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Strasbourg, 11 October 2004
Opinion no. 276/2004
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CDL-AD(2004)032
Or. Fr./Engl.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
opinion
ON THE NEW DRAFT
AMENDMENTS
TO THE
CONSTITUTION OF
THE FEDERATION
OF BOSNIA AND
HERZEGOVINA
CONCERNING
LOCAL GOVERNMENT
Adopted by the Commission
at its 60th Plenary session
(Venice, 8-9 October 2004)
on the basis of comments by
Mr J.-C. SCHOLSEM (Member, Belgium)
1. By letter of 23 August 2004, the Presidents of the Constitutional Commission
and the Commission for Local Self-Government of the House of Representatives of
the Parliament of the Federation of Bosnia and Herzegovina submitted various constitutional amendments
to the FBiH Constitution in the area of local self governance to the Venice
Commission for opinion. These constitutional amendments were submitted together
with amendments to the draft Law on local self governance.
2. The draft constitutional and legislative
texts form a whole. The constitutional amendments relate solely to various
aspects of local self-government. They provide the basis for the draft law
which is being presented simultaneously.
Only the constitutional amendments will be commented on directly in
this opinion, although their scope is often clarified by the draft law which
implements them.
3. Amendments 1 to 5 very largely reproduce the
substance of the amendments already commented upon by the Venice Commission,
which at the time were numbered CIII (current amendment 1), CIV (current
amendment 2), CV (current amendment 3), CVI (current
amendment 4) and CVII (current amendment 5).
Subject to the points made below, as far as these amendments are
concerned, there are only minor stylistic differences (which may be the result
of translation) between the current draft texts and those previously submitted
to the Venice Commission for opinion. Reference may therefore be made here to
the opinion adopted by the Commission at its 58th plenary session
(12-13 March 2004) and the appendix thereto (CDL-AD (2004) 014).
4. The Venice Commission has already underlined
the crucial importance of these amendments regarding the general distribution
and balance of powers between the Federation, cantons and municipalities (see
points 3 to 5 of the opinion,CDL-AD(2004)014
).
In particular, the Commission indicated its desire to
avoid any confusion or overlapping of the powers of the cantons and those of
the municipalities.
From this point of view, the text of amendment 3 provides welcome
clarification in stating that the powers of municipalities may only be limited
by a federal law (and not simply, as in the previous version, by law, which was
ambiguous).
Similarly, amendment 4 c) (formerly amendment CVI c)) on
municipalities’ financial resources takes account of the Venice Commission’s
previous comments (opinionCDL-AD(2004)014, point 6) in
providing that a federal law shall regulate the system for financing local
self-government and that this law must respect the principle of solidarity.
5. Amendment 6 substantially alters
Article VI-A-(I) on city authorities. The city authorities’ areas of
responsibility, which were previously limited to five in number
(Art. VI-A-(1)), are extended to a total of 15 (Art. VI-A-(2)) a) to o))
in the draft). This very broad and, indeed, rather complex list of
responsibilities needs to be set against the list of responsibilities assigned
to municipalities (Art. VI – 1 in the draft, see amendment 3). Comparison
of the two lists shows that there is potential for a significant degree of
overlapping, in particular with regard to spatial planning, education, culture
and tourism, etc. In our view, the dividing line between the responsibilities
of the municipalities and of the cities needs to be clarified so as to avoid
frequent conflict between the two entities.
Rather surprisingly, amendment 6 appears
to provide for the possibility of establishing a city on the territory of a
single municipality (for the area of one or more municipalities that
make a single urban…). This is perhaps a material error. We have no explanatory
memorandum or similar document. Hitherto, cities seem to have been regarded as
higher bodies (for the areas of two or more municipalities…). If the
territories of a municipality and a city coincide, one might ask whether their
organs should not just be merged.
A
P P E N D I X
NEW AMENDMENTS (AS OF 30/7/04)
TO THE CONSTITUTION OF
THE FEDERATION
OF BOSNIA AND HERZEGOVINA
CONCERNING LOCAL
SELF-GOVERNMENT
Pursuant to Article VIII.1. of the Constitution of the Federation of
Bosnia and Herzegovina, and having been authorized to propose amendments to the
Constitution of the Federation of Bosnia and Herzegovina, hereby we propose to
the Parliament of the Federation BiH the following amendments to the
Constitution of the Federation BiH, to be adopted in accordance with the
prescribed procedure:
AMENDMENT 1
After item “h)” in Article III. 1., a new item “i)” shall be added and shall read:
“i) establishment of principles of a local
self-governance system”
AMENDMENT 2
In Article III.4., paragraph 1., the first sentence shall be amended to
read as follows:
“Cantons
shall be specifically responsible for:”
At the end of this Article, a new sentence
shall be added and shall read:
“Cantons
shall also have other competencies not expressly granted to the Federation
authorities, or which are not expressly granted to municipal or city
authorities by this Constitution and/or Federation law.”
AMENDMENT 3
After the title of the Chapter VI. Municipal Authorities, a new Article
1 shall be added and shall read:
Article 1
Within a law, municipalities
shall be responsible to regulate and perform public operations of interest for
a local population. They shall be specifically responsible for:
1.
Spatial
planning, land development and construction
2.
Management
and disposal of local land
3.
Organization
of utility and other service activities
4.
Establishment
and work of institutions for pre-school and primary education
5.
Management
of public goods and goods in a general use
6.
Management
of tourist resources
7.
Land
survey and real estate cadastre
8.
Creating
conditions in order to meet the needs of the population in the field of
culture, physical culture and sport
9.
Protection
of environment
Municipalities may transfer
their competencies to a city or canton. Competencies granted to municipalities
shall not be denied or limited by the Federation or cantonal authorities,
except in the cases prescribed by the Federation law.
AMENDMENT 4
Current Article 1 shall become Article 2, and shall be amended to read
as follows:
In performing
their responsibilities, municipalities shall:
a)
undertake
necessary measures in order to ensure the protection of human rights and
fundamental freedoms;
b)
be
entitled to associate with other local authorities in order to perform
operations of common interest, as well as to belong to domestic and
international associations of local authorities, and shall be entitled to
cooperate with appropriate local authorities of other countries;
c)
be
entitled to sources of funding that will be appropriate for their competencies,
and a part of these funds shall come from local taxes and fees, for which
municipalities shall be entitled to determine rates. The Federation law shall
regulate the system for financing the local self-governance. If higher levels
of authorities transfer competencies, they shall be obliged to also transfer
sources of financing for the performance of those operations. In regulating
these issues, a principle of solidarity shall be respected;
d)
be
entitled to be consulted in the procedure of passing regulations, which
regulate issues under a competence of a municipality and/or its financing, as
well as be entitled to adjust their implementation to local conditions;
e)
constituent
peoples and those belonging to Others shall be proportionally represented in
the municipal authorities. Such representation shall reflect a census from 1991
until the full implementation of Annex 7, in accordance with Article IX.12 of
this Constitution.
Articles 2,3,4,5,6, and 7 shall become articles 3,4,5,6,7 and 8.
AMENDMENT 5
In Article VI.2, after paragraph (1), new paragraphs (2) and (3) shall
be added and shall read as follows:
“(2) A municipality shall be a unit of local
government and self-governance.
(3)
The
Federation Law on Local Self-Governance shall be adopted in accordance with the
European Charter on Local Self-governance.
Current paragraph (2)
shall be deleted.
AMENDMENT 6
In Article VI.A.1,
paragraph (1) shall be amended to read:
(1) “For the area of one or more municipalities
that make a single urban, cultural, economic and administrative territorial
entity linked with daily needs of citizens, a city shall be formed as a unit of
local government and self-governance in accordance with the Federation law.
(2) Responsibilities of a city shall comprise:
a)
issuance
of regulations on the use of local land within the framework of zoning as
stipulated by the cantonal law,
b) issuance of regulations on the improvement of
local business operations and charity activities,
c)
issuance
of regulations on local electricity generating plants and ensuring their
accessibility,
d) conducting social policy and establishment of
social welfare services and in particular services dealing with care of
elderly, sickly and poor persons,
e)
construction
and maintenance of joint infrastructure,
f)
managing
the city public property and property used for fulfilling public needs
(streets, squares, parks, playgrounds etc.)
g)
hygiene
and local public health,
h)
creation
of material and other conditions for the development of culture, educational,
health, social, sports and other needs of local population,
i)
establishment
of municipal tourism policy and taking care of tourist resources of the city,
j)
founding public institutions and other legal
persons (secondary and primary education schools, homes for social welfare and
care as well as cultural, utility and other institutions of interest to and for
the needs of population,
k) finances and tax policy, in line with the
Federation and cantonal laws,
l)
establishment
of urbanism policy and housing policy of importance for the city and its development,
m) physical and urban development planning –
issuance of urban development and regulation plans;
n)
public
transportation,
o) other competencies entrusted to the city by
the canton i.e. transferred by the municipalities.
After paragraph (2), a new paragraph (3) shall be added and shall read:
(3) In performing their responsibilities, cities
shall:
a)
undertake
necessary measures in order to ensure the protection of human rights and
fundamental freedoms;
b) be
entitled to associate with other local authorities in order to perform
operations of common interest, as well as to be a member of domestic and
international associations of local authorities, and shall be entitled to
cooperate with appropriate local authorities of other countries
c)
be
entitled to sources of funding that will be appropriate for their competencies,
and a part of these funds shall come from local taxes and fees, for which
cities shall be entitled to determine rates. If higher levels of authorities
transfer competencies, they shall be obliged to also transfer sources of
financing for the performance of such operations.
d)
Be
entitled to be consulted in the procedure of passing regulations, which
regulate issues under a competence of cities and/or its financing, as well as
be entitled to adjust their implementation to local conditions.
e)
Constituent
peoples and those belonging to others shall be proportionally represented in
the municipal authorities. Such representation shall reflect a census from 1991
until the full implementation of Annex 7, in accordance with Article IX.12 of
this Constitution.
In the same Article,
paragraph (3) shall become paragraph (4) and shall be amended to read as
follows:
“(4) A
City shall have a City Council and a Mayor.
Number of councillors, election
procedure, as well as duration of mandate, shall be regulated by the Statute.
Unless otherwise prescribed by
the Constitution, City councillors and a Mayor shall be elected by voter in
direct and secret elections in the whole area of the city in the manner
prescribed by the law.
In
paragraph (4), which shall become paragraph (5), provision under b. shall be
deleted.
Paragraphs
(5) and (6) shall become paragraphs (6) and (7).
AMENDMENT CX
Article VI.B.1. shall change and read as follows:
“(1) In the Sarajevo Canton the
City of Sarajevo shall be established as a unit of local
government and self-governance, in accordance with the Federal Law.
The area of the City of Sarajevo shall compose of the territory of Stari Grad, Centar, Novo Sarajevo and Novi Grad.
(3) The composition and the
manner of decision making of the bodies of the City of Sarajevo shall reflect the multiethnic composition
and multicultural particularity of Sarajevo as the Capital of the Federation of Bosnia
and Herzegovina. Constituent people and members of Others
shall be proportionally represented in municipal bodies of authority. Such
representation shall reflect the 1991 Census until the full implementation of
the Annex 7. in accordance with Article IX.12. of this Constitution.
(4) The competencies, organizational
structure, composition and the manner of decision making of the bodies of the
City of Sarajevo shall be defined by the Federation Law, in
accordance with this Consitution and Protocol on organization of Sarajevo.
(5) This amendment shall
replace Amendment XXVI to the Constitution of the Federation BiH in its
entirety.”
