The Constitutional Court has adopted the following decisions:

Decision no. U-13/24 - The Constitutional Court found that Article 22(5), Article 24(4), Article 26 and Article 30 of the Law on Referendum and Citizens’ Initiative of the Republika Srpska (Official Gazette of the RS, 61/24 – “the Law”) are not compatible with Article I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina (“BiH”). It has therefore repealed those provisions ab initio and determined that they shall cease to have effect from the date of publication in the Official Gazette of the Republika Srpska, 61/24.

In its reasons, the Constitutional Court, among other things, recalled its case law of interpretation of Articles I(2) and III(3)(b) of the Constitution of BiH. Next, the Constitutional Court indicated that it followed from the content of the contested provisions and the applicant's submissions that the case essentially raised the issue of whether, for the purposes of holding a referendum and launching of a citizens' initiative, the Republika Srpska Election Commission (“the RS Election Commission”) could have responsibility to prescribe the form and content of a voters register by a rulebook (Article 22(5) of the Law), to issue a rulebook to complete and verify the final extracts from the voters register to be used for conducting a referendum and to prescribe the deadlines and method for completing and verifying the final voters register and submit data on changes in the records of citizens who vote abroad (Article 24(4) of the Law), to receive the necessary data through the Ministry of Interior for the purpose of maintaining the voters register and making extracts from the voters register (Article 26) and to issue an instruction determining the method and procedure regarding  the extracts from the voters register for voters who are homebound due to old age, illness or disability or who are in institutions for criminal and misdemeanour sanctions or other institutions but who have the right to vote in a referendum (Article 30).

Thereafter, the Constitutional Court, keeping to the bounds of the request for a review of constitutionality, cited its case law (decisions U-4/12 and U-12/24) where it examined the issue of competence of the election commission in the Republika Srpska to decide on issues related to the voters register for the needs of general and local elections in that Entity. In that regard, the Constitutional Court concluded that neither the Election Law nor the Decision taken by the Central Election Commission (“the CEC”) based on the powers under the Election Law prescribed any responsibility of the RS Election Commission to decide on the voters register or to issue regulations related to the voters register for the purpose of conducting a referendum, nor can it be inferred that it has a responsibility to receive the necessary data through the Ministry of Interior. In contrast, the Constitutional Court observes that it follows from the content of Article 2.9 paragraph 4 of the Election Law that the CEC is the only body responsible for accuracy, update and overall integrity of the Central Voters Register for the territory of BiH. Furthermore, it follows from Article 3.1 of the Election Law that, among other things, the Central Voters Register is established, maintained and used for conducting referendums, leading to a conclusion that only the information from that register kept by the CEC can be used for conducting a referendum. In particular, Article 3.7 paragraph 3 of the Election Law stipulates that the CEC may issue an extract from the Central Voters Register for, among other things, conducting a referendum. The Constitutional Court therefore concluded that the provisions of the Election Law of Bosnia and Herzegovina that relate to the Central Voters Register are applicable to the procedure of conducting a referendum and a citizens’ initiative in the Republika Srpska.

Based on that, the Constitutional Court, having applied the principles and views from its previous case law, concluded that the contested provisions of Article 22(5), Article 24 (4) and Articles 26 and 30 of the Law constituted introduction of norms contrary to the explicit provisions of Article 2.9 paragraph 4, Article 3.1, Article 3.4 paragraph 3, Article 3.5 paragraph 2, Article 3.6 paragraph 2(e), Article 3.6 paragraph 7, Article 3.7 paragraph 3 and Article 3.14 of the Election Law of BiH as a “a decision of an institution of Bosnia and Herzegovina”. The Constitutional Court stressed that the contested provisions enacted by the National Assembly, in substance, reiterated the wording of the provisions of the Election Law of BiH that relate to the responsibilities of the CEC and, without any constitutional authority, afforded the responsibility to regulate such matters with a view to conducting a referendum and a citizens' initiative to the RS Election Commission. In this way, as noted, the National Assembly has completely disregarded Article 20.11 of the Election Law stipulating an obligation of the Entities to harmonise their laws and regulations with the Election Law. The Constitutional Court therefore concluded that Article 22(5), Article 24(4) and Articles 26 and 30 of the Law enacted by the National Assembly are not compatible with Article I(2), Article III(3)(b) and Article VI(5) of the Constitution of Bosnia and Herzegovina because they have been enacted in contravention of provisions of the Election Law, thereby violating the constitutional principle of rule of law under Article I(2) of the Constitution of BiH, prescribing that the Entities shall comply with the laws at the level of Bosnia and Herzegovina, and the principle of compliance with “the decisions of the institutions of Bosnia and Herzegovina” under Article III(3)(b) of the Constitution of Bosnia and Herzegovina.

Decision no. U-19/24 - The Constitutional Court found that Article 6 of the Law Amending the Law on Insurance Companies (Official Gazette of the Republika Srpska, 74/10), reading as follows: “In Article 18, paragraph 4, the words “independently or” are added after the word “may” - is not compatible with Articles I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina. The Constitutional Court found that the said provisions shall be rendered ineffective the next day following the date of publication of the decision of the Constitutional Court in the Official Gazette of Bosnia and Herzegovina.

The Constitutional Court noted that the disputed provision expanded the authority of the RS Insurance Agency in international relations enabling the RS Insurance Agency to independently or in collaboration with the BiH Insurance Agency enter into collaboration agreements with relevant bodies in other countries that, among other things, envisage exchange of information. In this regard, the Constitutional Court invoked its previous decisions in which the issue of the authority of the Insurance Agency of Bosnia and Herzegovina was considered (number U-17/09 of 27 March 2010, and number U-11/15 of 6 April 2016), recalling that the BiH Insurance Agency Law constitutes a binding legal framework with which the Entity insurance legislation must be complied.  

The Constitutional Court noted that Article 9(6) of the BiH Insurance Agency Law stipulates that the BiH Insurance Agency is responsible for entering into information exchange agreements with other countries’ relevant bodies, in collaboration with Entity insurance supervision agencies. Based on this, the Constitutional Court concluded that such authorization of the RS Insurance Agency is not allowed under Article 9(6) of the BiH Insurance Agency Law. Furthermore, the Court reasoned that Article 9 gives to the BiH Insurance Agency the competence to represent Bosnia and Herzegovina in all issues related to creation of insurance organizations’ subsidiaries, representative offices or affiliates in any one of the Entities, the Brčko District or third countries. This means that, under that provision only the BiH Insurance Agency “enters into collaboration agreements with appropriate authorities of other countries, collaborating with the Entity insurance supervisory agencies in the process”. In light of the referenced provisions of the State law, the Constitutional Court concluded that the Entity agencies do not have an independent power of entering into international information exchange agreements without collaboration with the BiH Insurance Agency. In view of the foregoing, the Constitutional Court concluded that the disputed provision is in contradiction to Article 9(6) of the BiH Insurance Agency Law and, accordingly, Articles I(2) and III(3)(b) of the Constitution of BiH.

Decision no. U-2/25 - The Constitutional Court of Bosnia and Herzegovina found that the Law Amending the Law on the Use of the Flag, Coat of Arms and Anthem (Official Gazette of the Republika Srpska, 4/25) is not compatible with Articles I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina taken in conjunction with paragraph 6 of the Preamble of the Constitution of Bosnia and Herzegovina. It has therefore repealed these provisions ab initio and determined that they shall be rendered ineffective as of the date of its publication in the Official Gazette of the Republika Srpska, 4/25 of 24 January 2025.  

In the reasoning of the decision, the Constitutional Court reminded of its current case law in interpreting Articles I(2) and III(3)(b) and line 6 of Preamble of the Constitution of BiH. It emphasized that the Law on Use of Flag, Coat of Arms and Anthem, prior to adoption of disputed provision containing provisions concerning protocol-related and technical issues of use of symbols of RS alongside symbols of foreign countries. However, it has found that the disputed Law Amending the Law on Use of Flag, Coat of Arms and Anthem enables a continuous use of symbols of a foreign country without a clear purpose, leaving room for selective, arbitrary and politically motivated practice that per se undermines the statehood, sovereignty, territorial integrity and political independence of BiH.

The Constitutional Court stresses that symbols such as the flag and anthem are very important as these symbols reflect the constitutional order and legal structure of a country. The Constitutional Court further stressed that neither the Parliamentary Assembly itself, nor the Entity legislators have the competence to authorize that BiH be represented by symbols of a foreign country, as such would run counter to the commitment to BiH’s sovereignty, territorial integrity and political independence in accordance with international law. The Constitutional Court also notes that it is beyond dispute that the National Assembly, as the Entity’s legislative body, is authorised to determine the appearance and content of the symbols of the RS, as well as the manner and place of their use as well as that it has the competence to regulate how foreign symbols must be displayed by authorities or institutions of the RS. This competence must be exercised in consonance with the constitutional commitment towards BiH’s sovereignty, territorial integrity and political independence however.

The Constitutional Court observes that the disputed provision enables the display of symbols of certain foreign countries in a manner that obviously conveys to the people of BiH that the foreign country has played or continues to play some role in matters of governance within the BiH. In addition, it may convey the Entity’s fidelity to the government of the foreign country. Therefore, such a provision is prima facie incompatible with the Entity’s commitment to the sovereignty, territorial integrity, political independence and international subjectivity of BiH. Namely, it simply means that allowing for the representation of entities and their actions within the state of BiH, by symbols that are not determined by the Entity law on flag, coat of arms and anthem, or the State laws on flag, coat of arms and anthem, violates Articles I(2) and III(3)(b) of the Constitution of BiH taken in conjunction with paragraph 6 of the Preamble of the Constitution of BiH. In addition, use of the qualifier ‘countries with which some or all constituent peoples or Others or citizens in the Republika Srpska share a common historical, cultural and traditional heritage’ in the disputed provision opens a possibility for the selective use of symbols of foreign countries, that could be discriminatory given the constitutional structure of BiH. Therefore, the Constitutional Court concludes that the Law Amending the Law on the Use of the Flag, Coat of Arms and Anthem is not compatible with Articles I(2) and III(3)(b) of the Constitution of BiH taken in conjunction with paragraph 6 of the Preamble of the Constitution of BiH.