On 23 and 24 January 2025, the Constitutional Court resumed its 153rd session, deliberating on requests for constitutional review and appeals.

Of these decisions, the Constitutional Court singles out the following:

U-10/24 – In this case, the Constitutional Court dealt with a request of the Court of Bosnia and Herzegovina (Judge Vesna Trifunović), for a review of compatibility of the Law on the Registration of Legal Entities Established by Institutions of Bosnia and Herzegovina. The Constitutional Court has found that the disputed Law is not compatible with Article I(2) of the Constitution of BiH and Article 2 of Annex II to the Constitution of BiH on the grounds that it does not address the issue of registration of the Academy of Sciences and Arts of BiH as legal entity established by a law passed by the SR BiH, which is still in force by virtue of the constitutional principle of continuation of laws. The Constitutional Court has noted that the principle of continuation of laws is a mechanism ensuring the principle of the rule of law in Bosnia and Herzegovina.

The referenced mechanisms are stipulated in Article I(2) of the Constitution of Bosnia and Herzegovina as read with Article 2 of Annex II to the Constitution of Bosnia and Herzegovina. The Constitutional Court recalls that Article 2 of Annex II to the Constitution of Bosnia and Herzegovina stipulates the constitutional principle of continuation of laws that all laws that were in effect within the territory of Bosnia and Herzegovina when the Constitution of Bosnia and Herzegovina entered into force would remain in effect until otherwise determined by a competent governmental body of Bosnia and Herzegovina. The principle of rule of law under Article I(2) of the Constitution of Bosnia and Herzegovina, in the context of the principle of continuation of laws under Article 2 of Annex II to the Constitution of Bosnia and Herzegovina, is a mechanism that ensures that the laws passed prior to the entry into force of the Constitution of Bosnia and Herzegovina continue to apply in a situation where “a competent governmental body of Bosnia and Herzegovina” has not contested the constitutionality of such laws.      

The Constitutional Court contends that it is beyond dispute that the Law on the Academy of Sciences and Arts of BiH, by virtue of the principle of continuation of laws under Article 2 of Annex II to the Constitution of BiH, is part of the legal system of Bosnia and Herzegovina, as already concluded this in decision AP-1679/17. The Constitutional Court recalls with regard to the status of the Law on the Academy of Sciences and Arts of BiH that competent governmental body, in terms of Article 2 of Annex II to the Constitution of Bosnia and Herzegovina, did not “determine otherwise” on the subject of validity of the legal status of this law. This means that the Law on the Academy of Sciences and Arts of BiH continues to be part of the legal system of BiH according to Article 2 of Annex II to the Constitution of Bosnia and Herzegovina.

However, the disputed Law has limitations in relation to the subject of registration of legal entities, as the registration refers solely to the legal entities being established or established by institutions of Bosnia and Herzegovina after the Constitution of BiH entered into force (Articles 1 and 18). By contrast, the disputed Law does not cover the legal entities established by laws passed before the Constitution of Bosnia and Herzegovina entered into force. The Academy of Sciences and Arts of BiH is one such entity. Because of this legal arrangement and the absence of another legal regulation relating to the Academy of Sciences and Arts of BiH, the current legal regulations prevent the Academy from fully exercising the rights covered by the applicable Law on the Academy of Sciences and Arts of BiH. The Constitutional Court therefore notes that this restriction under the disputed Law directly calls into question the application of the Law on the Academy of Sciences and Arts of BiH as a law in effect in the legal system of Bosnia and Herzegovina, which results in the incompatibility of the disputed Law with Article I(2) of the Constitution of Bosnia and Herzegovina and Article 2 of Annex II to the Constitution of Bosnia and Herzegovina.

AP-1095/22 (BANKE SRPSKE a.d. Banja Luka in bankruptcy) – In this case, the Constitutional Court found a violation of the appellant’s right to property because the appellant, as an enforcement creditor, was requested to protest the bill of exchange, which had the “no protest” clause, in order for it to be considered an authentic document based on which the appellant could initiate an enforcement proceeding. In addition, the Constitutional Court found a violation of the appellant’s right to a fair trial within a reasonable time because there was a period of inactivity of seven years in the enforcement proceeding, which is urgent by its nature and which lasted 10 years in total.

AP-3895/22 (minor F.B. and Others) – In this case, the Constitutional Court, inter alia, partially granted an appeal of 13 minors appellants (F. B., A. Ć., A. A., H. T., DŽ. M., I. S., A. S., M. H., A. S. 2, A. V., DŽ. A., R. A., M. A., E. H., M. B. and I. B.). It found a violation of the right to a reasoned decision as a segment of the right to a fair trial, since the ordinary courts, in the enforcement proceedings, failed to consider all relevant factors that were objectively relevant for decision-making in proceedings related to the elimination of the consequences of discrimination. The contested ruling of the County Court in Banjaluka stayed the enforcement proceedings with regard to these appellants because, in the court’s opinion, the enforcement became impossible due to the fact that some appellants no longer had the status of pupils of the Elementary School „Sveti Sava in Kotor Varoš, which was therefore not able to perform the actions ordered in the enforceable document. In particular, in the previous civil proceedings, the appellants, along with other children (128 in total), all Bosniacs, as well as pupils of the Regional School in Vrbanjci filed a lawsuit against Republika Srpska and Elementary School “Sveti Sava” in Kotor Varoš for, inter alia, failure to introduce an ethnic-related group of subjects and the failure to employ returnee teachers to teach those subjects, seeking the right to education under equal conditions. Those proceedings were concluded with a judgment of the Supreme Court of the Republika Srpska, wherein the appellants' claim was granted and the defendants were ordered undertake actions with a view to eliminating discrimination against the appellants and the consequences thereof and to ensure their right to equal treatment.

The Constitutional Court considers that the reasoning from the Supreme Court’s judgement confirms the claims in the appeal that the circumstances that certain appellants did not attend the elementary school were known during the civil proceedings and that they did not have an effect on the adoption of the final judgement of the Supreme Court. Therefore, the Constitutional Court points out that in terms of the content of Article 47 paragraph 1 of the Law on Enforcement Proceedings and Article 63 of the Law on Enforcement Proceedings and other relevant provisions, it is necessary to give a clear and detailed answer to the legal question as to why the ordinary courts, based on the reasons known during the civil proceedings, first dismissed the objections of the enforcement debtors and then assessed the same reasons as a reason for staying the enforcement proceedings. In this regard, it was necessary to provide a clear and sufficient reasoning as to whether it was legally possible, in terms of the relevant provisions of the Law on Enforcement Proceedings, that the circumstances that existed at the time of the judgement as enforceable document and did not affect its legal validity subsequently constituted a reason for the stay of the enforcement proceedings.

Considering the appellants’ allegations in which they challenge the conclusion of the ordinary courts that enforcement was not possible because the 13 appellants were not pupils of the Elementary School-enforcement debtor, the Constitutional Court points out that the provision of Article 21, paragraph 4 of the Law stipulates that the provisions of the law governing real rights, or obligations, and other regulations shall apply appropriately to the substantive and legal prerequisites, and consequences of the enforcement proceedings. Therefore, it is an indisputable fact that in this case it concerned the implementation of the Supreme Court’s judgement, which found discrimination against A.A. and other children of Bosniac ethnicity (128 in total), including the appellants who filed the motion for enforcement. For this reason, in terms of the aforementioned provision, the ordinary courts were required to ensure that the provisions of the LPD, the Framework Law, the Agreement and the Law on Primary Upbringing and Education were applied to the substantive and legal prerequisites and to the consequences of the enforcement proceedings. The Constitutional Court points out that the content of those laws imposes the obligation to comply with high standards and principles of human rights, which ensure equal access to and equal opportunities in education and upbringing without discrimination on any basis. The content of those laws also prescribes the obligation of public authorities to establish a framework for the exercise of equal rights and opportunities for all persons in Bosnia and Herzegovina and to organize a system of protection from discrimination.

AP-4677/22 (Duško Suvara) – The Constitutional Court has dismissed the appellant’s appeal against the judgment of the Court of BiH by which the appellant’s appeal against the first instance judgment was dismissed. Under the first instance judgment, the Court of BiH dismissed the defence motion seeking application of Article 49 of the Criminal Code of SFRY.  It was noted that the Trial Panel, when interpreting Article 49 of the Criminal Code of SFRY, was right to take the view that it was not possible to apply the referenced provision in the situation where the accused had already served a previous prison sentence regardless of the fact that the offences were committed before the offence for which he is currently being tried. In its judgment, in the earlier proceedings, the Supreme Court already applied the provisions on the concurrence of offences by which the prison sentences imposed on the appellant for very serious criminal offences had been taken as fixed. In view of the appellant’s exceptionally high criminal intent and persistence in committing serious criminal acts, the Appellate Panel endorsed the Trial Panel’s finding that the purpose of punishment in the case in question can only be achieved if, in addition to the sentence imposed on him by the judgment of the Supreme Court, the appellant fully served the sentence imposed by the disputed judgment. By applying the provisions on imposing a single punishment for concurrent offences under Article 48 of the Criminal Code of SFRY, the appellant’s punishment of six year’s imprisonment would be annulled, which in no case was the intention of the legislator when prescribing the provisions on meting out a punishment for a convicted person, especially when it comes to the application of the aforementioned provision in a situation where a person had already served a previous sentence. The Constitutional Court finds no arbitrariness in the conduct of the Court of BiH in the disputed judgment.

AP-3179/24 (Alliance of Independent Social Democrats – SNSD) – In this case the Constitutional Court held, inter alia, that the contested decisions of the Court of BiH and the Central Election Commission of BiH have not been in violation of the appellant’s right to free elections. The appellant had an opportunity in the renewed proceedings to participate effectively in the protection of its electoral rights, and the Court of BiH reasoned its decision in detail and responded to all relevant allegations of the appellant, hence the Constitutional Court finds no arbitrariness in the decision.  

All decisions adopted at the plenary session will be delivered to the applicants/appellants within one month and published as soon as possible.