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Strasbourg, 4 April 2000
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Restricted
CDL (2000) 22 rev.
Engl. only
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
OPINION
ON
SOME ASPECTS
OF
THE FUNCTIONING
OF
OMBUDSMAN INSTITUTIONS
IN
BOSNIA AND HERZEGOVINA
adopted
at the 42nd Plenary
Meeting
Venice,
31 March-1 April 2000
On
the basis of comments by :
Mrs Maria de Jesus SERRA LOPES
(Member,
Portugal)
By letter of 1st December 1999, Amb. Gret Haller, Human Rights
Ombudsperson for Bosnia and Herzegovina, requested the Commission’s opinion on
the interpretation of some provisions of the draft Law on the State Ombudsman
of Bosnia and Herzegovina, in particular as regards the relations between
Ombudsman institutions in that State. Mrs Maria de Jesus Serra Lopes,
Rapporteur, gave the following replies to the Ombudsperson’s request.
1.
If the applicant, residing in the Republika Srpska
claims to be a victim of a violation of human rights by the authorities of the
Federation of Bosnia and Herzegovina, which Ombudsman institution should s/he
approach ?
2.
If the applicant, residing in the Federation of Bosnia
and Herzegovina claims to be a victim of a violation of human rights by the
authorities of the Republika Srpska, which Ombudsman institution should s/he approach
?
The applicant’s "residence" does not
seem to be determinant for the distribution of competences among Ombudsman
institutions in Bosnia and Herzegovina.
The Constitution of the Federation of Bosnia and
Herzegovina provides, in its Chapter II.B, Article 5, that "The Ombudsman
may examine the activities of any institution in the Federation, Canton,
or Municipality, as well as any institution or person by whom human dignity,
rights or liberties may be negated". The Draft Law on the Federation
Ombudsman similarly states that the Ombudsman of the Federation of Bosnia and
Herzegovina shall examine "government activity of any institution in the
Federation".
The newly adopted Law on the Ombudsman of the
Republika Srpska contains a similar provision according to which the Ombudsman
of the Republika Srpska shall monitor Government activity "of any
institution of the Republika Srpska".
It follows from the above that the applicant’s
residence is not a criterion for the competence of the entities’ Ombudsman
institutions. The only criterion is the nature of the authority concerned: When
the authority whose act complained of is an authority of an entity its is the
Ombudsman of this entity that should be approached by the applicant,
irrespective of the applicant’s residence in this or in the other entity.
Of course, in some cases, access of the applicant
from one entity to the Ombudsman institution of the other entity might be
difficult and potential applicant may be discouraged. Co-operation between the
Ombudsman institutions of the entities will be necessary in some cases and the
State Ombudsman’s competence to "promote co-operation among Ombudsman
institutions" and to "facilitate co-ordination of action" (see
Article 13 of the draft law on the State Ombudsman) will be instrumental in
this respect. Moreover, the State Ombudsman’s competence under Article 5 para 2
of the Draft Law should be recalled (see answer to question n° 3, below)
3.
Would the State Ombudsman be competent to deal with the
proper conduct of the State or also of the entities’institutions?
The State Ombudsman has exclusive competence to
deal with cases and complaints concerning the State institutions. Moreover,
under the conditions set out in the draft Law the Ombudsman may be competent to
deal with cases concerning the conduct of entities institutions.
As stated in the draft Law on the State
Ombudsman, the latter shall have "exclusive competence to deal with cases
concerning any institutions, authorities or agencies of the State of Bosnia and
Herzegovina" and cases "concerning at the same time an institution,
authority, or agency of an entity and an institution, authority, or agency of
the State (Article 5, para 1, of the Draft Law). The word "exclusive"
indicates that no other Ombudsman institution shall have competence to deal
with these cases.
However, the State Ombudsman’s competences go
beyond the above and includes entity institutions in the following cases :.
In accordance with Article 5 para 1 in fine of
the above-mentioned draft Law, the State Ombudsman shall also have exclusive
competence to deal with cases which do not concern any State authority but
rather " at the same time institutions authorities or agencies of both
entities". The purpose of this provision is to avoid that entity Ombudsman
institutions and entity authorities refuse to deal with a case on the ground
that the situation complained of is due (or mainly due) to the conduct of the
authorities of the other entity. The intervention of the State Ombudsman will
be necessary in such cases.
Under Article 5 para. 2 of the draft Law, the
State Ombudsman has competence to deal with cases concerning the conduct
of an entity institution, whenever the outcome of the case is, in the
Ombudsman’s opinion, of particular importance for the effective protection of
Human Rights in Bosnia and Herzegovina as a whole. In this respect, the Working
Group on the Ombudsman institutions in Bosnia and Herzegovina stated in its
final Report, that the jurisdiction of the "State Ombudsman" will in
principle be confined to cases concerning the State of Bosnia and Herzegovina
and cases simultaneously involving both entities; questions concerning a single
entity will have to fall in the medium term, i.e. during the transitional period,
within the exclusive ambit of the Ombudsmen of the entities. In the interim
however, the Ombudsperson will have to have parallel competencies to those of
the Ombudsmen of the entities."
Furthermore, the explanatory report to the draft
Law (CDL-INF (99) 10) clearly indicates the following :
The State Ombudsman shall also continue to have
competence to deal with any cases in Bosnia and Herzegovina, even a case
concerning authorities of one entity, as is the situation now, under Annex 6 to
the Dayton Agreement. This is considered necessary for ensuring a coherent
Ombudsman praxis all over Bosnia and Herzegovina and for enabling the State
Ombudsman to give guidelines and transfer the institution’s know-how to the new
Ombudsman institutions of the entities, in particular the Ombudsman of the RS.
The draft organic law provides that the State Ombudsman shall use this
competence whenever "it finds that the outcome of this case is relevant
for effective enjoyment of individual rights and freedoms in Bosnia and
Herzegovina as a whole". Since clear entity cases can be dealt with by the
entities’ Ombudsman institutions, the State Ombudsman is expected to make a
careful use of this power, intervening in these clear entity cases only when
this appears absolutely necessary. Quite naturally, the transitional State
Ombudsman may make a frequent use of this power in order to ensure the coherent
Ombudsman praxis wished. However, it is to be expected that in the long run,
when the smooth functioning of all Ombudsman institutions in Bosnia and
Herzegovina will be achieved, such interventions will be very
exceptional."
4.
The Draft Law does not regulate the issue of locations
of the State Ombudsman Offices Should Article III para 3 of Annex 6 be followed
?
5.
Should equal accessibility of the Office of the State
Ombudsman be guaranteed to persons residing in both entities and how would it
be secured ?
6.
What should be done in order to respond to the special
legal status of the Brcko district? Opening an office in Brcko or directing
applications to Sarajevo and Banja Luka ?
The above questions concerning the location of the Ombudsman offices are
rightly not regulated in the draft Law as the Commission finds that they do not
need a strict legal regulation but rather a practical and realistic approach.
The Ombudsman should address these questions in the institution’s internal
rules and not in the organic Law. What is essential here is to ensure that
access of potential applicants to the State Ombudsman is secured and that
contacts between the State Ombudsman and the entities’ authorities de
facilitated. This is actually what Article III, para 3 of Annex 6 to the Dayton
Agreement sought to achieve by imposing the presence of Human Rights
Ombudsperson’s offices in both entities. This may be achieved by opening of
several separate offices or by other means as appropriate.
