On 7 March 2025, the Constitutional Court of Bosnia and Herzegovina held an extraordinary electronic plenary session, at which it decided the requests for interim measures in the following cases: U-6/25, the applicant Kemal Ademović, Deputy Speaker of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, U-7/25, the applicant Denis Bećirović, a member of the Presidency of BiH, U-8/25, the applicant Denis Zvizdić, the Speaker of the House of Representatives of the Parliamentary Assembly of BiH.
In all these cases the Constitutional Court adopted decisions granting the requests of the applicants for interim measures.
In the case no. U-6/25, the Constitutional Court has temporarily suspended the effect of the Law on Special Register and Public Aspect of Work of Non-Profit Organisations (Official Gazette of Republika Srspka, 19/25). It has been determined that the decision shall enter into force forthwith and shall produce legal effect from the day of the entry into force of the cited law pending a final decision by the Constitutional Court on the request filed.
The Constitutional Court indicated that the content of the mentioned law, while it was in the form of a draft, was analysed by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the European Commission for Democracy through Law (the Venice Commission). The Constitutional Court also referred to the 2024 OSCE Press Release, which read that the analyses produced a conclusion that the Bill was contrary “[…] to the Constitution of the Republika Srpska and the Constitution of Bosnia and Herzegovina, as well as to numerous international and domestic commitments in the sphere of the respect for human rights. Therefore, without prejudging the outcome of a decision on the merits, the Constitutional Court has established that there is a reasonable likelihood that the entry into force of this law will immediately generate serious repercussions for such associations and foundations. The Constitutional Court indicated that the obligation to register in a special register, to mark materials, to report foreign donations and potential sanctions may have an instantaneous effect on the work of organisations, thus bringing upon them legal uncertainty and making their operation more difficult. Such measures may result in the decrease of activities of the civil society organisations, their shutdown or withdrawal of donors, which jeopardises the already initiated projects, including the right to freedom of association and the right to freedom of expression. Accordingly, the Constitutional Court deems that there is a realistic risk from irreparable damage, and that, from the aspect of undeniable interest in legal certainty, human rights and the protection of the principle of constitutionality, granting an interim measure in the circumstances of the present case has great many justifications.
In the case no. U-7/25, the Constitutional Court has temporarily suspended the effect of the Law on Non-Application of Laws and Ban on Operation of Extra-Constitutional Institutions of BiH (Official Gazette of the Republika Srpska, 19/25), Law Amending the Criminal Code of the Republika Srpska (Official Gazette of the Republika Srpska, 19/25), Decision on Measures and Tasks Arising from Unconstitutional Decisions and Actions of Extra-Constitutional Institutions of BiH (Official Gazette of the Republika Srpska,19/25) and the Conclusions of the Caucuses of the National Assembly Deputies of the SNSD, NPS-DNS, DEMOS-SPS, SP and US with regard to the Information on Subversion of the Constitution of BiH, Measures and Tasks with a view to Protecting the Constitution of BiH, which were adopted at the seventeenth special session of the National Assembly of the Republika Srpska held on 26 February 2025.
Pending a final decision by the Constitutional Court, the Constitutional Court rendered this decision
- temporarily suspending the effect of all the acts adopted on the basis of the temporarily suspended acts,
- temporarily prohibiting all legislative, executive and judicial institutions in the Republika Srpska, as well as all official persons or persons in charge in those institutions of the
Republika Srpska or local self-government units or any local self-government unit authority, as well as official persons or persons in charge from the Republika Srpska who perform duties in the institutions of Bosnia and Herzegovina, to undertake any actions on the basis of the temporarily suspended acts.
This decision shall enter into effect forthwith and shall generate legal effect from the day of entry into force of the cited laws.
The Constitutional Court, inter alia, indicated that the implementation of the cited acts of law would, first and foremost, call into question the stability of the institutions of Bosnia and Herzegovina in terms of potential abandonment of jobs by the employees from the Republika Srpska due to threats of sanctions. Next, it would lead, at the same time, to substantial problems in subsequent exercise of employment status of employees in those institutions if all the mentioned acts were declared unconstitutional.
Next, the enforcement of the Law on Non-Application of Laws and Ban on Operation of Extra-Constitutional Institutions of BiH, as follows: the Court of BiH, the Prosecutor’s Office of BiH, the BiH HJPC and the State Investigation and Protection Agency in the territory of the Republika Srpska would call into question the principle of proper administration of justice. That potentially creates the legal framework, which may aid suspects and persons accused of numerous criminal offences, from all over Bosnia and Herzegovina, which fall under the jurisdiction of the Court of BiH and the Prosecutor’s Office of BiH, to avoid criminal prosecution by simply moving to the Republika Srpska.
At the same time, this law generates a probable risk that authorized official persons that implement decisions of the state institutions will be prevented from exercising their duties which can lead to a conflict between these bodies and a potential escalation that would pose a threat to peace in Bosnia and Herzegovina.
The Constitutional Court concludes that there are sufficient reasons to indicate that the implementation of the contested legal acts before the Constitutional Court rules on the submitted request for review of constitutionality would have serious and irremovable harmful consequences. These consequences are reflected in the existence of a danger of undermining the constitutional order and sovereignty of Bosnia and Herzegovina. In this regard, the Constitutional Court points out that protection of sovereignty, constitutional order and stability of Bosnia and Herzegovina, including its entities, is in the interest of all parties to the proceedings.
In case no. U-8/25, the Constitutional Court has temporarily suspended the Law on High Judicial and Prosecutorial Council of Republika Srpska (Official Gazette of Republika Srpska, 19/25). Also, all acts adopted based on the Law on the HJPC have been temporarily suspended, and all legislative, executive and judicial institutions in the Republika Srpska, as we all as all official or responsible persons in those institutions of the Republika Srpska or units of local self-government or any other body of local self-government, as well as official or responsible persons from Republika Srpska holding office in the institutions of Bosnia and Herzegovina, have been temporarily banned from undertaking any other actions based on the referenced law. This decision shall come into force immediately and shall produce legal effects from the day of the referenced law entering into force.
The Constitutional Court points out, inter alia, that the contested law regulates issues that have already been addressed by the provisions of the Law on the HJPC BiH and that it establishes the jurisdiction of the HJPC RS over the same matters, which are already under competence of the HJPC BiH. In this regard, the Constitutional Court recalls its position from the Decision No. U-11/08, in which it stated “[...] that the formal transfer of jurisdiction from the entity level to the state level was carried out by the Agreement, thereby transferring the jurisdiction for the establishment of the High Judicial and Prosecutorial Council to the state level. The Parliamentary Assembly adopted the contested law in an area that has been transferred to the state level, thereby acting within its powers under Article IV(4)(a) of the Constitution of BiH”. The Constitutional Court points out that it reiterated this position in its Decision No. U-2/22. The Court observes that regulations concerning the area of judicial governance represent one of the most important areas of regulation in any country, as they ensure the independence and impartiality of the judicial system, play a crucial role in upholding the rule of law, protecting human rights and freedoms, and preserving citizens' trust in justice institutions. In this regard, a stable judicial framework is based on the respect for democratic principles and legal certainty, and its undermining could have far-reaching negative consequences on other areas of social life.
The Constitutional Court considers that the adoption of the contested law poses a serious threat to the already established judicial system. At the same time, the Constitutional Court notes that the fact that the contested law prescribes a 90-day deadline for the commencement of the operations of the HJPC RS, as well as deadlines for the adoption of by-laws, indicates the urgency in adopting an interim measure. Specifically, in the opinion of the Constitutional Court, the implementation of such provisions could lead to the creation of parallel judicial institutions and a situation where judicial office holders could face instability in their position, while parties to proceedings could be confronted with uncertainty regarding legality in the actions of ordinary courts. The Constitutional Court considers that all of the foregoing reasons indicate that there is urgency to adopt interim measures to prevent further detrimental consequences and preserve legal certainty, and to protect the uniformity of the judicial system until the adoption of a final decision on the merits of the request.
