Christian Schmidt’s move, which suspended the decisions of the National Assembly of the Republika Srpska on non-application of the decisions of the High Representative and the Constitutional Court of Bosnia and Herzegovina, as well as the changes to the Criminal Code, entered into force. Schmidt’s regulations are clear, the level of penalties for undermining the institutions of Bosnia and Herzegovina is precisely defined. But, bearing in mind previous judicial battles with similar applications, we analyzed whether and how these actions could be proven in court? Considering the announcements from the RS, that this decision of the high representative will not be published in the Official Gazette, does this mean that Schmidt’s decisions have already been violated?
Any official at the state, entity, cantonal and local levels of government who does not apply, implement, execute or respect the final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, as well as the decision of the High Representative in Bosnia and Herzegovina, will be punished with imprisonment from six months to five years – clearly stated in Christian Schmidt’s decision.
At the same time, persons who are convicted of this criminal offense will face termination of official duties, loss of employment, deprivation of decorations and prohibition to perform duties in bodies financed by public funds.
Considering previous experiences with judicial institutions in Bosnia and Herzegovina and reports of similar cases, we ask whether there was room for punishment in earlier regulations, and whether these criminal acts can be proven in court proceedings?
“There were opportunities before, and that’s clear enough, if only there was a will to do it. Now it has been specified, it will be much easier, but the danger is that the prosecutors can declare anything and everything as such activities. The one who made these changes – he made them hastily and for daily needs. Later, some problems related to the wording in the law “and in another way” will arise. That ‘other way’ is the possibility of too much discretion on the part of prosecutors, and that can be a problem,” explains lawyer and former judge Vlado Adamović.
“It is difficult, at least for us in Bosnia and Herzegovina, that everything is clearly drawn and written for us. It is up to the Prosecutor’s Office to evaluate every possible such situation and to give it some qualification, i.e. to say that there is a basis for suspecting that the act was committed or not, and then to proceed with the procedure if it judges that there are well-founded doubts, and the Court is the one who will assess whether it was founded”, emphasizes constitutional law expert Nurko Pobrić.
Given that NSRS has previously made a decision not to publish the decisions of the high representative in the Official Gazette, many are rightly wondering what will happen if this latest decision does not find a place in the Gazette either? According to the views of the RS, it will not. What then, does the space for punishment open up?
“That decision that it will not be applied does not produce any legal effects, but some may be sanctioned in the sense that the director of the Official Gazette of the RS will be punished or dismissed or some similar measure. We will see what the high representative will do”, says Pobrić.
“It is the duty of the local authorities to implement this through the official gazettes so that the people know because the old Latin saying says: ‘Ignorantia iuris nocet’ – ‘Ignorance of the law hurts’. If people didn’t know that, then it could be a problem, but in a legal sense related to the legality and legitimacy of that law, i.e. its decisions, the fact that the parliaments decide to publish it in the Official Gazette is of no significance,” says Adamović.
And this is not just an old Latin saying and it is not only harmful, but also does not absolve us from responsibility, because if we break some norm, that is, some rule, there should be a concrete punishment for its perpetrators, but this has not been the practice in Bosnia and Herzegovina for years. There was never a shortage of threats from one side, and warnings from the other, but concrete sanctions were lacking.
Given that the president of the RS has been walking the red line for a long time, not changing his attitudes or behavior, the question arises whether Christian Schmidt’s next step will bring sanctions to Dodik, because yesterday he underlined that all options are on the table, reminding possibilities of wider use of Bonn powers.
