Prosecutor’s Office and the Court of BiH will be prevented from operating on the territory of the Republika Srpska as they are unconstitutional institutions, which have no basis in the Constitution and have a repressive attitude in comparisons of RS. However, if a political agreement is reached, we will not take these measures,” said Milorad Dodik during the parliamentary debate on the aforementioned bill.
The president of the RS then underlined that the approval of the law on the Constitutional Court will form the basis for other measures that the RS intends to adopt towards ever greater independence.
Instead, opposition exponents warned that the road taken by the RS leadership is potentially dangerous, also raising skeptical objections on the actual possibility of implementing the proposed legislative provisions.
“The Constitutional Court has an arrogant and anti-Serb attitude,” Dodik said during the Press conference in which he had given the ultimatum to the Court to reverse the decision concerning the majority necessary to deliberate. On that occasion, Dodik also announced that the RS will present a bill on the Constitutional Court to the BiH parliament which provides for the ousting of the three international judges.
The proposal put forward by Dodik also provides that three judges of the Constitutional Court will be appointed by the RS and six by the BiH Federation, and that the Court’s decisions, to be valid, must be approved by a judge belonging to each constituent people.
“So far as [il parlamento della BiH] if he refuses to discuss the law, it will mean that he wants to continue ruining RS until it is destroyed”, stated Dodik, specifying that he advanced the legislative proposal in question sensing the intention of subtracting some public goods from RS.
Dodik and his collaborators dispute the decision on the amendments to the Constitutional Court Regulation adopted last June 19, with which the Court repealed a paragraph of article 39 of the Regulation which provided that the resolutions of the Court meeting in plenary session were valid only in the presence at least three judges appointed by the House of Representatives of the FBiH parliament and at least one judge appointed by the RS People’s Assembly.
Milorad Dodik © Alexandros Michailidis/Shutterstock
The adoption of the amendment in question was made public with a press release in which the Constitutional Court explained that it had amended its Rules in response to the extraordinary situation it was faced with due to the political pressure exerted on the vice president of the Court Zlatko M. Knezevic. The objective of the amendment is to allow the Court to continue to deliberate.
In the conclusions of a session of the Popular Assembly of the RS last week in which the “unconstitutional” work of the Constitutional Court of BiH was discussed, representatives of the RS are invited to leave the parliament of BiH if the latter does not approve the law on the Constitutional Court and the law on the appointment of constitutional judges proposed by the President of the European Court of Human Rights. During the same session, the decision on the withdrawal of the Serbian judges from the Constitutional Court was also adopted.
According to current legislation, established by the Dayton Accords, the Constitutional Court of BiH is composed of nine judges. Of these, four are nominated by the FBiH parliament (usually according to a formula whereby two judges are Bosniaks and two are Croats), two by the RS People’s Assembly (usually both from the Serbian people) and three by the president of the European Court of Human Rights. Foreign judges can come from any country except the countries bordering BiH.
The Constitutional Court of BiH is the only Bosnian-Herzegovilian institution that functions according to a logic that is not ethnically determined: according to the Constitution of BiH, the deliberations of the Constitutional Court must be approved by five judges to be valid [a prescindere da appartenenza etnica e nazionale]. Dodik and his partners argue that any decision of the Constitutional Court passed without the support of Serbian judges is unconstitutional.
Currently among the members of the Constitutional Court there is only one judge from Republika Srpska, the aforementioned Zlatko Knežević, who is expected to retire by the end of 2023. According to some media reports, Knežević has decided to take early retirement after being been urged by the Popular Assembly of the RS to leave the Court. The other judge from RS, Miodrag Simović, had retired in November 2022 at the age of 70. The RS Assembly has not yet even convened a session to appoint a judge to replace Simović. The appointment of a judge from the BiH Federation is also still awaited and is continuously postponed due to disagreements between the political leaders of the FBiH.
According to some jurists, the Constitutional Court – currently made up of seven judges – could deliberate even in the event that Knežević decides to withdraw since there would still be the necessary quorum (of five judges).
In a Press release released last 19 June, the Constitutional Court recalled that the House of Representatives of the FBiH parliament and the Popular Assembly of the RS have been refusing for too long now – for ten and seven months respectively – to fulfill their constitutional duty and appoint the constitutional judges, thus hindering the work of the Court. Interviewed by some media, the representatives of the Court reiterated that they have no intention of responding to Dodik’s ultimatums, referring for further information to the above press release.
For Mato Tadić, former president of the Constitutional Court, the political pressures we are witnessing risk, ultimately, jeopardizing the functionality of the Constitutional Court, the only institution in BiH which in the last twenty-eight years has been praised precisely for its its effectiveness.
The jurist Nedim Ademović is also of the same opinion. Interviewed by a local broadcaster, Ademović defined the approval of the proposed law on the non-application of the decisions of the Constitutional Court as “a coup d’état” and “a first step towards the legal secession” of Republika Srpska from BiH. According to Ademović, we are witnessing the most serious crisis since the end of the war, a crisis that requires a decisive response from the state and the international community.
Can political attacks on state institutions be sanctioned?
According to the Penal Code of BiH, non-compliance with the decisions of the Constitutional Court is a crime. Milorad Dodik is well aware of this and even hinted at this issue during a recent press conference where he spoke about the Constitutional Court. Accusing the leadership of the BiH Federation of playing the crime card, Dodik said that the provision of the Penal Code which defines non-compliance with the Constitutional Court as a crime can be circumvented by the People’s Assembly of the RS by approving some measures that allow for conferring a immunity to anyone who refuses to comply with the decisions of the Court in the territory of the RS.
The Office of the High Representative, the US Embassy and the EU Delegation in BiH condemned the political pressure on the Constitutional Court. However, Bosnian-Herzegoviian public opinion expects the High Representative and the international community to take more concrete measures to keep Milorad Dodik at bay.
For some time now Dodik and his collaborators have been trying to frustrate the High Representative’s decisions. During a recent session, the Popular Assembly of the RS approved some amendments to the law on the Official Gazette of the RS, canceling the obligation to publish all the decisions of the High Representative in the Gazette.
Nenad Stevandić, president of the Popular Assembly of the RS, declared that, by deciding not to publish the High Representative’s provisions in the Official Gazette of the RS, the Popular Assembly “has put an end to a synchronized action of the High Representative and of the Constitutional Court” aimed at removing some state assets from the RS. “We believe we have the right to object to the taking of assets [alla RS] and any decision that risks proving to be unconstitutional and calling into question the Dayton Agreement which conferred certain assets on the entities, and now the Constitutional Court, with some of its decisions, seeks to problematize [le disposizioni dell’Accordo di Dayton riguardanti la proprietà statale]”, Stevandić said.
The reform of the Constitutional Court is one of fourteen requirements identified by the European Commission in its opinion on BiH’s 2019 membership application, requirements that the country must meet in order to start accession negotiations. Several proposals for a new law on the Constitutional Court of BiH have been presented in recent years, but none of these proposals has gained sufficient support to pass.
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