Today, on 19 January 2017, the Constitutional Court of Bosnia and Herzegovina held its 102nd plenary session, the first plenary session in 2017.
On its 102nd plenary session, the Constitutional Court of Bosnia and Herzegovina decided on a certain number of requests for the review of constitutionality of laws and appeals regarding the alleged violations of human rights and fundamental freedoms.
Before consideration of the Agenda of 102nd plenary session, a solemn declaration was given by Judge Giovanni Grasso (the Republic of Italy), appointed to the Constitutional Court of Bosnia and Herzegovina by the President of the European Court of Human Rights pursuant to his authority under Article VI(1)(a) of the Constitution of Bosnia and Herzegovina after the term of office of the Judge of the Constitutional Court of Bosnia and Herzegovina, Constance Grewe, has expired since she turned 70.
For the purpose of illustration only, from the today’s session we highlight the following:
The Constitutional Court of Bosnia and Herzegovina, inter alia, rejected as inadmissible the request of Mr. Mladen Bosić, the Chairman of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, for the review of constitutionality of the Decision on the Adoption of Unified Data Processing Programme for the Census of the Population, Households and Dwellings in Bosnia and Herzegovina in 2013 and the Data Processing Unified Programme for the Census of the Population, Households and Dwellings in Bosnia and Herzegovina in 2013 due to the lack of competence of the Constitutional Court of Bosnia and Herzegovina to take a decision.
Deciding on the case no. U 17/16, the Decision on Admissibility and Merits, the Constitutional Court of Bosnia and Herzegovina dismissed as ill-founded the request of 30 representatives of the National Assembly of the Republika Srpska (Radovan Višković, et al.) for the review of constitutionality of “all the laws and other general acts which have been adopted by the Parliament of the Federation of Bosnia and Herzegovina since its constitution which took place following the 2014 elections”.
Namely, on 29 September 2016, 30 representatives of the National Assembly of the Republika Srpska lodged a request with the Constitutional Court of Bosnia and Herzegovina for the review of compatibility of “all the laws and general acts which have been adopted by the Parliament of the Federation of Bosnia and Herzegovina since its constitution following the 2014 elections” with the Constitution of Bosnia and Herzegovina. Also, the applicants requested the Constitutional Court to adopt an interim measure to suspend the enforcement of the mentioned laws and other general acts and to forbid the work of the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina until the constituent status of Serbs is exercised in full capacity and all the aforementioned until the Constitutional Court takes a final decision on the request.
The applicants, inter alia, claim that all the laws and other general acts which have been adopted since the constitution of the Parliament of the F BiH following the 2014 elections are contrary to the Constitution of Bosnia and Herzegovina, (notably the paragraph of the Preamble that reads Bosniacs, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina), as following the 2014 elections, according to the applicants’ allegations, the House of Peoples of the Parliament of FBiH has not been constituted as stipulated by the Constitution of the Federation of Bosnia and Herzegovina. Namely, instead of 17 delegates from among Serb peoples as stipulated by the Constitution of the Federation of Bosnia and Herzegovina, the Serb People Caucus in the House of Peoples of the Parliament of the FBiH consists of only 13 Serb delegates. Currently, four delegate seats in the Serb People Caucus remain unfilled.
The applicants also allege that due to the unfilled seats, the Serb People Caucus without full composition of delegates in the House of Peoples of the Parliament of the FBiH cannot have recourse to the mechanism of protection of the vital national interest. Besides the above cited Preamble of the Constitution of Bosnia and Herzegovina, the applicants do not explicitly refer to any other provision of the Constitution of Bosnia and Herzegovina as being infringed.
Therefore, in the present case, the Constitutional Court considered whether the manner in which the challenged laws were adopted amounted to the violation of constitutional principle of the prohibition of discrimination, taking into account its case-law in Decision no. U 5/05. Furthermore, the Constitutional Court also took into account the paragraph of the Preamble of the Constitution of Bosnia and Herzegovina, which was invoked by the applicants.
The Constitutional Court concluded that the challenged laws have been adopted in compliance with Article II(1) in conjunction with Article II(2) and II(4) of the Constitution of Bosnia and Herzegovina and Article 5(1)(c) of International Convention on Elimination of All Forms of Racial Discrimination. The Constitutional Court, inter alia, held that there were no constitutional and legal obstacles, or the obstacles stipulated by the Rules of Procedure to adopt the challenged laws at the House of Peoples of the Parliament of the F BiH. Furthermore, the Serb People Caucus was not prevented from exercising the right to initiate the mechanism for the protection of vital national interest. Thus, the Constitutional Court concluded that the Serb People Caucus was neither prevented from equal enjoyment of political rights nor was the privileged position given to any of the constituent peoples or Others at the House of Peoples of the Parliament of the F BiH, i.e. there was no system of government which reserves all public offices only to members of certain groups.
The Constitutional Court noted that there were neither constitutional nor legal mechanisms in the Federation of BiH which would ensure filling of seats by the required number of delegates in the House of Peoples from among each constituent people or from Others, as required under the Constitution of the Federation of BiH, and that this could possibly result in the situation in which required number of delegates from among any of the constituent peoples or from Others was not elected. However, it pointed out that none of the constituent peoples were put into a privileged position, i.e. there was no system of government which reserves all public offices only to members of certain ethnic group and no one had been deprived of equality in the enjoyment of political rights. However, the Constitutional Court emphasized that yet, that did not exempt the relevant authorities from an obligation to find mechanisms which would ensure constituting the House of Peoples of the Parliament of the F BiH in its full composition.
All decisions on the requests for the review of constitutionality and appeals taken at the session are to be delivered to the appellants within one month time-limit and posted on the official website of the Constitutional Court of Bosnia and Herzegovina.
