The Constitutional Court of Bosnia and Herzegovina, at its 168th plenary session, adopted a series of decisions on the constitutionality of laws and acts of various levels of government, inter alia, ordering the Parliamentary Assembly of BiH to regulate the procedure for appointing the Chief Negotiator and his Deputy for conducting negotiations on accession to the European Union (EU) within six months.
At the session held on 26 and 27 March, the Constitutional Court decided on the request of the Deputy Speaker of the House of Peoples of the BiH PA, Kemal Ademović, for the review of the constitutionality of Article 6, paragraph (1), item 1), Article 8, paragraph (3), item 6), Article 141, paragraphs (5) and (6), and Article 141a, paragraphs (3) and (4) of the Law on Police and Internal Affairs of the Republika Srpska (RS).
The Court found that Article 141, paragraphs (5) and (6) and Article 141a, paragraph (4) are not in accordance with Article III/3(b) of the Constitution of BiH. The reason is that by adopting these provisions, the Republika Srpska (RS) has not harmonized the law with relevant state-level regulations, including the Law on the Agency for Identification Documents, Records and Data Exchange of BiH, the Law on the Identity Card of BiH and the Law on Travel Documents of BiH. This has not ensured the Agency’s competence in the field of digital signing and personalization of identification documents, nor the adoption of related by-laws that would regulate this.
The Constitutional Court also found that Article 146, paragraph (1) of the Law on Police is not in accordance with Article III/3.(b) and III/1.(g) of the Constitution of BiH, because the Directorate for Coordination of Police Bodies has exclusive competence for cooperation between the police bodies of BiH and relevant international and foreign bodies.
On the other hand, the Constitutional Court confirmed that certain provisions of the Law on Police are in accordance with the Constitution of BiH. Thus, Article 6. Paragraph (1) item 1) and Article 8. Paragraph (3) item 6) are in accordance with Article III/3.(b) of the Constitution, because they refer to the work of the Ministry of Internal Affairs of the RS in the field of unique identity number, residence, identity cards and travel documents and generally to the protection of information and communication infrastructure, and not to the competence of the Agency.
They additionally clarified that Article 141, paragraph (5), in the part related to police identification and identification documents, does not contradict the Law on the Agency, because it deals with the personalization of documents of police and other officials, which the Agency does not regulate.
The same applies to Article 141, paragraph (6), which governs the rulebook on the establishment of a records protection system, and Article 141a. paragraph (3), which does not allow citizens to use infrastructure from Article 141, paragraph (5) that is not in accordance with the Constitution, but only infrastructure established by the Agency.
The Constitutional Court also decided on the request of 11 members of the House of Representatives of the BiH PA for resolution of the dispute with the entity of Republika Srpska, the National Assembly of the RS (NARS), due to the adoption of the Decision on the Approval of the Draft Constitution of the RS. The applicants stated that the Decision on the Approval of the Draft Constitution of the RS is not in accordance with Articles I/1., I/2., III/3.(b) and VI/5. of the Constitution of BiH.
The Constitutional Court determined that there is a dispute between BiH and the RS regarding the Decision on the Approval of the Draft Constitution of the RS and that the aforementioned decision is not in accordance with Articles I/2., III/3.(b) and VI/5. of the Constitution of BiH because the provisions that constitute the basis of the constitutional order of the RS are not harmonized with the provisions of the Constitution of BiH and the final and binding decisions of the Constitutional Court.
Deciding on the request of the First Deputy Speaker of the House of Representatives of the BiH PA, Darko Babalj, for a review of the constitutionality of the Law on Financing Political Organizations, the Constitutional Court concluded that the disputed law is not in accordance with Article II/3(i) of the Constitution of BiH and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the abolition of budgetary financing constitutes a disproportionate interference which, in the absence of evidence of a “pressing social need”, violates the principle of equal opportunities and political pluralism as the foundations of freedom of association in a democratic society.
Babalj’s request for a review of the legality of the aforementioned law was rejected due to the lack of jurisdiction of the Constitutional Court to decide.
The Constitutional Court pointed out that in the specific case, the laws were passed by the RS National Assembly and therefore there were no two BiH institutions that could have competing jurisdiction over the same issue, and therefore there was no dispute on that issue.
In the case concerning the request of 31 members of the RS National Assembly for the review of the constitutionality of the Decision on the establishment of the office and the procedure for appointing the Chief Negotiator and Deputy Chief Negotiator of BiH for conducting accession negotiations with the European Union, the Court concluded that the contested decision was not in accordance with Articles I/2 and IV/3(c) of the Constitution of BiH. Among other things, the Constitutional Court pointed out that the contested decision was not confirmed by the House of Peoples within the meaning of Article IV/3(c) of the Constitution of BiH, which stipulates that all legislative decisions must be approved by both houses.
Therefore, a decision adopted by one house of the legislative body under the powers under Article III/1 of the Constitution of BiH does not constitute a decision of the Parliamentary Assembly within the meaning of Article IV/4(a) of the Constitution of BiH. Accordingly, such a decision cannot produce legal effect because it is not in accordance with Article I/2 in conjunction with Article IV/3(c) of the Constitution of BiH.
Deciding on the effect of the decision of the Constitutional Court, in accordance with Article 61. Paragraph (1) of the Rules of the Constitutional Court, the Constitutional Court established the nullity of the contested decision ab initio.
Also, starting from the fact that this is an important issue of fulfilling the obligations of the institutions of BiH according to the requirements for the start of the negotiation process for accession to the EU, which the institutions of BiH have not yet fulfilled, the Constitutional Court ordered the Parliamentary Assembly to standardize, within six months from the date of delivery of this decision, in accordance with its powers, the procedure for appointing the Chief Negotiator and Deputy Chief Negotiator of BiH to conduct negotiations on the accession of BiH to the EU and the establishment of the office of the Chief Negotiator and Deputy Chief Negotiator of BiH.
Among other things, the Constitutional Court concluded that the contested provisions of Article 54. Paragraph 1. Item m) and Article 62. Paragraphs 3. and 4. of the Law on Higher Education of the Zenica-Doboj Canton are incompatible with Articles 4. and 63. of the Framework Law on Higher Education in BiH and Article I/2. of the Constitution of Bosnia and Herzegovina because they do not provide adequate protection against arbitrariness.
Also, they contradict the principle of academic self-governance and university autonomy because the reasons for which the board of directors can dismiss the rector are prescribed normatively broadly and imprecisely and allow the public authority to have a wide discretionary right to dismiss the rector, which is the only prescribed sanction, without the possibility of imposing any milder measure.
On the other hand, the Constitutional Court concluded that the provisions of Article 52 para. 1 and 2 of the Law on Higher Education of the Zenica-Doboj Canton in accordance with Articles 4, 14, 15, 16, 18, 22 and 63 of the Framework Law and with Article I/2. of the Constitution of BiH because the fact that the majority of the founders’ representatives are on the board of directors, from whose ranks the president of that body is also appointed, cannot per se lead to a violation of academic self-government and autonomy if the powers of the board of directors do not encroach on the sphere of academic issues, i.e. issues that are under the exclusive jurisdiction of the academic community and the senate.
The Constitutional Court rejected as inadmissible the request of 11 members of the House of Representatives of the BiH PA to establish the existence of a dispute between BiH and the RS entity in connection with the adoption of the Decision on the Election of the President of the RS Government and the Decision on the Election of the Members of the Government of that entity due to the lack of jurisdiction of the Constitutional Court of BiH to make decisions.
In the explanation of its decision, the Constitutional Court emphasized that the adoption of the disputed decisions did not give rise to a dispute within the meaning of Article VI/3.(a) of the Constitution of BiH, because it concerns the issue of the regularity of the procedure for electing the President and members of the Government of the RS, which is regulated by the Constitution of that BiH entity, and not by the Constitution of BiH.
The Constitutional Court of the RS is competent for this procedure, and the decision itself in no way calls into question the division of competences between different levels of government or institutions in BiH, for which the Constitutional Court of BiH is exclusively competent.
Considering the Information on the reactions of a part of the general, professional, political and other public, which included initiatives initiating consideration of the “existence of reasons for dismissal” of Judge Marin Vukoja of the Constitutional Court, submitted by the Vice President of the RS Ćamil Duraković and a representative in the House of Representatives of the Parliament of the Federation of BiH Dennis Gratz, the Constitutional Court emphasized that it considers issues of professional and ethical conduct of judges with particular care and responsibility, bearing in mind the importance of preserving public trust in the integrity and reputation of the Court.
The Court pointed out that judges are obliged, in performing their functions in public and private life and conduct, to take care to preserve the integrity and reputation of the Constitutional Court, as well as the personal reputation and integrity of the judge, the Constitutional Court of BiH announced.
