CDL-INF(1999)006e
Strasbourg,
30 March 1999
OPINION
ON THE SCOPE OF THE RESPONSIBILITIES OF BOSNIA AND HERZEGOVINA IN THE FIELD OF
IMMIGRATION AND ASYLUM WITH PARTICULAR REGARD TO POSSIBLE INVOLVEMENT OF THE
ENTITIES
I. Introduction
1.
At
the 36th Plenary Meeting of the Commission on 16-17 October 1998 the
representative of the Office of the High Representative (OHR) asked the
Commission to provide an opinion on the legal aspects of the delegation of
powers from Bosnia and Herzegovina (BH) to the Entities. In a memorandum dated
3 December 1998 the OHR further explained this request. In fact, the Commission
is not invited to adopt a general opinion dealing with all possible cases of
delegation of powers, but to provide an opinion on the compatibility of the
proposed Draft Bosnia and Herzegovina Law
on Immigration and Asylum with the constitutional distribution of
responsibilities between BH and the Entities, it being understood that similar
principles may apply in other fields.
2.
Within
the framework of the Sub-Commision on the Federal and Regional State a Working
Group with Mr Scholsem in the Chair and Messrs Bartole, Matscher and Tuori as
members was entrusted with preparing the opinion. The Working Group met in
Paris on 29 January 1998 together with representatives of the OHR. Following
the approval of the opinion prepared by the Working Group by the Sub-Commission
on 20 March 1999, the present Opinion was adopted at the 38th
Plenary Meeting of the Commission on 22 to 23 March 1999.
3.
The
Commission underlines that the authoritative interpretation of the Constitution
of BH is the prerogative of the Constitutional Court of BH as the sole body
able to give a binding interpretation of the provisions of the Constitution.
Nevertheless, in view of the request by the OHR and taking into account the
need to ensure from the outset that the approach chosen for the drafting of
legislation in BH is compatible with the Constitution, it is of the opinion
that a non-binding opinion of outside legal experts may be of value for the BH
authorities.
4.
II.
General
considerations
5.
Under
the terms of Article III.1 of the Constitution of Bosnia and Herzegovina:
“The following matters
are the responsibility of the institutions of Bosnia and Herzegovina: …
(f) Immigration, refugee and asylum
policy and regulation.”
6.
The
Draft Law on Immigration and Asylum regulates
in detail questions of immigration and asylum, including in particular the
administrative procedures to be followed. It enables the Ministry of Civil
Affairs and Communication of BH to specify further rules by way of regulations.
No regulatory power is granted to the Entities. However, in many cases the
competent authority of an Entity takes the first administrative decision, for
example on issuing a residence permit. In these cases an administrative appeal
may then be lodged with the Ministry of Civil Affairs and Communication of BH.
The question of further appeals to the courts against the final administrative
decision is not addressed in the text of the draft law.
7.
The
OHR memorandum raises in particular the question whether, and if so under which
conditions, it is possible for BH to delegate responsibilities or functions to
the Entities in areas within the exclusive constitutional competence of BH.
Applied to the present draft law, is it lawful that in many cases an Entity
authority takes the first administrative decision?
8.
III.
Legislative
and Regulatory Powers
9.
The
Commission first of all notes that the draft law is a BH law and that all regulatory
powers are reserved to BH institutions. In addition, the draft law clearly
tries to give to the administrative authorities a maximum of guidance for the
treatment of individual cases. The Commission sees no reason to doubt that this
approach is fully in line with the BH Constitution, in particular its Article
III.1.(f), which clearly reserves all normative powers in this field to
the BH institutions.
10.
IV.
Administrative
functions
11.
The
Constitution of BH is a very short and concise document and it provides
extremely few indications with respect to State administration. Some provisions
clearly provide that BH is responsible for the day-to-day running of certain
institutions, e.g. Article III.1.(h) which makes BH responsible for the “operation” of certain facilities.
Article III.1.(f) is less clear by explicitly mentioning only a responsibility
for “policy and regulation”. However, in the Commission’s view, this cannot be
interpreted as limiting the responsibilities of BH to the normative aspects.
The Commission already rejected a similar approach in its “Opinion on the compatibility of the Constitutions of the Federation of
Bosnia and Herzegovina and the Republika Srpska with the Constitution of Bosnia
and Herzegovina” with respect to customs policy.
12.
The
lack of provisions on administration in the Constitution can only be explained
by the fact that the Constitution is based on a general parallelism between
legislative and executive functions. Unless there is a contrary indication in a
specific provision of the text of the Constitution, the basic assumption is
that BH is responsible for both legislation and execution. This follows from
the general wording of Article III.1 which does not distinguish legislative and
administrative powers but assigns responsibility for certain subject matters to
the institutions of BH. This interpretation is confirmed by Article V.4.(a)
which gives the Council of Ministers the task of carrying out the decisions of
BH, inter alia in the fields referred to in Article III.1.
13.
An
administrative responsibility of BH seems also indispensable in the field of
immigration and asylum (as well as in other fields) to ensure the necessary
uniformity of administrative practice. Article I.4 of the Constitution provides
for the free movement of persons within BH. Any decision by one Entity on the
admission of a person to its territory therefore necessarily has repercussions
on the other Entity and a uniform practice throughout BH has to be ensured.
14.
As
a point of departure, the Commission therefore notes that BH is responsible
also for the carrying out of immigration and asylum policy.
15.
This
however does not mean that it may not be justified in some cases to entrust the
Entities with certain administrative functions. It only means that the decision
on whether to do so is reserved to BH. BH may, in the exercise of its
legislative power, provide that certain functions should be carried out by the
Entities. This would be a step in the direction of an “executive federalism”
characteristic of European federal states such as Austria, Germany and
Switzerland. Practical considerations make such an approach advisable. The
Commission has noted before that BH is an unusually weak federation with only
limited responsibilities. The administrative capacity of BH is therefore also
limited. If BH is unable to carry out certain functions due to the lack of a
sufficiently developed State administration or if it is much more feasible to
take certain decisions on the spot, BH may exercise its responsibility partly by
asking the Entities to carry out certain administrative functions. This partial
devolution of powers may however in no case jeopardise the requirement of a
uniform application of the law throughout BH. There is also no reason why such
devolution could not be revoked in the future. Legally nothing prevents BH from
amending the law and entrusting BH administrative bodies with the respective
decisions if the work of the Entity bodies does not give satisfaction.
13.
Applied
to the Law on Immigration and Asylum, these considerations confirm the legality
of the approach chosen by the draft. As far as is practically possible, the
draft ensures a uniform application of the law. It not only provides fairly
detailed guidance to the authorities already in its text, to be supplemented by
additional regulations to be adopted by a BH ministry, but also ensures full
information of the authorities of BH by the requirement to send copies of
decisions by Entity authorities to the competent BH Ministry and in particular
by providing for an administrative appeal against all decisions taken by
authorities of the Entities to the Ministry of Civil Affairs and Communication
of BH. The Ministry will have full power to review these decisions, will not be
limited to a control of legality but may also control opportunity.
14.
The Commission therefore fully supports the
approach taken in the draft law with respect to administrative functions. A
problem could only arise if the Entities object to being given additional tasks
from BH without the necessary funding to carry them out. While such objections
would appear plausible in other federal States, in BH, where the federal state
is dependent financially upon the Entities and not the other way round, they
seem unlikely to be made. Nevertheless this aspect points to the need to
install consultation mechanisms between BH and the Entities on such issues.
V.
Judicial
Protection
15.
The
initial version of the draft law did not contain any rules on judicial
protection. This omission is understandable, taking into account that the BH
Constitution does not expressly provide for any BH court apart from the
Constitutional Court. It was therefore difficult for the drafters to provide an
appropriate solution. To provide for an appeal to the Entity courts would have
been contrary to their efforts to ensure uniform application of the law
throughout BH.
16.
The
Commission in this respect refers to its Opinion
on the Need for a Judicial Institution at the Level of the State of Bosnia and
Herzegovina. In this opinion it found that BH is empowered, and even
obliged, to set up a State level court with respect to administrative disputes.
17.
The
present draft law provides a perfect illustration of a case in which such a BH court
is indispensable. The field of immigration and asylum is a particularly
sensitive one with respect to human rights and a constitution as human rights
friendly as the BH Constitution clearly requires the possibility of judicial
protection against adverse administrative decisions in this field. All final
decisions subject to appeal will be taken by a Ministry of BH or even the
Council of Ministers of BH and an Entity court has no jurisdiction to annul
decisions by a BH Ministry. The possibility for appeals to a BH court still to
be established therefore has to be provided and the draft law should be
supplemented in this respect or this should be set out in an additional law.
18.
VI.
Conclusion
19.
The Commission fully supports the approach of
the draft Law on Immigration and Asylum
with respect to the distribution of responsibilities between BH and the
Entities. The draft strikes a constitutionally sound balance between
constitutional requirements, in particular for an equal application of the law
throughout Bosnia in this sensitive area, and practical problems due to the
weakness of the BH administration. The draft need only be supplemented by
additional provisions providing individuals with the possibility to appeal
administrative decisions taken by the BH authorities to a BH (administrative)
court.
