The Constitutional Court of Bosnia and Herzegovina (BiH) held the 144th plenary session on 30 May 2024. At the session, the Constitutional Court considered and decided on very important questions relating to the further functioning of the Constitutional Court, as well as requests seeking a review of constitutionality and appeals.
In order to facilitate further unhindered functioning of the Constitutional Court, the Constitutional Court adopted a Decision on Amendments to the Rules of the Constitutional Court of BiH by adding a new Article 99a to the Rules of the Constitutional Court of BiH after Article 99 (Termination of Office), reading as follows:
Article 99a
(Exceptional Extension of a Judge’s Term of Office)
(1) Exceptionally, if the relevant authority does not elect a new judge by the date of termination of office of a judge by reason of age, the judge in question shall continue performing his/her duties until the relevant authority elects a new judge pursuant to Article 99 of these Rules and until the newly-elected judge assumes office in accordance with Article 82 of these Rules.
(2) The judge whose term of office is extended in accordance with paragraph 1 of this article may exercise all rights and shall perform all obligations under the Constitution of Bosnia and Herzegovina and these Rules.
The Constitutional Court adopted this decision in view of the opinion given by the Venice Commission on 18 March 2024, providing, among other things, as follows: “Considering the overarching constitutional principle of a functioning Constitutional Court, the Venice Commission finds that allowing acting judges to continue their mandate beyond the age of 70 until a successor is appointed would not run counter to Article VI(1)c of the Constitution of Bosnia and Herzegovina and that, in case the term of the current judges is indeed extended, the work of the Constitutional Court would continue to be in accordance with the Constitution and therefore legitimate. Given the status of the Rules of the Constitutional Court in the hierarchy of norms, such a possibility can be and would need to be stipulated in the Rules”.
In addition, at this session, the Constitutional Court, in accordance with Articles 81, 83 and 86 of its Rules, elected a new president and vice-presidents as the term of office of the current president Valerija Galić and vice-presidents Mirsad Ćeman and Helen Keller ended. Ms. Seada Palavrić was elected new President of the Constitutional Court and her term of office would commence as of 1 June 2024. Ms. Valerija Galić and Ms. Angelika Nussberger were elected new vice-presidents of the Constitutional Court and their term of office too would commence as of 1 June 2024.
Pursuant to Article 82 of the Rules of the Constitutional Court, Mr. Marin Vukoja, the newly-elected judge of the Constitutional Court, gave and signed a solemn declaration at today’s plenary session, thereby assuming the duties of a judge of the Constitutional Court of BiH.
Of the decisions adopted by the Constitutional Court at the plenary session, the Constitutional Court singles out the following decisions:
U-5/23 – Having deliberated on the requests filed by Mr. Denis Bećirović, Member of the Presidency of Bosnia and Herzegovina, Mr. Željko Komšić, Member of the Presidency of Bosnia and Herzegovina, 11 members of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina and five delegates of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina seeking a review of constitutionality of the Law on Immovable Property Used for the Functioning of Public Authorities (Official Gazette of the Republika Srpska, 16/23), the Constitutional Court established that the Republika Srpska (RS) lacks a constitutional competence to regulate the legal matter that is the subject of the disputed law (the issues of immovable State property) as that, in accordance with relevant provisions of the Constitution of BiH, is a responsibility of BiH.
U-1/24 - Having deliberated on the request filed by the Court of BiH seeking a review of constitutionality of Article 12 of the Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina, the Constitutional Court established that the disputed provision is compatible with the Constitution of BiH and the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention).
U-2/24 – Having deliberated on the request filed by Mr. Kemal Ademović, Chair of the House of Peoples of the Parliamentary Assembly of BiH, seeking a review of constitutionality of the Law on Manufacturing of Weapons and Military Equipment in the Republika Srpska (Official Gazette of the RS, 1/24), the Constitutional Court found that some provisions of that law are incompatible with the Constitution of BiH. They are found incompatible because the Republika Srpska, in adopting these provisions, failed to harmonize them with the provisions of the BiH Law establishing the obligation to notify, obtain licence and consent from the Ministry of Foreign Trade and Economic Relations of BiH as well as the provision on the maintenance of records in the central register of the same ministry for all legal entities engaged in manufacturing and overhaul of weapons and military equipment.
U-3/24 – In this case, the Constitutional Court granted a request seeking adoption of an interim measure. The applicant – Mr. Kemal Ademović, Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina – sought a review of constitutionality of the Decision on Changing the Purpose of Forestland and Temporary Use of Forestland for Other Purposes of the Government of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation of BiH, 89/23 and 100/23). By this decision, the Constitutional Court suspended the disputed decision of the Government of the Federation of BiH pending a final decision in the case.
U-5/24 – Having deliberated on the request filed by the Cantonal Court in Sarajevo seeking a review of constitutionality of Article 147(1) of the Law on Pension and Disability Insurance of the Federation of BiH in the part stipulating “with a place of residence in the Federation or the Brčko District of Bosnia and Herzegovina” and Article 2(3) of the Rulebook on Reimbursement of Funeral Expenses of the Federation of BiH, the Constitutional Court established that the disputed provisions are not compatible with the Constitution of BiH and the European Convention as they do not strike a reasonable balance of proportionality between the means employed and aim sought to be achieved.
U-6/24 - In this case, the Constitutional Court granted a request seeking adoption of an interim measure. The applicant – 13 Members of the House of Representatives of the Parliamentary Assembly of BiH – filed a request seeking settlement of a dispute with the RS Entity on account of the Decision on the Method and Conditions of the Sale of Real Property owned by the Republika Srpska located within the Special Area of Jahorina by public bidding (Official Gazette of the RS, 114/23 of 29 December 2023). By this decision, the Constitutional Court suspended the application of the disputed decision pending a final decision in the case.
AP-1773/23 (Ivica Kosić) – In this case, the Constitutional Court concluded that there has been a violation of the appellant's right to liberty and security as the ordinary court ordered the appellant into detention despite the facts that the challenged rulings do not contain sufficient and relevant reasons regarding the existence of a reasonable suspicion. This is so because the ordinary courts failed to explain “facts or information which would satisfy an objective observer that the person concerned may have committed the offence”, but merely referred to the confirmed indictment. Furthermore, there has been a violation of the appellant's right to liberty and security of person as the appellant’s attorney was not present when the appellant was giving a statement on the motion for pre-trial detention. This was in violation of the Criminal Procedure Code of the Federation of BiH, which is the reason why the deprivation of liberty was not in accordance with “a procedure prescribed by national law”.
AP- 448/24 (Ranko Debevec and Osman Mehmedagić) – in this case, the Constitutional Court, among other things, granted in part the appeal filed by Mr. Ranko Debevec (the first appellant), concluding that there has been a violation of the first appellant’s right to an impartial tribunal as an aspect of the right to liberty and security of person because the first appellant’s fear that the judge deciding on detention was partial, could have been considered objectively justified.
All the decisions adopted at the plenary session will be served on the applicants/appellants within a period of one month and published on the website of the Constitutional Court of BiH as soon as possible.
