On 26 and 27 March 2015, the Constitutional Court of Bosnia and Herzegovina held its 91st plenary session on which it decided on a number of requests for review of constitutionality and several appeals on alleged violations of the human rights and fundamental freedoms.
For the illustration purposes, we emphasize the following:
Constitutional Court of BiH, inter alia, decided on the request of Mr. Zeljko Komsic, (a member of the Presidency of Bosnia and Herzegovina at the time of filing the request) for the review of constitutionality of the certain provisions of the Constitution of the Republika Srpska, the Constitution of the Federation of Bosnia and Herzegovina and the Election Law of Bosnia and Herzegovina, which are, in the opinion of the applicant, not in conformity with provisions of Protocol No. 12 to the European Convention, provisions of the Constitution of BiH in conjunction with the International Convention on the Elimination of All Forms of Racial Discrimination as well as the International Covenant on Civil and Political Rights. The applicant holds that the challenged constitutional provisions of the Entities, according to which the Presidents and Vice-Presidents must come from among the constituent peoples, constitute a violation of the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the members of “Others” as well as that they are inconsistent with Decision of the European Court of Human Rights in the case of Sejdic and Finci, since they make it impossible for “Others” to participate equally in the exercise of these public functions.
The Constitutional Court of BiH has partially granted the request of Mr. Zeljko Komsic and established that Article 80(2)(4) (Item 1(2) of the Amendment LXXXIII) and Article 83(4) (Item 5 of the Amendment XL as amended by Item 4 of the Amendment LXXXIII) of the Constitution of the Republika Srpska, Article IV.B.1, Article 1(2) (amended by the Amendment XLI) and Article IV.B.1, Article 2(1) and (2) (amended by the Amendment XLII) of the Constitution of the Federation of Bosnia and Herzegovina, and Articles 9.13, 9.14, 9.16 and 12.3 of the Election Law of Bosnia and Herzegovina are not in conformity with Article II(4) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
However, the Constitutional Court shall not quash the aforementioned provisions of the Constitutions of the Entities and the Election Law, it shall not order the Parliamentary Assembly of BiH, National Assembly and Parliaments of the Federation to harmonize the aforementioned provisions until the adoption, in the national legal system, of constitutional and legislative measures removing the current inconsistency of the Constitution of Bosnia and Herzegovina and Election Law with the European Convention, which was found by the European Court in the referenced cases.
The Constitutional Court of BiH dismissed as ill-founded the request for review of the constitutionality of Articles 9.15, 12.1 and 12.2 of the Election Law of Bosnia and Herzegovina) as it established that these Articles are in conformity with Article II(4) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Constitutional Court of BiH decided on the request lodged by Mr. Zeljko Komsic (member of the Presidency of BiH at the time of lodging the request) for a review of constitutionality of the Law on Primary Education and Upbringing of the Republika Srpska Law on Secondary Education and Upbringing of the Republika Srpska, Laws on Primary Education and Upbringing and Laws on Secondary Education and Upbringing of all ten cantons in the Federation of Bosnia and Herzegovina.
In the request, inter alia, the applicant states that the reasons for filing this request are different discriminatory examples existing in the education system in Republika Srpska and cantons of the Federation of BiH. In his opinion, the members of the constituent peoples in some regions of Bosnia and Herzegovina are prevented from being educated in the manner so as to respect language, culture and religion of those pupils. The applicant indicates that the legislator at the State level determined the framework which must be applied to the education system at all levels. By adoption of the Framework Law on Primary and Secondary Education in Bosnia and Herzegovina, the general principles and aims of education deriving from generally accepted, universal values of democratic society and its own value systems based on specifics of national, historic and cultural and religious tradition of peoples and national minorities living in Bosnia and Herzegovina are clearly stipulated.
Constitutional Court dismissed the applicant’s request as ill-founded as it concluded that the Law on Primary Education and Upbringing of the Republika Srpska the Law on Secondary Education and Upbringing of Republika Srpska, the Law on Primary Education and Upbringing and Law on Secondary Education and Upbringing of all 10 Cantons in the Federation of Bosnia and Herzegovina in the context of the request in question are not inconsistent with the provisions of Articles II(1), II(4) and III(b) of the Constitution of Bosnia and Herzegovina, Article 14 of the European Convention in connection with the provisions of Article 2 of Protocol no. 1 to the European Convention and Article 1 of Protocol no. 12 to the European Convention.
Constitutional Court of BiH, inter alia, examined the request of thirty six (36) representatives of the National Assembly of Republika Srpska for review of the constitutionality of certain provisions of the constitution of one number, more closely specified in the request, of cantons and statutes of municipalities in the Federation of BiH, in regards to designs of the coat of arms and/or flags of the administrative units (municipalities and/or cantons) on the territory of the Federation of Bosnia and Herzegovina which in the opinion of the applicant, contain elements that are inconsistent with Articles II(1), II(4) and III(3)(b) of the Constitution of Bosnia and Herzegovina, since as elements in appearance of coat of arms and flags determine also the elements of religious and national character (symbols of crescent, fleur-de-lys, chessboard, outlines of religious objects etc.) which symbolize only one constituent people, In that manner, in his opinion, representatives of other peoples are placed into an unequal position.
The Constitutional Court rejected this request as it is not competent to take a decision, as inadmissible, inter alia, as it considers that the compliance with the principle of the constituent peoples and principle of non-discrimination with regards to the manner of stipulation of symbols of the administrative and local units, as a matter which is under exclusive of jurisdiction of the Entities, primarily raises the issue of conformity of the acts containing the provisions about this matter with the Entity constitution and final authority regarding this matter is the Entity constitutional court.
Constitutional Court of BiH also decided on a number of appeals on alleged violations of the appellants’ rights. In cases in which it found a violation of the rights, the Court granted the appeals or rather dismissed them as ill-founded in cases in which it found no such violation.
All decisions adopted at the session shall be published on the webpage of the Constitutional Court of Bosnia and Herzegovina within a time limit of one month, following the delivery to the appellants.
For the illustration purposes, we emphasize the following:
Constitutional Court of BiH, inter alia, decided on the request of Mr. Zeljko Komsic, (a member of the Presidency of Bosnia and Herzegovina at the time of filing the request) for the review of constitutionality of the certain provisions of the Constitution of the Republika Srpska, the Constitution of the Federation of Bosnia and Herzegovina and the Election Law of Bosnia and Herzegovina, which are, in the opinion of the applicant, not in conformity with provisions of Protocol No. 12 to the European Convention, provisions of the Constitution of BiH in conjunction with the International Convention on the Elimination of All Forms of Racial Discrimination as well as the International Covenant on Civil and Political Rights. The applicant holds that the challenged constitutional provisions of the Entities, according to which the Presidents and Vice-Presidents must come from among the constituent peoples, constitute a violation of the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the members of “Others” as well as that they are inconsistent with Decision of the European Court of Human Rights in the case of Sejdic and Finci, since they make it impossible for “Others” to participate equally in the exercise of these public functions.
The Constitutional Court of BiH has partially granted the request of Mr. Zeljko Komsic and established that Article 80(2)(4) (Item 1(2) of the Amendment LXXXIII) and Article 83(4) (Item 5 of the Amendment XL as amended by Item 4 of the Amendment LXXXIII) of the Constitution of the Republika Srpska, Article IV.B.1, Article 1(2) (amended by the Amendment XLI) and Article IV.B.1, Article 2(1) and (2) (amended by the Amendment XLII) of the Constitution of the Federation of Bosnia and Herzegovina, and Articles 9.13, 9.14, 9.16 and 12.3 of the Election Law of Bosnia and Herzegovina are not in conformity with Article II(4) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
However, the Constitutional Court shall not quash the aforementioned provisions of the Constitutions of the Entities and the Election Law, it shall not order the Parliamentary Assembly of BiH, National Assembly and Parliaments of the Federation to harmonize the aforementioned provisions until the adoption, in the national legal system, of constitutional and legislative measures removing the current inconsistency of the Constitution of Bosnia and Herzegovina and Election Law with the European Convention, which was found by the European Court in the referenced cases.
The Constitutional Court of BiH dismissed as ill-founded the request for review of the constitutionality of Articles 9.15, 12.1 and 12.2 of the Election Law of Bosnia and Herzegovina) as it established that these Articles are in conformity with Article II(4) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Constitutional Court of BiH decided on the request lodged by Mr. Zeljko Komsic (member of the Presidency of BiH at the time of lodging the request) for a review of constitutionality of the Law on Primary Education and Upbringing of the Republika Srpska Law on Secondary Education and Upbringing of the Republika Srpska, Laws on Primary Education and Upbringing and Laws on Secondary Education and Upbringing of all ten cantons in the Federation of Bosnia and Herzegovina.
In the request, inter alia, the applicant states that the reasons for filing this request are different discriminatory examples existing in the education system in Republika Srpska and cantons of the Federation of BiH. In his opinion, the members of the constituent peoples in some regions of Bosnia and Herzegovina are prevented from being educated in the manner so as to respect language, culture and religion of those pupils. The applicant indicates that the legislator at the State level determined the framework which must be applied to the education system at all levels. By adoption of the Framework Law on Primary and Secondary Education in Bosnia and Herzegovina, the general principles and aims of education deriving from generally accepted, universal values of democratic society and its own value systems based on specifics of national, historic and cultural and religious tradition of peoples and national minorities living in Bosnia and Herzegovina are clearly stipulated.
Constitutional Court dismissed the applicant’s request as ill-founded as it concluded that the Law on Primary Education and Upbringing of the Republika Srpska the Law on Secondary Education and Upbringing of Republika Srpska, the Law on Primary Education and Upbringing and Law on Secondary Education and Upbringing of all 10 Cantons in the Federation of Bosnia and Herzegovina in the context of the request in question are not inconsistent with the provisions of Articles II(1), II(4) and III(b) of the Constitution of Bosnia and Herzegovina, Article 14 of the European Convention in connection with the provisions of Article 2 of Protocol no. 1 to the European Convention and Article 1 of Protocol no. 12 to the European Convention.
Constitutional Court of BiH, inter alia, examined the request of thirty six (36) representatives of the National Assembly of Republika Srpska for review of the constitutionality of certain provisions of the constitution of one number, more closely specified in the request, of cantons and statutes of municipalities in the Federation of BiH, in regards to designs of the coat of arms and/or flags of the administrative units (municipalities and/or cantons) on the territory of the Federation of Bosnia and Herzegovina which in the opinion of the applicant, contain elements that are inconsistent with Articles II(1), II(4) and III(3)(b) of the Constitution of Bosnia and Herzegovina, since as elements in appearance of coat of arms and flags determine also the elements of religious and national character (symbols of crescent, fleur-de-lys, chessboard, outlines of religious objects etc.) which symbolize only one constituent people, In that manner, in his opinion, representatives of other peoples are placed into an unequal position.
The Constitutional Court rejected this request as it is not competent to take a decision, as inadmissible, inter alia, as it considers that the compliance with the principle of the constituent peoples and principle of non-discrimination with regards to the manner of stipulation of symbols of the administrative and local units, as a matter which is under exclusive of jurisdiction of the Entities, primarily raises the issue of conformity of the acts containing the provisions about this matter with the Entity constitution and final authority regarding this matter is the Entity constitutional court.
Constitutional Court of BiH also decided on a number of appeals on alleged violations of the appellants’ rights. In cases in which it found a violation of the rights, the Court granted the appeals or rather dismissed them as ill-founded in cases in which it found no such violation.
All decisions adopted at the session shall be published on the webpage of the Constitutional Court of Bosnia and Herzegovina within a time limit of one month, following the delivery to the appellants.
