On 28 and 29 March 2019, the Constitutional Court held its 114th plenary session at which it considered requests for review of constitutionality.
In case no. U-2/18, the Constitutional Court granted a request lodged by nine delegates of the Council of Peoples of the Republika Srpska for review of the constitutionality of Article 2(1) of the Law on the Day of the Republic (Official Gazette of RS, 113/16). It was established that the provision, which reads: “On the basis of confirmed will of the Republika Srpska citizens, 9 January is recognized as the Republic Day”, is not in conformity with Article I(2) of the Constitution of Bosnia and Herzegovina, Article II(4) of the Constitution of Bosnia and Herzegovina in conjunction with Article 1.1 and Article 2.a) and c) of the International Convention for Elimination of All Forms of Racial Discrimination and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Right and Fundamental Freedoms and Article VI(5) of the Constitution of Bosnia and Herzegovina. The challenged provision was quashed and it was established that it would become ineffective on the day following the day of publication of the Decision in the Official Gazette of Bosnia and Herzegovina. In its Decision, the Constitutional Court referred to the relevant positions taken in its Decisions on Admissibility and Merits in cases nos. U 3/13 and U 10/16. In addition, the Constitutional Court pointed out that neither the Decision at hand nor the Decision in case no. U-3/13 called into question the existence of the holiday itself - the Day of the Republic. Furthermore, the Decision at hand or the Decision in case no. U 10/16 neither call into question nor exclude nor limit the competence of the National Assembly of the Republika Srpska to call a referendum with regard to the day to be celebrated as the Day of the Republika Srpska.
In case no. U 16/18, deciding on a request filed by twelve representatives of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina for review of the constitutionality of Article 395 (1) of the Civil Procedure Code of the Republika Srpska (Official Gazette of the Republika Srpska, 58/03, 85/03, 74/05, 63/07, 49/09 and 61/13) in the part relating to “the Public Attorney’s Office”, as well as Article 395 of the Civil Procedure Code of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation of Bosnia and Herzegovina, 58/03, 73/05, 19/06 and 98/15), the Constitutional Court established that the challenged provisions were in conformity with Articles I(2) and I(4) of the Constitution of Bosnia and Herzegovina, Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In the opinion of the Constitutional Court, the challenged provisions satisfy the standard of the “quality of law” within the meaning of the relevant criteria: precision, clarity and foreseeability, and the scope of discretionary right which the challenged provision affords to the public authorities, including the manner in which they are enforced. In addition, the Constitutional Court has indicated that just as any person has the right to freely choose a lawyer who will represent him/her in a litigation, so the State decided, through laws, to be represented by a Public Attorney’s Office. Furthermore, in the view of the Constitutional Court, the challenged provisions do not restrict the right of access to a court in any way whatsoever. Moreover, any proceedings initiated bear the risk of final outcome, including the costs incurred in connection with the proceedings.
In case no. U 1/19, the Constitutional Court rejected as inadmissible a request filed by the Court of Bosnia and Herzegovina (Mrs. Jadranka Brenjo, a Judge of the Court of Bosnia and Herzegovina) for review of the compatibility of the Instruction Amending the Instruction on the Procedure for Administering Indirect Elections for the Bodies of Authority in BiH under the Election Law of Bosnia and Herzegovina (Official Gazette of BiH, 91/18), since the Constitutional Court of Bosnia and Herzegovina is not competent to take a decision. The Constitutional Court concluded that the case was not about the situation referred to in Article VI(3)(c) of the Constitution of Bosnia and Herzegovina. In addition, the Constitutional Court referred to the relevant views taken in its Decision no. U 24/18 of 31 January 2019.
In case no. U 3/19, the Constitutional Court rejected as inadmissible a request filed by Ms. Borjana Krišto, Chair of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, for review of the constitutionality of the Instruction Amending the Instruction on the Procedure for Administering Indirect Elections for Bodies of Authority of Bosnia and Herzegovina under the Election Law of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, 91/18), since the Constitutional Court of Bosnia and Herzegovina is not competent to take a decision. In the opinion of the Constitutional Court, the applicant’s arguments were not capable of calling into question the view which the Constitutional Court expressed in its Decision no. U 24/18 of 31 January 2019, which may (also) be applied to the allegations expressed in the request for review of constitutionality at issue.
All the decisions taken at the 114th session in respect of the requests for review of constitutionality will be communicated to the applicants within one month and published on the official website of the Constitutional Court of Bosnia and Herzegovina as soon as possible.
