At the 158th plenary session of the Constitutional Court of Bosnia and Herzegovina, it annulled the Law on the High Judicial and Prosecutorial Council of Republika Srpska, adopted on 27 February.
In a statement by the Constitutional Court, they explained their decision to completely annul this law, which they had previously temporarily suspended.
“The Constitutional Court, referring to its own practice, pointed out that in a situation where an entity’s competence is transferred to the state level by consent, it becomes part of the exclusive competence of the state, and, in accordance with the principle of the rule of law from Article I/2 of the Constitution of Bosnia and Herzegovina, only on the basis of decisions made in the institutions of Bosnia and Herzegovina can these previously transferred competences be restored,” the statement reads.
They further state that this law and the Rulebook on the procedure for nomination and election of the first members of the High Judicial and Prosecutorial Council of Republika Srpska “regulate the same matter that is already regulated by the state Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina.”
“It was pointed out that the entities concluded an Agreement on the Transfer of Certain Entity Competencies by Establishing the High Judicial and Prosecutorial Council of BiH. In this way, with the consent of the entities, the jurisdiction of Bosnia and Herzegovina was established in the field of justice based on Article III/5.a) of the Constitution of Bosnia and Herzegovina. This also meant the jurisdiction of the Parliamentary Assembly of Bosnia and Herzegovina, in accordance with Article IV/4.a) of the Constitution of Bosnia and Herzegovina, to adopt the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, which established the High Judicial and Prosecutorial Council of Bosnia and Herzegovina as an independent and autonomous body tasked with ensuring an independent, impartial and professional judiciary,” the Constitutional Court of BiH said.
They also state that this law and the rulebook “exclude the judiciary on the territory of the entity of Republika Srpska from the jurisdiction of the High Judicial and Prosecutorial Council of BiH and place it under the jurisdiction of the newly established High Judicial and Prosecutorial Council of RS.”
“In this way, de facto and de iure, an attempt is being made to usurp the jurisdiction of Bosnia and Herzegovina in the area of justice on the territory of the entity of Republika Srpska and to “return” jurisdiction in that area to the entity of Republika Srpska. The Constitutional Court has repeatedly emphasized that the process of “returning” to the entities the jurisdictions previously established as the jurisdiction of Bosnia and Herzegovina on the basis of Article III/5 of the Constitution of Bosnia and Herzegovina is the exclusive jurisdiction of the Parliamentary Assembly of Bosnia and Herzegovina,” the statement states. It was also emphasized that “unilateral actions by one of the entities cannot re-establish the jurisdiction of the entity for the area in which the jurisdiction of the state of Bosnia and Herzegovina was previously established on the basis of Article III/5. of the Constitution of Bosnia and Herzegovina.”
“Therefore, taking into account the undisputed content of the Law on the High Judicial and Prosecutorial Council of BiH, the content of the disputed Law on the High Judicial and Prosecutorial Council of the RS and the Rulebook which assumes the competences of the institutions of Bosnia and Herzegovina, as well as its own practice, the Constitutional Court concluded that there are no provisions in the Constitution of Bosnia and Herzegovina on the basis of which the constitutionality of the disputed legal acts adopted by the National Assembly of the Republika Srpska could be justified,” the Constitutional Court of BiH said in a statement.
