Just seven days ago, the Constitutional Court expressed its concern over improper statements and new pressure on the Constitutional Court of Bosnia and Herzegovina (BiH). It called upon the public, politicians, analysts and everyone else who contribute to these attacks on the Constitutional Court by making improper statements to refrain themselves and, at least in that way, give their contribution to the Constitutional Court's efforts to preserve the efficiency and integrity of this institution in these difficult circumstances in which it is forced to operate.
Nonetheless, as early as today individuals stated that there is no courage to set a deadline for the departure of “foreigners” from the Constitutional Court. In the Constitutional Court’s view, the demand for setting a deadline for the departure of the international judges from the Constitutional Court is an attack on the Constitutional Court aimed again at undermining its work because an attack on a member of the Constitutional Court is an attack on the Constitutional Court as a whole.
According to the Constitution of BiH, international judges are equal with judges elected by the Entity legislatures. The ratio is 6:3 in favour of the national judges so that the national judges can themselves adopt all the decisions (the majority is five votes).
Specifically, Article VI(1)(a) of the Constitution of BiH stipulates that the Constitutional Court of Bosnia and Herzegovina shall have nine members. Four members shall be selected by the House of Representatives of the Federation of BiH, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency. Article VI(1)(b) of the Constitution of BiH explicitly stipulates that the judges selected by the President of the European Court of Human Rights shall not be citizens of Bosnia and Herzegovina or of any neighbouring state. Article VI(1)(d) of the Constitution of BiH stipulates that for appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly may provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights. In view of the explicit constitutional provisions, the statements made in public that according to the Constitution of BiH, following the end of the initial term, 21 years ago, the date should have been set for departure of the international judges from the Constitutional Court, appears unfounded.
However, the truth is that the Constitution of BiH does not contain a single provision requiring exclusion of the international judges from the Constitutional Court, nor is the departure of the international judges one of the conditions for the start of BiH's negotiations for accession to the EU.
Therefore, the Constitutional Court once again calls upon those who wish for or request a deadline for the departure of the international judges from the Constitutional Court to use their ratio iuris and ask themselves why international judge have been included in the Constitution of BiH in the first place and why that task cannot be delegated to the citizens of the neighbouring states. Once that thinking process is done, perhaps it will become clear to them as to why a deadline for the “departure” of the international judges from the Constitutional Court cannot be set in advance. Rather, it can only occur when their presence in the Constitutional Court becomes no longer necessary or when the national judges with their five votes are able to decide themselves on issues of abstract review of constitutionality.
