CDL-AD(2005)004
Venice, 11
March 2005 Or. Engl.
EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
OPINION
ON THE CONSTITUTIONAL SITUATION
IN BOSNIA AND HERZEGOVINA
AND
THE POWERS
OF THE HIGH REPRESENTATIVE
Based on comments by
Mr J. HELGESEN (Member,
Norway)
Mr J. JOWELL (Member,
United Kingdom)
Mr G. MALINVERNI (Member,
Switzerland)
Mr J.-C. SCHOLSEM (Member,
Belgium)
Mr K. TUORI (Member,
Finland)
adopted by the Venice Commission
at its 62nd plenary session
(Venice, 11-12 March 2005)
I. INTRODUCTION
1.
On 23 June 2004 the Parliamentary Assembly of the Council of Europe adopted
Resolution 1384 on “Strengthening of democratic institutions in Bosnia and Herzegovina”. Paragraph 13 of the
Resolution asks the Venice Commission toexamine several constitutional issues in Bosnia
and Herzegovina. It is worded as follows:
“13. The scope of
the OHR is
such that, to all intents and purposes, it constitutes the supreme institution
vested with power in Bosnia and Herzegovina. In this connection, the
Assembly considers it irreconcilable with democratic principles that the OHR
should be able to take enforceable decisions without being accountable for them
or obliged to justify their validity and without there being a legal remedy.
The Assembly asks the VeniceCommission to determine how far these practices comply with Council of Europe
basic principles, in particular with the Convention for the Protection of Human
Rights and Fundamental Freedoms. Furthermore, the Assembly asks the VeniceCommission to make a comprehensive assessment of the conformity of the
Constitution of Bosnia and Herzegovina with the European Convention for the
Protection of Human Rights and Fundamental Freedoms and the European Charter of
Local Self-Government, as well as of the efficiency and rationality of the
present constitutional and legal arrangements in Bosnia and Herzegovina.”
2.
Five members of the Commission, Messrs Helgesen,
Jowell, Malinverni, Scholsem and Tuori were appointed as reporting members.
Three of them, Messrs Jowell, Scholsem and Tuori, participated, accompanied by
Mr Markert from the Secretariat, in a fact-finding visit to Sarajevoand Banja Luka on 24-27 October
2004. This delegation is particularly grateful for the efficient support it
received from the Council of Europe Office in Sarajevoduring the visit. Following this visit a draft opinion was prepared, discussed and finally adopted at the 62nd
plenary session in Venice.
3.
The issue of the powers of the High Representative is
best understood and analysed within the framework of the constitutional
situation in Bosnia and Herzegovina.The present opinion therefore firstly addresses the efficiency and rationality
of the constitutional arrangements in the country; then it examines the
compatibility of the Constitution with the European Convention on Human Rights
and lastly it examines the compatibility with European standards of the
exercise by the High Representative of his powers.
II. THE
HISTORICAL BACKGROUND
4.
To understand the present constitutional situation in Bosnia and Herzegovina (BiH), a federal state
composed of two Entities, the Federation of Bosnia and Herzegovina(FBiH) and the Republika Srpska (RS), it is indispensable to briefly outline
the historical developments which led to the present – unique – situation. The
tragic war which followed the declaration of independence is well known. The
main constitutional texts applicable in the country were adopted during this
war or at its end. The Constitution of the Republika Srpska was originally
adopted in 1992 as the constitution of a separatist entity claiming to be an
independent state. It was based on the concept of a unitary state.
5.
The Constitution of the second Entity, the Federation
of Bosnia and Herzegovina,adopted in June 1994 was part of the Washington Agreement and reflected an
American-brokered compromise between Bosniacs and Croats. This was reflected in
Art. I.1 of the Constitution which states that “Bosniacs and Croats, as
constituent peoples (along with Others) and citizens of the Republic of Bosnia
and Herzegovina … transform the internal structure of the territories with a
majority of Bosniac and Croat population … into a Federation”. Decisions on the constitutional status of the
territories with a majority of Serb population were left to future
negotiations. The Constitution established a highly decentralised federation of
ten Cantons, with five Cantons having a primarily Bosniac, three Cantons having
a primarily Croat and two Cantons having a mixed Bosniac/ Croat character. At
the Federal level, complicated arrangements were foreseen to ensure that the
numerically smaller Croat population could not be outvoted by the Bosniacs. In
addition to a directly elected first chamber an indirectly elected second
chamber, the House of Peoples, composed of an equal number of Croat and Bosniac
representatives, was established. In this House “decisions that concern the
vital interest of any of the constituent peoples” required the consent of the
majority of the delegates from both peoples. There were a number of complicated
constitutional arrangements ensuring that, also within the executive, both
constituent peoples enjoy equal influence.
6.
The Constitution of the State of Bosnia and Herzegovinawas agreed at Dayton as Annex IV of
the General Framework Agreement for Peace in Bosnia and Herzegovina, initialled at Dayton
on 21 November 1995 andsigned in Paris on 14 December 1995. Due to its beingpart of a peace treaty, the Constitution was drafted and adopted without
involving the citizens of BiH and without applying procedures which could have
provided democratic legitimacy. As was pointed out to the Commission delegation
during its visit to BiH, it constitutes the unique case of a constitution never
officially published in the official languages of the country concerned but
agreed and published in a foreign language, English. The Constitution confirmed
the legal continuity of the Republic of Bosnia and Herzegovina, which
had become independent from the former Yugoslavia,under the name of Bosnia and Herzegovina
with a modified legal structure. The two already existing units, the RS and the
FBiH, were confirmed as Entities of BiH. Bosniacs, Serbs and Croats were
described as “constituent peoples”. The Constitution granted only extremely
weak powers to the state of BiH, leaving most powers to the two Entities. At
the state level, power-sharing arrangements were introduced, making it
impossible to reach decisions against the will of the representatives of any
constituent people. A House of Peoples as a second chamber was established, a
vital interest veto for all three constituent peoples in both chambers was
introduced as well as a collective Presidency of three members with a Serb from
the RS and a Bosniac and Croat from the Federation.
7.
Both Entities were obliged by the Constitution to bring
their own Constitutions into conformity with the State Constitution within
three months. While this was not done in time or completely, main
contradictions with the State Constitution were removed. With respect to the RS
Constitution, this was done following an opinion provided by the VeniceCommission at the request of the High Representative.
Nevertheless the fact remained that both Entity Constitutions were conceptually
very different, the RS being conceived as a unitary Entity dominated by Serbs,
the FBiH being a decentralised Federation with power shared at the Federal
level between Bosniacs and Croats.
8.
Another consequence of Daytonwas the establishment of the office of a High Representative with the task of
facilitating the implementation of the peace agreement. His mandate was
originally defined in not very precise terms in Annex X of the Agreement.
During the initial phase the High Representative did not exercise legally
binding powers. This proved insufficient for him to move the peace process
forward. At the Bonn Peace Implementation Conference (PIC)on 10 December 1997 the
Peace Implementation Council therefore welcomed the intention of the High
Representative to henceforth issue binding decisions. Following this Conference
the High Representative started to impose legislation and to remove officials
from office who did not fulfil their duty to implement the peace agreement.
This is generally referred to as the use of the Bonnpowers by the High Representative.
9.
Finally, the establishment of the Brčko district
as a further territorial unit was a consequence of arbitral awards delivered
pursuant to a provision of the peace agreement. The
present Opinion will not go into the peculiar features of this rather small district.
Its existence should however be noted as a further complicating factor in the
territorial set-up.
10.
The next major step in the constitutional development
was due to the decision of 1 July 2000of the Constitutional Court of BiH in the “constituent peoples” case. The
Court examined some constitutional provisions of the RS which granted a
privileged position to Serbs within the RS. The Court ruled that such
provisions were incompatible with the Constitution of the State and that
members of all three constituent peoples had to have equal rights throughout
BiH. The international legal instruments incorporated into the BiH Constitution
did not allow the granting of privileges to already dominant groups but only
affirmative action in favour of minorities. The decision had wide-ranging
consequences especially for the FBiH since both Bosniacs and Croats enjoyed a
constitutionally enshrined privileged position there. The RS Constitution did
have fewer obvious contradictions with the decision since its text was based on
an approach giving equal rights to all citizens. Practice in the RS was however
quite different, and the Constitutional Courtfound a pervasive pattern of discrimination of non-Serbs within the RS.
11.
The implementation of the decision of the Constitutional Court was the subject of much discussion,
including opinions of the Venice Commission (CDL-INF(2001)006and CDL-AD(2002)024). In the end an agreement between major political parties within BiH was reached, and in April
2002 and October 2002 the High Representative imposed the amendments to the
Entity Constitutions which were part of this Agreement. The basic approach
chosen was based on the equality of constituent peoples throughout the
territory. Power-sharing provisions, including a vital interest veto, similar
to the provisions at State level were introduced in both Entities and the
Cantons, and rules allocating the most important positions equally among the
three constituent peoples were included in the respective Constitutions. As a
result of these historical developments, BiH now on the one hand continues to
be divided into different units – two Entities, one of which is subdivided into
10 Cantons – originally set up to ensure the control of the respective
territories by one (or in the case of the FBiH and the two mixed Cantons, two)
constituent people(s). On the other hand, the representatives of the three
constituent peoples now constitutionally have in these various units a strong
blocking position, even where they represent only a very limited number of
voters.
12.
The extremely limited responsibilities explicitly
granted by the BiH Constitution to the State were insufficient for ensuring the
functioning of a modern state. Using some general provisions within the BiH
Constitution and interpreting provisions extensively, it proved possible to
somewhat extend the powers of the State level. Opinions of the VeniceCommission contributed to this process.
Examples are the setting up of a court at BiH level and the transfer or
assumption of responsibilities in the fields of defence, intelligence, the
judiciary and indirect taxation. It should be acknowledged that these transfers
or assumptions were unlikely to have happened without the High Representative
having taken the lead.
III. RESULTS OF THE FACT-FINDING
MISSION OF THE VENICECOMMISSION DELEGATION
13.
During its visit to BiH the VeniceCommission delegation was struck by the degree of interest in constitutional
reform. It met with representatives of the major political parties, often at
the highest level, with the Constitutional Commissions of the various
parliaments, as well as with representatives of the Constitutional Court and civil society. There was equal interest
in discussing the powers of the High Representative.
14.
As regards constitutional reform, the delegation found
unanimity within the FBiH that the present constitutional arrangements in the
FBiH are neither efficient nor rational. Power is dispersed between too many
levels and usually exercised by a unit too small to fulfil its functions
effectively. There are too many bureaucracies and too many posts for
politicians: for example, within the FBiH, anEntity with about two and a half million inhabitants, there are 11 ministers of
justice in addition to the minister of justice at State level who also
exercises powers within the territory of the FBiH. Within the FBiH there was
unanimity to strengthen the State level and at the same time the municipal
level, notwithstanding the fact that municipal reform had been blocked in the
FBiH for years. There were various approaches as to what should remain in
between those two levels. The preferred solution on the whole seemed to be the
setting up of administrative regions based on economically integrated areas
while abolishing both Entities and Cantons. Such regions have already been
introduced for the purposes of indirect taxation and are envisaged for the
police. However, it was always emphasised that reform should not take place
within the FBiH only. Any meaningful reform had to include the abolition of
both Entities, including the RS. A streamlining of procedures at all levels was
considered desirable by most interlocutors, although some favoured maintaining the vital interest veto in its
present form.
15.
Within the RS the picture was quite different. Some
political forces there (SDS, PDP) consideredthe present constitutional provisions at the State level perfectly adequate,
while others (SNSD) were open to strengthening State powers to enable the
country to efficiently participate in European integration. However, there was
absolute unanimity that there could be no question of the RS being abolished.
Abandoning the RS would be regarded by all Serbs as equivalent to defeat in the
war and mean that all sacrifices had been in vain. By contrast, according to
Serb interlocutors, within the RS the vital interest veto was being abused and
should be reformed.
16.
As regards the compatibility of the BiH Constitution
with the ECHR many interlocutors, especially among Bosniacs, took it for
granted that the constitutional provisions on the election of the Presidency
and the House of Peoples are discriminatory provisions in violation of the
ECHR.
17.
With respect to the exercise of the Bonnpowers by the High Representative, there were widely diverging positions. Within
the FBiH, it was generally acknowledged that the past use of the High
Representative’s powers had been indispensable to move the country forward.
Most progress in the country was in fact due to decisions by the High
Representative. Consequently some interlocutors favoured maintaining the powers
of the High Representative fully until a reform of the constitutional system
had taken place or even expanding those powers. Other voices were more critical
and considered that the country no longer needed the use of such powers which
should be gradually phased out.
18.
Within the RS the attitude towards the Bonnpowers was generally critical, even strongly hostile. The President of the RS
handed over to the delegation a voluminous file alleging numerous gross violations of human rights
through the use of the Bonn powers.
19.
Lord Ashdown, the High Representative, seemed open to
gradual change. While in some instances the use of the Bonnpowers was still necessary, not least to force the RS to co-operate with the
International Criminal Tribunal for the former Yugoslavia (ICTY), in some areas
he had already stopped using his powers. BiH had to be able to participate in
European integration on its own and he could not replace lack of action by the
authorities in that respect. The position of Lord Ashdown is explained more
fully in his address to the Venice Commission,delivered at its 60th Plenary Session in October 2004.
20.
The visit by the delegation made many challenges facing
BiH quite clear. There is a powerful wish for the country to participate in
European integration with the final aim of becoming a member of the EU.
However, the conclusion of a Stabilisation and Association Agreement as the
first step in this direction will require
institutions at State level far more effective than those existing at present.
Moreover, the division existing within the country between the various ethnic
groups remains a major concern. While a lack of interethnic trust following a
bloody war is not surprising, the various ethnic groups have to live and work
together, and not just side-by-side. The continued existence for example of a
largely segregated education system therefore remains a major stumbling block
on the way towards a better future.
IV. EFFICIENCY
AND RATIONALITY OF THE PRESENTCONSTITUTIONAL ARRANGEMENTS
1. The
State level
a) Responsibilities
of the State level
21.
The list of responsibilities of the State appearing in
Art. III.1 of the State Constitution isextremely narrow:
“a. Foreign policy.
b.
Foreign trade
policy.
c.
Customs policy.
d.
Monetary policy
as provided in Article VII.
e.
Finances of the
institutions and for the international obligations of Bosnia and Herzegovina.
f.
Immigration,
refugee, and asylum policy and regulation.
g.
International
and inter-Entity criminal law enforcement, including relations with Interpol.
h.
Establishment
and operation of common and international communications facilities.
i. Regulation of
inter-Entity transportation.
j.
Air traffic
control”.
According to Art. III.3.(a):
“All governmental functions and powers not expressly
assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.”
This weakness of the State is
confirmed by Art. VIII.3 on Finances which makes the State dependent on
contributions from the Entities:
“The Federation shall provide two-thirds, and the Republika Srpska
one-third, of the revenues required by the budget, except insofar as revenues
are raised as specified by the Parliamentary Assembly.”
It should also be noted that the only Court explicitly provided for at
the State level is the Constitutional Court.
22.
There are however
a number of provisions providing an opening towards increased responsibilities
of the State. The human rights provisions appearing in the Constitution and the
principle of free movement of goods, services, capital and persons in its Art.
I.4 can be used to justify additional State responsibilities. There is also a
provision in Art. III.4 that the Presidency may facilitate inter-Entity
cooperation. The most important opening is however provided by Art. III.5:
“Additional Responsibilities.
- Bosnia and Herzegovina shall assume
responsibility for such other matters as are agreed by the Entities; are
provided for in Annexes 5 through 8 to the General Framework Agreement;
or are necessary to preserve the sovereignty, territorial integrity,
political independence, and international personality of Bosnia and
Herzegovina, in accordance with the division of responsibilities between
the institutions of Bosnia and Herzegovina. Additional institutions may
be established as necessary to carry out such responsibilities.
- Within six months of the entry into force of this
Constitution, the Entities shall begin negotiations with a view to
including in the responsibilities of the institutions of Bosnia and
Herzegovina other matters, including utilization of energy resources and
cooperative economic projects.”
23.
On the basis of such
provisions the responsibilities of the State have already been extended. The Venice
Commission contributed to this process in the past, inter alia by adopting
opinions “on the need for a judicial institution at the level of the state of
Bosnia and Herzegovina”
“on the competence of Bosnia and Herzegovina in electoral matters”
and “on the scope of responsibilities of Bosnia and Herzegovina in the field of
immigration and asylum”.
Nevertheless, it is obvious that the extensive interpretation of state
responsibilities has clear limits. More recently, additional state
responsibilities in the areas of defence and intelligence services were based
on the provision in Art. III.5.(a) that BiH shall assume responsibility for such other
matters as are necessary to preserve the sovereignty, territorial integrity,
political independence and international personality of BiH. The transfer of
powers by the Entities was used as the basis for additional responsibilities in
the fields of indirect taxation and the judiciary. In all cases the High
Representative played a decisive role to bring about these changes.
24.
On the basis of this
progress already achieved, representatives of some RS based parties argued
during the visit of the delegation to BiH that there was no need for an
amendment to the State Constitution and that any required transfers of
responsibilities could be carried out on the basis of the provision for
voluntary transfers of responsibilities in Art. III.5.(a).
25.
The Commission does
not share this position. First of all, it is obvious that the responsibilities
of the State of Bosnia and Herzegovina cannot be compared with the powers
enjoyed by European federal states such as Switzerland, Belgium, Austria,
Germany or Russia. In these countries legislative powers are mainly
concentrated at the federal level, there is a strong federal executive,
financial resources are mainly controlled by the federal level and federal
courts ensure respect for federal law. None of this applies in BiH.
26.
With such a weak state
Bosnia and Herzegovina will not be able to make much progress on the way
towards European integration. The negotiation of a Stabilisation and
Association Agreement with the EU requires institutions at the State level with
the necessary capacity and expertise to deal with the wide range of issues
covered by such agreements. The EU will want to have a single interlocutor and
definitely not be willing to negotiate with the two Entities separately. BiH
will need the necessary legislative powers to create the conditions for the
conclusion of such an agreement and to implement it. And, not least, BiH will
be expected to ensure the effective implementation of such an agreement within
both Entities. At present, the State level is not able to effectively ensure
compliance with the commitments of the country with respect to the Council of
Europe and the international community in general. With respect to the EU it is
unthinkable that BiH can make real progress with the present constitutional
arrangements. The EU will not countenance the kind of delay, indecision and
uncertainty that a multiplicity of governments entails.
27.
For a number of
reasons, a voluntary transfer of responsibilities seems clearly insufficient to
make the country fit for future integration into the European Union:
a)
a comprehensive and
not a piecemeal transfer of responsibilities will be required;
b)
a transfer not only of
legislative powers but also of executive agencies and financial resources will
be required; this goes far beyond what was hitherto achieved on a voluntary
basis;
c)
due to the financial
and economic situation in the country, it will not be possible to continue
simply creating further layers of bureaucracy at the State level in addition to
the multiple bureaucracies at the lower level; whole structures will have to be
transferred;
d)
the progress achieved
hitherto was to a large extent due to the efforts of and facilitation by the
High Representative; his role is however bound to decrease in the future;
e)
the constitutional situation should be transparent for
the citizens and for outside partners; the main rules therefore have to be set
forth in the Constitution.
28.
The Commission therefore considers a revision of the
State Constitution to strengthen the responsibilities of the State to be
indispensable. It points out that Art. X of the Constitution provides for a
procedure for amending the Constitution. This reform will require the consensus
of majorities within all three constituent peoples. The interest of all peoples
in BiH in European integration should make it possible to achieve such a
consensus.
b)
The functioning of the
institutions
29.
BiH is a country in transition facing severe economic
problems and desiring to take part in European integration. The country will
only be able to cope with the numerous challenges resulting from this situation
if there is a strong and effective government. The constitutional rules on the
functioning of the state organs are however not designed to produce strong
government but to prevent the majority from taking decisions adversely
affecting other groups. It is understandable that in a post-conflict situation
there was (and is) insufficient trust between ethnic groups to allow government
on the basis of the majoritarian principle alone. In such a situation specific
safeguards have to be found which ensure that all major groups, in BiH the
constituent peoples, can accept the constitutional rules and feel protected by
them. As a consequence the BiH Constitution ensures the protection of the
interests of the constituent peoples not only through territorial arrangements
reflecting their interests but also through the composition of the state organs
and the rules on their functioning. In such a situation, a balance has indeed
to be struck between the need to protect the interests of all constituent
peoples on the one hand and the need for effective government on the other.
However, in the BiH Constitution, there are many provisions ensuring the
protection of the interests of the constituent peoples, inter alia: the vital interest veto in the Parliamentary Assembly, the
two chamber system and the collective Presidency on an ethnic basis. The
combined effect of these provisions makes effective government extremely
difficult, if not impossible. Hitherto the system has more or less functioned
due to the paramount role of the High Representative. This role is however not
sustainable.
The vital interest veto
30.
The most important mechanism ensuring that no decisions
are taken against the interest of any constituent people is the vital interest
veto. If the majority of the Bosniac, Croat or Serb delegates in the House of
Peoples declare that a proposed decision of the Parliamentary Assembly is
destructive to a vital interest of their people, the majority of Bosniac, Serb
and Croat delegates have to vote for the decision for it to be adopted. The
majority of delegates from another people may object to the invocation of the
clause. In this case a conciliation procedure is foreseen and ultimately a
decision is taken by the Constitutional Courtas to the procedural regularity of the invocation. It is noteworthy that the
Constitution does not define the notion of vital interest veto, contrary to the
Entity Constitutions which provide a (excessively broad)
definition.
31.
It is obvious, and was confirmed by many interlocutors,
that this procedure entails a serious risk of blocking decision-making. Others
argued that this risk should not be overestimated since the procedure has
rarely been used and the Constitutional Courtin a decision of 25 June 2004
started to interpret the notion. The decision indeed indicates that the Court
does not consider that the vital interest is a purely subjective notion within
the discretion of each member of parliament and which would not be subject to
review by the Court. On the contrary, the Court examined the arguments put
forward to justify the use of the vital interest veto, upheld one argument and
rejected another.
32.
The Commission is nevertheless of the opinion that a
precise and strict definition of vital interest in the Constitution is
necessary. The main problem with veto powers is not their use but their
preventive effect. Since all politicians involved are fully conscious of the
existence of the possibility of a veto, an issue with respect to which a veto
can be expected will not even be put to the vote. Due to the existence of the
veto, a delegation taking a particularly intransigent position and refusing to
compromise is in a strong position. It is true that further case-law from the Constitutional Court may provide a definition of the vital
interest and reduce the risks inherent in the mechanism. This may however take
a long time and it also seems inappropriate to leave such a task with major
political implications to the Court alone without providing it with guidance in
the text of the Constitution.
33.
Under present conditions within BiH, it seems
unrealistic to ask for a complete abolition of the vital interest veto. The
Commission nevertheless considers that it would be important and urgent to
provide a clear definition of the vital interest in the text of the
Constitution. This definition will have to be agreed by the representatives of
the three constituent peoples but should not correspond to the present
definition in the Entity Constitutions which allows practically anything being
defined as vital interest. It should not be excessively broad but focus on
rights of particular importance to the respective peoples, mainly in areas such
as language, education and culture.
Entity veto
34.
In addition to the vital interest veto, Art. IV.3.d) of
the Constitution provides for a veto by two-thirds of the delegation from either
Entity. This veto, which in practice seems potentially relevant only for the RS,
appears redundant having regard to the existence of the vital interest veto.
Bicameral system
35.
Art. IV of the Constitution provides for a bicameral
system with a House of Representatives and a House of Peoples both having the
same powers. Bicameral systems are typical for federal states and it is
therefore not surprising that the BiH Constitution opts for two chambers.
However, the usual purpose of the second chamber in federal states is to ensure
a stronger representation of the smaller entities. One chamber is composed on
the basis of population figures while in the other either all entities have the
same number of seats (Switzerland,USA) or at
least smaller entities are overrepresented (Germany).In BiH this is quite different: in both
chambers two-thirds of the members come from the FBiH, the difference being
that in the House of Peoples only the Bosniacs and Croats from the Federation
and the Serbs from the RS are represented. The
House of Peoples is therefore not a reflection of the federal character of the
state but an additional mechanism favouring the interests of the constituent
peoples. The main function of the House of Peoples under the Constitution is
indeed as the chamber where the vital interest veto is exercised.
36.
The drawback of this arrangement is that the House of
Representatives becomes the chamber where legislative work is done and
necessary compromises are made in order to achieve a majority. The role of the
House of Peoples is only negative as a veto chamber, where members see as their
task to exclusively defend the interests of their people without having a stake
in the success of the legislative process. It would therefore seem preferable
to move the exercise of the vital interest veto to the House of Representatives
and abolish the House of Peoples. This would streamline procedures and
facilitate the adoption of legislation without endangering the legitimate
interests of any people. It would also solve the problem of the discriminatory
composition of the House of Peoples.
The collective Presidency
37.
Article V of the Constitution provides for a collective
Presidency with one Bosniac, one Serb and one Croat member and a rotating
chair. The Presidency endeavours to take its decisions by consensus (Art.
V.2.c)). In case of a decision by a majority, a vital interest veto can be
exercised by the member in the minority.
38.
A collective Presidency is a highly unusual
arrangement. As regards the representational functions of Head of State, these
are more easily carried out by one person. At the top of the executive there is
already one collegiate body, the Council of Ministers, and adding a second
collegiate body does not seem conducive to effective decision-making. This
creates a risk of duplication of
decision-making processes and it becomes difficult to distinguish the powers of
the Council of Ministers and of the Presidency. Moreover, the Presidency will
either not have the required technical knowledge available within ministries or
need substantial staff, creating an additional layer of bureaucracy.
39.
A collective Presidency therefore does not appear
functional or efficient. Within the context of BiH, its existence seems again
motivated by the need to ensure participation by representatives from all
constituent peoples in all important decisions. A single President with
important powers seems indeed difficult to envisage for BiH.
40.
The best solution therefore would be to concentrate
executive power within the Council of Ministers as a collegiate body in which
all constituent peoples are represented. Then a single President as Head of
State should be acceptable. Having regard to the multi-ethnic character of the
country, an indirect election of the President by the Parliamentary Assembly
with a majority ensuring that the President enjoys wide confidence within all
peoples would seem preferable to direct elections. Rules on rotation providing
that a newly elected President may not belong to the same constituent people as
his predecessor may be added.
The Council of Ministers
41.
This solution would involve a substantial strengthening
of the Council of Ministers which would receive the bulk of the powers of the
Presidency. This would also remove complications and contradictions within the
present system: now, there seems to be aconsiderable risk of overlap between the responsibility of the Presidency for
executing decisions of the Parliamentary Assembly (Art. V.3.e) and the
responsibility of the Council of Ministers to carry out the policies and
decisions of the State level (Art. V.4.a). The financial arrangements would
also be streamlined. At present the budget needs to go through four bodies
(Council of Ministers, Presidency, both chambers of the Parliamentary Assembly)
and the Parliamentary Assembly receives reports on expenditures by BiH from the
Council of Ministers and on expenditures of the Presidency from the Presidency.
Conclusion
42.
To sum up, the decision-making mechanisms at BiH level
are not efficient and rational but cumbersome and with too many possibilities
of blocking the taking of any decision.
While it would be unrealistic to expect the total abrogation of mechanisms such
as the vital interest veto, the criteria should be restricted and qualified.
The extent to which it is possible to streamline the legislative and executive
structures should also be examined.
c) Citizens or
peoples as the basis of the State
43.
The Constitution of Bosnia and Herzegovinaincorporates a large number of international human rights instruments, grants
priority to the European Convention on Human Rights over all other law,
underlines the democratic character of the state and puts strong emphasis on
the prohibition of discrimination. On the other hand, the state institutions
are structured not to represent citizens directly but to ensure representation
of the constituent peoples. Some legal problems resulting from this approach
will be examined below in Part V of this Opinion. However, beyond specific
legal problems this approach raises more general concerns. First of all, the
interests of persons not belonging to the three constituent peoples risk being
neglected or people are forced to artificially identify with one of the three
peoples although they may for example be of mixed origin or belong to a
different category. Moreover, there is a strong risk that all issues will be
regarded in the light of whether a proposal favours the specific interests of
the respective peoples and not of whether it contributes to the common weal.
Finally, elections cannot fully play their role of allowing political
alternance between majority and opposition. Each individual is free to change
his political party affiliation. By contrast, ethnic identity is far more
permanent and individuals will not be willing to vote for parties perceived as
representing the interest of a different ethnic group even if these parties
provide better and more efficient government. A system favouring and enshrining
a party system based on ethnicity therefore seems flawed.
44.
It would certainly not be realistic to expect that BiH
move quickly from a system based on ethnic representation to a system based on
representation of citizens. This will certainly be a long-term process.
Nevertheless the Commission wishes to encourage people and politicians in BiH
to start examining the extent to which the mechanisms of ethnic representation
are really required and to replace them progressively by representation based
on the civic principle.
2. The structure of the State
45.
The historical developments set forth above resulted in
BiH as an extremely decentralised federation, consisting of two Entities, one
of them again an extremely decentralised federation. This structure seems
neither rational nor efficient but there is no consensus on what should be
changed. There is general agreement that BiH has to remain a decentralised
state and that local self-government should be strengthened. However, there is
no consensus at all on which levels of government should exist between State
and municipality. As set forth above, within the FBiH it is generally accepted
that the present arrangements are not sustainable and there is broad consensus
on abolishing both Entities and replacing them by regions of
economic-administrative character. Within the RS based parties, there is
however no support whatsoever for abolishing the RS.
46.
There seems no doubt
that any attempt to revise the Constitution abolishing the Entities, even if
the required majority of two-thirds within the House of Representatives were to
be attained, would meet with a vital interest veto of the Serb representatives
(and an Entity veto from the RS). It could not be questioned that this veto
really concerns a vital interest of the Serb people. Moreover, it seems only
appropriate to require in the multi-ethnic context of BiH that major
constitutional amendments have to be agreed between the three peoples.
Therefore the option of abolishing the Entities does not seem to be available
for the foreseeable future and structural reform will have to take place within
the FBiH.
47.
This may be regretted since a federation of two
entities will always be problematic. Moreover, the present structure of the
State is largely based on the ethnic principle and maintaining it risks
reproducing and reinforcing the ethnic divisions. Accepting the continued
existence of the RS will also reinforce the wish of many Croats of having their
own entity. Nevertheless, it seems neither possible nor desirable to impose
from abroad the abolition of the RS. The Commission therefore feels obliged to
recommend solutions based on the continued existence of the two Entities.
3. The Federation of Bosnia and Herzegovina
a) Territorial
Structure
48.
Within the FBiH there is a general attitude which could
be regarded as paradoxical: on the one hand,there is general agreement that present structures are neither efficient nor
rational and not even financially sustainable. On the other hand there is no
willingness to undertake a thorough reform of the Federation structures if this
reform does not in parallel involve abolishing RS. Within the RS there is
however no willingness to question the existence of the Entity or to compromise
the structure of the RS, even if it would encourage reform of the Federation.
49.
This situation cannot continue. The Commission fully
shares the general opinion that structural reforms of the FBiH are imperative.
An area of its size, population and economic state of development cannot afford
such complicated arrangements. The FBiH has about two and a half million inhabitants.
There are 11 governments, the Federation government and the ten cantonal
governments, each with its own bureaucracy in addition to the State government
which also exercises responsibilities on the territory of the FBiH. Under these
circumstances more than 50% of GDP withinBiH go into financing the bureaucracy
and only a smaller part into public investment or services to the inhabitants.
This is not what citizens are entitled to expect from government. Moreover, the
situation is not improving but expenses for payment of civil servants, who
receive above-average salaries, are growing and will simply become impossible
to finance.
50.
It would therefore be unrealistic for the FBiH to
postpone reform in the vague hope of the reform or demise of the RS. Action
must be taken now to ensure its own best interests.
51.
The most radical reform option would be to simply
abolish the Cantons, thereby creating a situation similar to the RS. This
option seems in principle desirable and would provide for more efficient government.
It may however, at least in the short term, not seem acceptable to Croats who
do not have their own Entity and would thus be without a territory in which
they are in the majority. It may be easier to reduce the number of Cantons. On
its own, this would however not be sufficient to solve the problem.
52.
From the point of view of the Commission, a logical
step forward would be to concentrate the legislative function at the FBiH
level, making the Cantons structures of a mainly executive nature. At present
within BiH, legislative and executive responsibilities tend to be exercised in
parallel by the same usually quite low level body. Thus the FBiH Constitution
assigns the bulk of legislative and executive responsibilities to the Cantons.
The trend in European federal countries is however towards a mainly executive
federalism, concentrating legislative tasks at the central level and leaving
executive tasks to the entities which are closer to the citizen. In the FbiH,
with its small and economically weak cantons it seems impossible to have a
sophisticated legislative process at the Cantonal level. Moreover, at the FBiH
level, adequate respect for the interests of the constituent peoples can be
ensured, including through an – even modified – vital interest veto. There is
therefore no ethnic rationale for keeping legislative responsibilities at the
Cantonal level. On the other hand, the carrying out of executive tasks at the
Cantonal level would ensure that the activities of the public administration
reflect the preferences of the local majorities.
53.
The Commission therefore recommends, if abolishing the
Cantons seems politically impossible, a concentration of legislative tasks at
the level of the FBiH. This should permit a streamlining of the administration
both at the level of the FBiH and the Cantons. This implies a complete review
of the FBiH Constitution which, at present, grants only limited powers to the
Federation while leaving the remaining powers to the Cantons. The respective
powers of the Entity and the Cantons will also have to be defined far more
clearly. At present, citizens are often confronted with Entity and Cantonal (or
even municipal) bodies acting in parallel.
b)
Decision-making processes
54.
The FBiH Constitution provides for a vital interest
veto of the constituent peoples within the second chamber, the House of
Peoples. In contrast to the situation at the State level, Art. IV.A.17.a of the
Constitution provides a definition of vital interests. The list of vital
interests provided in this Article seems however excessively broad. Moreover,
it does not have much legal effect since, at the request of two-thirds of the
members of the caucus of a constituent people, any issue is regarded as
one concerning a vital interest. In the end this leaves the definition of vital interest to each
caucus and opens the door to abuse. The procedure provided before the Constitutional Court to resolve the question whether there is a
vital interest seems inappropriate and gives to the Court the task of deciding
on a political issue without sufficient guidance in the text of the
Constitution. A
precise and not too broad definition of vital interest would be preferable.
55.
As is the case for State level, here too one may wonder
whether the bicameral structure of the legislature is really rational and
efficient. In the House of Peoples each constituent people has 17 members with
7 members for the Others, although within the Federation the percentage of
Serbs in the population is quite small.
56.
The distribution of executive powers seems also
excessively cumbersome and complicated. Art. IV.B.7 of the Constitution
distributes responsibilities between the President, the Vice-Presidents, the
Prime Minister, the Deputy Prime Ministers and Ministers. Even in an
independent state, this would be excessive and this is even more the case in a
federated entity. The number of political offices should be reduced. One may
wonder whether a Presidency is at all needed in an entity in addition to the
government. One gets the impression that efficient and rational decision-making
is entirely sacrificed to the principle of involving representatives of each constituent people in
any decision. A government and an executive can however not function if each
office-holder is regarded as a delegate of a specific ethnic community able to
act only for this community and not as somebody entrusted with an office on
behalf of the entity as a whole.
57.
At present constitutional reform strengthening local
self-government is already being discussed within the Constitutional Commission
of the Federation
and the Commission encourages the adoption of such constitutional amendments.
Such a reform would correspond to the generally acknowledged need to strengthen
both the State and the municipal level while reviewing the powers of the levels
in between.
58.
The Commission
would also like to recall that in the year 2000 it took part in a process of reform of the
Federation Constitution at the request of the Constitutional Commission of the
FBiH parliament. This process of reform was interrupted due to the political
priority of the implementation of the Constitutional Court decision on the constituent peoples.
However, at the time it seemed promising and allowed the identification of a
number of shortcomings in the FBiH Constitution as well as possible solutions.
The Commissions is available to resume this exercise.
59.
In conclusion, the Commission notes that constitutional
arrangements in the FBiH are neither efficient nor rational. It recommends
concentrating legislative responsibilities at the FBiH level and undertaking
similar reforms as those recommended for the BiH level with respect to the
vital interest veto mechanism and the streamlining in particular of the
executive organs. The role of local self-government should be strengthened.
Moreover, a comprehensive reform of the FBiH Constitution seems desirable. In
the medium term, moving from a system based on ethnic representation to an
Entity based on citizenship should also be considered.
4.
The
Republika Srpska
60.
As a unitary entity, the RS does not have the same
structural problems as the FBiH. However, the lack of a regional structure
within the RS makes it all the more important to strengthen local
self-government. This need was generally acknowledged within the RS where the
consensus that BiH needs strong local self-government is shared. This consensus
is however not yet reflected in the RS Constitution. While its Chapter VI on
territorial organisation contains a list of municipal responsibilities, a
commitment to the principle of self-government is absent. A
constitutional reform strengthening self-government seems therefore a priority.
61.
The main problem concerning the functioning of the
institutions that was raised by many interlocutors was abuse of the vital
interest veto mechanism. This mechanism in the RS is identical to the one in
the FBiH and was indeed introduced in parallel with the present version of the
FBiH mechanism in the framework of the implementation of the Constitutional Court decision on the constituent peoples. It has
the same weaknesses as the FBIH mechanism and the Commission supports reviewing
it in parallel. The preferable approach would seem to be to develop a
definition of vital interest and a mechanism for resolving disputes which would
be parallel in the constitutions of the two Entities and mutatis mutandis
the State. In this way a constituent people “losing” part of a veto position in
an Entity where it is a minority would at the same time gain by governing more
easily where it is in the majority while still having to respect the legitimate
interests of the other constituent peoples.
62.
In the framework of the implementation of the Constitutional Court decision in the “constituent peoples” case,
the RS introduced into the Constitution an ethnic approach, which is based on
the equality of constituent peoples and distributes official functions between
representatives of constituent peoples and Others. The reason was that under
the previous, officially ethnically neutral text of the Constitution, non-Serbs
were massively discriminated against. As is the case within BiH and the FbiH,
it would certainly be desirable to make efforts to build up trust between the
communities in the RS so as to arrive in the future at a Constitution based on
the equality of citizens and not of peoples.
5. The future perspective
63.
In the considerations set forth above, the Commission
has concentrated on constitutional changes which seem realistic in the short
and medium term. In addition the more long-term perspective of moving from a
state based on peoples to a state based on citizens has been raised. Many of
the suggested amendments would
constitute important steps towards a more citizen-oriented approach.
64.
In this more distant perspective, the issue of
ownership of the constitutions and their democratic legitimacy also has to be
raised. The Constitutions of BiH and the FBiH were political compromises to
overcome armed struggle and the main focus was their contribution to the
establishment of peace. They were negotiated in foreign countries in a foreign
language and can in no way be considered as reflecting a democratic process
within the country. The RS Constitution, especially at the origin, was a
Constitution drafted in a state of war and was not based on the RS being part
of BiH or the wish of the population to integrate with Europeand be in line with European standards. Its aim was to defend the interests of
one people and it reflected the legal tradition of the former Yugoslavia.
65.
It seems questionable whether any of the three
Constitutions provides a sound basis for
the future. It is desirable for the citizens at some stage to decide to have an
entirely new constitution based on their own wishes and drafted during a period
without ethnic strife. This moment may not yet have arrived but when it does it
will be crucial that new constitutions not be perceived as being imposed by
some ethnic groups on others. A consensus between Bosniacs, Serbs and Croats
will be required if this is to be undertaken successfully. Even if this reform
is not for tomorrow, one should not lose sight of its desirability. The
ultimate goal should be to have democratically legitimate constitutions
prepared with the participation of all political forces and civil society in a
public and transparent process.
V. THE COMPATIBILITY OF THE CONSTITUTION OF BOSNIA AND HERZEGOVINA
WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS ANDTHE EUROPEAN CHARTER OF LOCAL SELF-GOVERNMENT
1. General considerations
66.
The provisions of Article II.2 of the Constitution of BiH
set out:
“International Standards. The rights and freedoms set forth in the European
Convention for the Protection of Human Rights and Fundamental Freedoms and its
Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”
At first sight it should be presumed that the Constitution is in full
conformity with the ECHR, to which it gives priority over all other law.
Nevertheless, the provisions of the Constitution on the composition and
election of the Presidency and the House of Peoples are often considered to be
incompatible with the ECHR. In its
Opinion on the electoral law of Bosnia and Herzegovina the Commission has already raised concerns as to
the compatibility of these provisions with international standards and the
present Opinion partly takes up again arguments developed there.
No other problems of compatibility of the BiH Constitution with the ECHR are
apparent and the Commission will therefore limit its examination to these two
provisions. However, it cannot be overlooked that these two possible
contradictions reflect an underlying tension between a constitutional system
based on collective equality of ethnic groups and the principle of individual
rights and equality of citizens.
2. Composition and
Election of the Presidency
67.
Under the terms of Article V of the Constitution,
“The Presidency of Bosnia and
Herzegovina shall consist of three Members: one Bosniac
and one Croat, each directly elected from the territory of the Federation, and
one Serb directly elected from the territory of the Republika Srpska.”
This
means in particular that:
·
to be elected member of the Presidency a citizen has to
belong to one of the constituent peoples;
·
the choice of the voters is limited to Bosniac and Croat
candidates in the FBiH and Serb candidates in the RS; and
·
Bosniacs and Croats can be elected only from the territory
of the FBiH and not from the RS, Serbs only from the RS and not from the FBiH.
68.
In a federal State special arrangements ensuring an
appropriate representation of the Entities within the federal institutions
are unobjectionable. In principle, in a
multi-ethnic State such as Bosniait appears also legitimate to ensure that a State organ reflects the
multi-ethnic character of society. The problem is however the way in which the territorial
and the ethnic principle are combined. The Constitutional Court of BiH referred
to this problem in the following terms in its decision concerning constituent
peoples in the Entity constitutions:
“65. A strict
identification of territory and certain ethnically defined members of common
institutions in order to represent certain constituent peoples is not even true
for the rules on the Presidency composition as laid down in Article V, first
paragraph: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and
one Croat, each directly elected from the territory of the Federation, and one
Serb directly elected from the territory of Republika Srpska.” One must not
forget that the Serb member of the Presidency, for instance, is not only
elected by voters of Serb ethnic origin, but by all citizens of Republika
Srpska with or without a specific ethnic affiliation. He thus represents
neither Republika Srpska as an entity nor the Serb people only, but all the
citizens of the electoral unit Republika Srpska. And the same is true for the
Bosniac and Croat Members to be elected from the Federation.”
69.
If the members of
the Presidency elected from an Entity represent all citizens residing in this
Entity and not a specific people, it is difficult to justify that they must
identify themselves as belonging to a specific people. Such a rule seems to
assume that only members of a particular ethnicity can be regarded as fully
loyal citizens of the Entity capable of defending its interests. The members of
the Presidency have a veto right whenever there is a violation of vital
interests of the Entity from which they were elected. It cannot be maintained
that only Serbs are able and willing to defend the interests of the RS and only
Croats and Bosniacs the interests of the Federation. The identity of interests
in this ethnically-dominated manner impedes the development of a wider sense of
nationhood.
70.
Furthermore, members of the three constituent peoples
can be elected to the Presidency but they may be prevented from standing as
candidates in the Entity in which they reside if they live as Serbs in the
Federation or as Bosniacs or Croats in the RS. Moreover, the Election Law
(based on the corresponding provisions of the Constitution) clearly excludes
Others, i.e. citizens of BiH who identify themselves as neither Bosniac nor
Croat nor Serb, from the right to be elected to the Presidency. This seems
clearly incompatible with the equal right to vote and to stand for election
under Article 25 of the ICCPR or with the equality under the law guaranteed to
members of minorities under Article 4 of the Framework Convention for the
Protection of National Minorities to formally exclude members of minorities
from a public office.
71.
With respect to the ECHR it has to be taken into
account that Art. 14 ECHR provides that “The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.” A violation of this article can therefore only
be assumed if the discrimination concerns a right guaranteed by the Convention.
However, the ECHR does not guarantee the right to elect a President or be
elected President. Article 3 of the (first) Protocol to the ECHR guarantees
only the right to elect the legislature.
72.
However, it has also to be taken into account that BiH
has ratified Protocol No. 12 to the ECHR, which guarantees the enjoyment of any
right set forth by law without discrimination. This Protocol will enter into
force soon, on 1 April 2005, and the
prohibition of discrimination will thereby be extended to cover the right to
elect a President or stand for election as President.
73.
One might however still wonder whether under the
specific, fairly exceptional, conditions of BiH such an apparent discrimination
may be justified. The European Court of Human Rights in its decisions Mathieu-Mohin
and Clerfayt v. Belgium of 2 March 1987and Melnychenko v. Ukraine of
19 October 2004 seemed willing to leave to States a particularly wide margin of
appreciation in the sensitive area of election law. Equality of voting rights
and non-discrimination are among the most important values of a constitutional
system. However, illicit discrimination can only be assumed if there is no
reasonable and objective justification for a difference in treatment.
74.
In the present case, the distribution of posts in the
State organs between the constituent peoples was a central element of the
Dayton Agreement making peace in BiH possible. In such a context, it is
difficult to deny legitimacy to norms that may be problematic from the point of
view of non-discrimination but necessary to achieve peace and stability and to
avoid further loss of human lives. The inclusion of such rules in the text of
the Constitution at that time therefore does not deserve criticism, even though
they run counter to the general thrust of the Constitution aiming at preventing
discrimination.
75.
This justification has to be considered, however, in
the light of developments in BiH since the entry into force of the
Constitution. BiH has become a member of the Council of Europe and the country
has therefore to be assessed according to the yardstick of common European
standards. It has now ratified the ECHR and its Protocol No. 12. As set forth
above, the situation in BiH has evolved in a positive sense but there remain
circumstances requiring a political system that is not a simple reflection of
majority rule but which guarantees a distribution of power and positions among
ethnic groups. It therefore remains legitimate to try to design electoral rules
ensuring appropriate representation for various groups.
76.
This can, however, be achieved without entering into
conflict with international standards. It is not the system of consensual
democracy as such which raises problems but the mixing of territorial and
ethnic criteria and the apparent exclusion from certain political rights of
those who appear particularly vulnerable. It seems possible to redesign the
rules on the Presidency to make them compatible with international standards
while maintaining the political balance in the country.
77.
A multi-ethnic composition can be ensured in a
non-discriminatory way, for example by providing that not more than one member
of the Presidency may belong to the same people or the Others and combining
this with an electoral system ensuring representation of both Entities. Or, as
suggested above, as a more radical solution which would be preferable in the
view of the Commission, the collective Presidency could be abolished and
replaced by an indirectly elected President with very limited powers.
3. Composition and election of the House of Peoples
78.
With respect to the
House of Peoples of BiH, Art. IV of the Constitution provides:
“1. House of Peoples.
The House
of Peoples shall comprise 15 Delegates, two-thirds from the Federation
(including five Croats and five Bosniacs) and one-third from the Republika
Srpska (five Serbs).
(a) The designated Croat and Bosniac
Delegates from the Federation shall be selected, respectively, by the Croat and
Bosniac Delegates to the House of Peoples of the Federation. Delegates from the
Republika Srpska shall be selected by the National Assembly of the Republika
Srpska.”
Therefore:
·
only citizens identified as belonging to one of
the three constituent peoples can be elected to the House of Peoples;
·
Serbs can only be elected to the House of
Peoples from the Republika Srpska, Bosniacs and Croats only from the Federation
of Bosnia and Herzegovina;
·
within the House of Peoples of the Federation,
only the Bosniac and Croat delegates may take part in the election; other
delegates are deprived of the right to
vote in this respect.
These rules raise particular
problems with respect to the Federation. As regards the right to vote, this
right applies also to indirect elections. In the Federation not all members of
the Federation House of Peoples may vote but only the Croat and Bosniac
members. There is therefore no equality between the parliamentarians. In the RS
the situation is somewhat different since all members of the National Assembly
may take part in the election although their choice is limited to Serb
candidates. Although these rules reflect the same difficulties of mixing ethnic
and territorial concepts as expressed in relation to the BiH Presidency, it is
difficult to find a legal rationale for this different treatment of the same
election in the two Entities, especially since this question is regulated by
the Constitution of the State and not individually by the Constitutions of the
Entities.
79.
With respect to the right to stand for election, as in
the case of the BiH Presidency, persons
not identifying themselves as Bosniac, Croat or Serb are completely excluded.
In addition, entity and ethnicity are linked and only Serbs from the RS
and Croats and Bosniacs from the Federation may be elected. No Serb from
the Federation and no Croat or Bosniac from the RS may sit in the House of
Peoples, which is a chamber with full legislative powers. A significant part of
the population of BiH therefore does not have the right to stand for elections
to the House of Peoples.
80.
The House of Peoples is a Chamber with full legislative
powers. Article 3 of the (first) Protocol to the ECHR is thereby applicable and
any discrimination on ethnic grounds is thereby prohibited by Art. 14 ECHR. As
to a possible justification, the same considerations as with respect to the
Presidency apply. While it is a legitimate aim to try to ensure an ethnic
balance within Parliament in the interest of peace and stability, this can
justify ethnic discrimination only if there are no other means to achieve this
goal and if the rights of minorities are adequately respected. For the House of
Peoples it would for example be possible to fix a maximum number of seats to be
occupied by representatives from each constituent people. Or, as argued above,
a more radical solution which would have the preference of the Commission,
could be chosen and the House of Peoples simply be abolished and the vital
national interest mechanism be exercised within the House of Representatives.
4.
Compatibility with the European Charter
of Local Self-Government
82. The
Constitution of BiH does not contain any provision on local self-government.
Since local self-government is within the responsibility of the Entities, this
is not surprising. However, having regard to the general consensus in BiH in favour
of strong local self-government, it would seem appropriate to introduce a
reference to this principle into the text of the Constitution.
5.
Conclusions
83.
In conclusion, the rules on the composition and
election of the Presidency and the House of Peoples raise concerns as to their
compatibility with the European Convention on Human Rights. The rules on the
composition and election of the House of Peoples seem incompatible with Art. 14
ECHR, the rules on the composition and election of the Presidency seem
incompatible with Protocol No. 12, which enters into force for BiH on 1 April 2005.
VI.
THE COMPATIBILITY OF THE POWERS OF THE HIGH
REPRESENTATIVE WITH COUNCIL OF EUROPESTANDARDS
1. The
scope of the powers of the High Representative
84.
As set forth above, the High Representative
derives his powers from Annex X to the Dayton Agreement making him the “final
authority in theatre regarding the interpretation of this Agreement on the
civilian implementation of the peace settlement” and giving him, inter
alia, the power to “facilitate, as the High
Representative judges necessary, the resolution of any difficulties arising in
connection with civilian implementation.”
85.
The powers of the High Representative resulting from
this Annex were extensively interpreted at the Bonn Peace Implementation
Conference of 10 December 1997.In the Conclusions of the Conference it is stated:
“The Council welcomes the High Representative's intention
to use his final authority in theatre regarding interpretation of the Agreement
on the Civilian Implementation of the Peace Settlement in order to facilitate
the resolution of difficulties by making binding decisions, as he judges
necessary, on the following issues:
a.
timing,
location and chairmanship of meetings of the common institutions;
b.
interim
measures to take effect when parties are unable to reach agreement, which will
remain in force until the Presidency or Council of Ministers has adopted a
decision consistent with the Peace Agreement on the issue concerned;
c.
other measures
to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities, as well as the smooth running of the
common institutions. Such measures may include actions against persons holding
public office or officials who are absent from meetings without good cause or
who are found by the High Representative to be in violation of legal
commitments made under the Peace Agreement or the terms for its
implementation.”
86.
The main actions
undertaken by the High Representative on this basis
were, on the one hand, to impose legislation, both at state level and within
the Entities, including amendments to the Entity constitutions, and, on the
other hand, to remove from office civil servants or elected public officials
(including the President of an Entity and a member of the Presidency of BiH)
who failed to co-operate in the implementation of the Dayton Agreement with a
particular focus on lack of co-operation with the International Criminal
Tribunal for the Former Yugoslavia (ICTY). There are other individual acts of
the High Representative, e.g. on business licenses, but these raise legal
issues of a similar nature and will not be examined separately. From a
political point of view, these actions by the High Representative seem to have
been beneficial. Without them, BiH would not have been able to achieve the
progress it has already made. This opinion is not only expressed by the
representatives of the international community but widely shared by the local
population and most politicians, at least in the FBiH. As set forth in
Resolution 1384, it is however certainly not a normal situation that an
unelected foreigner exercises such powers in a Council of Europe member state
and the justification for these powers for the future merits not only political
but also legal consideration. The powers can be qualified as emergency powers.
By their very nature, emergency powers have however to cease together with the
emergency originally justifying their use.
2. The power to enact legislation
87.
The High Representative
has enacted many laws, both completely new laws and amendments to existing
legislation, and has even amended Entity Constitutions. As set forth above, the
legislative process in BiH is unduly cumbersome and provides far too many
opportunities to block the adoption of legislation. The politicians
representing the various constituent peoples tended to be unable or unwilling
to reach an agreement on most matters. The power of the High Representative to
enact legislation therefore provides a safety valve making it possible to adopt
urgently required legal texts. It also seems a fair assessment to state that
these decisions of the High Representative were generally taken in the best
interest of the country, were responsible for much of the progress made by BiH
hitherto and were a necessary basis for the implementation of the reforms
bringing the country closer to European standards. Generally, these decisions
seem to have been beneficial for the people of BiH. In particular, they were
decisive for establishing freedom of movement throughout BiH and for
facilitating the return of refugees.
88.
On the other hand, the concerns with respect to
this power are very weighty. The democratic principle of the sovereignty of the
people requires that legislation is adopted by a body elected by the people.
Art. 3 of the (first) Protocol to the ECHR requires the election of the
legislature by the people, and this right is deprived of its content if
legislation is adopted by another body. As a member state of the Council of Europe,
BiH is responsible for the commitments with respect to the Organisation and
this responsibility has to be fulfilled by the country and not by the
international community.
89.
It also has to be taken
into account that the power over such decisions by the High Representative is
limited. Politically, the High Representative is responsible before the Peace
Implementation Council (PIC) and his decisions often refer to declarations of the Steering Board of
the PIC. This is however not a responsibility to the people of BiH (although the
personal commitment of the present High Representative and his predecessors to
the well-being of the people of BiH is beyond doubt). Legally, the
Constitutional Court of BiH exercises judicial control of the constitutionality
of the content of legislation enacted by the High Representative in the same
way as for legislation adopted by the Parliamentary Assembly of BiH. However,
it does not examine whether there was enough justification for the High
Representative to enact the legislation instead of leaving it to the
democratically elected organs of BiH.
90.
To sum up, the need for
the wide powers exercised by the High Representative certainly existed in the
early period following the conclusion of the Dayton Agreement. However, such an
arrangement is fundamentally incompatible with the democratic character of the
state and the sovereignty of BiH. The longer it stays in place the more
questionable it becomes. There is a strong risk of perverse effects: local politicians have
no incentive to accept painful but necessary political compromises since they
know that, if no agreement is reached, in the end the High Representative can
impose the legislation. So why take responsibility and not leave it to the High
Representative? A dependency culture incompatible with the future development
of BiH risks being created.
91.
The Commission notes that the present High
Representative himself seems conscious that this power should be used only in
exceptional cases and that the quantity of legislation imposed by the High
Representative has been reduced since 2002. While it may be premature to
immediately abrogate this power of the High Representative, its use should
gradually be abandoned, preferably in parallel with a constitutional reform
making the legislative process in BiH more efficient.
3. Removals from office by the High
Representative
92.
The various High
Representatives have taken a large number of individual decisions over the
years. Most of them concern the removal from office of civil servants or
elected politicians. They also, however, include sanctions such as removal from
functions in a political party or the freezing of bank accounts. The Commission
will focus in its consideration on the removals from office. More than 60 such
decisions concerning politicians from the RS were handed over to the delegation
by the President of the RS, Mr Cavic. The majority of removals by the High
Representative is based on non-co-operation with the ICTY. There are however
also removals for corruption or mismanagement of public assets or other
offences such as interference with the judiciary or not carrying out duties as
a judge. Earlier decisions refer to obstructing the implementation of the
Dayton Agreement by not respecting the institutions established by the
Agreement (establishment of parallel institutions). The decisions always take
immediate effect. They include a bar to holding future public office which is
not limited in time (usually until the High Representative lifts the ban).
However, recently the High Representative has taken the initiative of starting
a process of rehabilitation of some of the persons dismissed earlier.
93.
The decisions by the
High Representative are not subject to appeal. The ordinary courts do not have
jurisdiction and the Constitutional
Court hitherto has in all
cases challenging his powers submitted to it declined to take jurisdiction.
Several cases are pending before the European Court of Human Rights.
94.
The termination of the
employment of a public official is a serious interference with the rights of
the person concerned. In order to meet democratic standards, it should follow a
fair hearing, be based on serious grounds with sufficient proof and the
possibility of a legal appeal. The sanction has to be proportionate to the alleged
offence. In cases of dismissal of elected representatives, the rights of their
voters are also concerned and particularly serious justification for such
interference is required.
95.
In this context the Commission is certainly
not called upon to enter into a quasi-judicial scrutiny of the individual
decision of the High Representative. It can only provide a broad general
assessment of the compatibility of these decisions with international
standards. The removals by the High Representative certainly pursue a
legitimate aim and are based on serious grounds. Non-co-operation with ICTY is
a serious violation of the international obligations of the country, and
corrupt practices as well as the establishment of parallel institutions to the
legitimate state institutions also justify tough sanctions. Subject to a
detailed case-by-case analysis, the sanction of dismissal does not seem
disproportionate to the alleged offences.
96.
The main concern is
however that the High Representative does not act as an independent court and
that there is no possibility of appeal. The High Representative is not an
independent judge and he has no democratic legitimacy deriving from the people
of BiH. He pursues a political agenda, agreed by the international community,
which serves the best interests of the country and contributes to the
realisation of Council of Europe standards. As a matter of principle, it seems
unacceptable that decisions directly affecting the rights of individuals taken
by a political body are not subject to a fair hearing or at least the minimum
of due process and scrutiny by an independent court.
97.
It would have been
unrealistic to have insisted on immediate full compliance with all
international standards governing a stable and full-fledged democracy in a
post-conflict situation such as existed in BiH following the adoption of the
Dayton Agreement. The addressees of the decisions of the High Representatives
were often powerful individuals and the actions taken by them were generally
actions taken in the perceived interest of their political party or ethnic
community. It would furthermore have been unrealistic to expect that the BiH
judicial system should have been capable of effectively dealing with such
actions in the early post-conflict period. It is therefore understandable that
the decisions were not made subject to control by the courts of BiH. This
situation can however not last forever but, also taking into account the
important reforms of the judiciary carried out at the request of or imposed by
the High Representative, the day must come when such decisions are made subject
to full judicial control and made the responsibility of the proper national
institutions.
98.
It is not up to the
Commission to indicate a precise date when such a transfer should take place although
it should not be in the too distant future. But even pending such transfer, the
present practice will have to be substantially modified to make it acceptable
as an interim solution. The continuation of such power being exercised by a
non-elected political authority without any possibility of appeal and any input
by an independent body is not acceptable. As an urgent step the Commission
recommends setting up an independent panel of legal experts which would have to
give its consent to any such decision of the High Representative. Having regard
to the confidential nature of many elements of the file, this might be a body
composed of international experts.
99.
In order for such a body
to work effectively, it will be necessary to define the possible measures to be
taken by the High Representative and the offences justifying such measures
clearly and precisely. The conclusions of the Bonn conference are not
precise enough to enable a legal panel to determine the justification of
individual removals. Furthermore, the issue of the duration of the ban on the
holding of future public office and of possible rehabilitations will also have
to be addressed. In this respect, the Commission welcomes as a first step the
recent decision of the High Representative to initiate a process of
rehabilitation of some the persons dismissed earlier. If the office of High
Representative were to be terminated in the near future, there would no longer
be a political body enforcing respect for the previous decisions of the High
Representative but their legal validity would not automatically cease.
4.
Conclusions
100.
The Commission
appreciates the fact that the use of the Bonn powers by the High
Representative was beneficial for BiH and its citizens and a necessity
following a bloody war. However, this practice does not correspond to
democratic principles when exercised without due process and the possibility of
judicial control. Its justification becomes more questionable over time. The
Commission therefore calls for a progressive phasing out of these powers and
for the establishment of an advisory panel of independent lawyers for the
decisions directly affecting the rights of individuals pending the end of the
practice. While BiH may still need more guidance from the international community,
this could be provided by more subtle means. At present, the High
Representative is at the same time the EU Special Representative. If he were to
retain only the role of EU Special Representative comparable to the practice in
“the former Yugoslav
Republic of Macedonia”, this would allow the transformation of the role of the High
Representative from a decision-maker
into that of a mediator. The interest of the people of BiH in European
integration should ensure the effectiveness of
this role .
VII.
SUMMARY OF MAIN
CONCLUSIONS
101.
To sum up, the time
seems ripe to start a process of reconsideration of the present constitutional
arrangements in BiH and the impetus provided by the Parliamentary Assembly in
this respect is most welcome. Constitutional reform is indispensable since
present arrangements are neither efficient nor rational and lack democratic
content.
102.
A central element of the
first stage of constitutional reform has to be a transfer of responsibilities
from the Entities to BiH by means of amendments to the BiH Constitution. This
is an indispensable step if any progress is to be achieved in the process of
European integration of BiH. This step will be difficult since, as with other
constitutional amendments in BiH, it will have to be based on consensus among
the representatives of the three constituent peoples. Constitutional reform
cannot be imposed. Another element of the first stage should be a streamlining
of decision-making procedures within BiH, especially with respect to the vital
interest veto, and a reform of the provisions on the composition and election
of the Presidency and the House of Peoples which seem either now or following
the entry into force of Protocol No. 12 on 1 April 2005 incompatible with the
ECHR. The reform of the vital interest veto at the State level could best be
carried out in parallel with similar reforms in both Entities.
103.
Another pressing issue
is the territorial organisation of BiH. In the view of the Venice Commission, any
solution implying abolishing the two Entities seems unrealistic in a medium
term perspective since this would not be accepted within the RS. A reform of
the structures within the FBiH cannot be put on hold in the vague hope of a
change of approach in the RS. The most realistic option for such reform, which
would also be in line with general European trends, would be to concentrate
legislative responsibilities within the FBiH at the Entity level. At the same
time, local government in both the FBiH and the RS should be strengthened.
Completely abolishing the Cantons would be an even better solution but this may
not be politically possible for the moment.
104.
Further constitutional
reforms, changing the emphasis from a state based on the equality of three
constituent peoples to a state based on the equality of citizens, remain
desirable in the medium and long term. If the interests of individuals are
conceived as being based mainly on ethnicity, this impedes the development of a
wider sense of nationhood. In this context the people of BiH will also have to
decide whether they want to replace their present Constitution negotiated as
part of a peace treaty by an entirely new Constitution which would enjoy full
democratic legitimacy as the fruit of a democratic constituent process in BiH.
