EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
draft amendments
to the constitution
of bosnia and herzegovina
Part I
Draft amendments
submitted by the Presidency
to the Parliamentary Assembly
Part II
Draft amendment
submitted to the Presidency
PART I
Draft amendments submitted by the Presidency to the
Parliamentary Assembly
On the basis of
Article X (1.) of the Constitution of Bosnia and Herzegovina (Annex 4 of the
General Framework Agreement on Peace in Bosnia and Herzegovina), the
Parliamentary Assembly of Bosnia and Herzegovina, at the _____________ session
of the House of Representatives, held on _________, 2006, and the session of
the House of Peoples, held on _________, 2006, adopted the following:
Amendment I
In the Constitution of Bosnia and Herzegovina, Article
III, item 1 shall be amended and shall read:
1.
Competencies of the Institutions of Bosnia
and Herzegovina.
Competencies of the institutions of Bosnia and
Herzegovina:
a.
Defense and security
b.
Foreign policy
c.
Foreign trade policy
d.
Customs policy
e.
Monetary policy, as prescribed
by Article VII
f.
Financing of the institutions
and international obligations of Bosnia and Herzegovina
g.
Policy and regulation of
migration, refugees, immigration and asylum
h.
Implementation of international
and inter-entity criminal law enforcement regulations, including relations with
Interpol
i.
Establishment and functioning
of the BiH Court and the BiH Prosecutor’s Office
j.
Establishment and operation of
common and international communications
k.
Regulation of international and
inter-Entity transportation
l.
Air traffic control
m.
Remaining competencies as
regulated by law
After item 1. a new item 2. is introduced and shall
read:
2. The shared
competencies of the institutions of BiH are:
a.
Tax system
b.
Electoral process
c.
Judiciary
d.
Agriculture
e.
Science and technology
f.
Ecology
g.
Local self-governance
h.
Remaining competencies as
regulated by law.
Previous item 2. “Competencies of the
Entities” becomes item 3. In the current point 3.a), at the end of the
text, instead of a period, a comma is introduced, and the following is added:
“in accordance with European standards.”
Previous item 3. and 4. become item 4. and 5.
Previous item 5. becomes item 6.
After the current item 6.a), additional items 6.b) and 6.c)
are inserted and shall read:
b. Competencies that have been transferred
to the State may be returned to the Entities with the unanimous consent of the
State and both Entities.
c. State
institutions are responsible for negotiating, developing, adopting and
implementing, and the functioning of laws necessary for the fulfillment of
European standards, as well as political and economic conditions linked with
European integration. The State shall ensure compliance with the principles,
priorities, and demands set forth by the European Union in the phases before
and after accession. The State will establish the necessary bodies by law and
undertake the necessary measures and determine the necessary procedures for the
fulfillment of all criteria for accession and membership in the European Union,
which also includes the necessary mechanisms of coordination and cooperation
with authorities at lower levels.
Previous item 5.b) of this paragraph becomes
item 6.d).
Amendment II
In the Constitution of Bosnia and Herzegovina, Article
IV shall be amended and shall read:
Parliamentary
Assembly
1.
General Principles
Legislative power for the State of Bosnia and Herzegovina shall be
vested in the Parliamentary Assembly.
2.
Structure and Election of the
Parliamentary Assembly.
a.
The Parliamentary Assembly
shall be comprised of the House of Representatives and the House of Peoples.
b.
The House of Representatives
shall have 87 Members, of which three seats are guaranteed for those who are
not members of the constituent peoples.
c.
Members of the House of
Representatives shall be elected on the basis of the general and equal voting
right, by secret voting, directly, and on the basis of the Election Law.
d.
The House of Peoples shall have
21 Members, of which seven are Bosniaks, seven are Croats, and seven are Serbs.
e.
Members in the House of Peoples shall be elected indirectly from the
House of Representatives, on the basis of the general voting right, in
accordance with the Election Law.
3.
Term and Eligibility of Members.
a.
Members of the Parliamentary Assembly shall serve 4 year terms.
b.
Any eligible voter who has reached the
age of 18, and who has voting right may serve as a Member of the Parliamentary
Assembly.
c.
Members of the Parliamentary
Assembly may not hold any other elected office or public position, during
his/her mandate in the Parliamentary Assembly, in accordance with the Law on
Conflict of Interests.
4.
Parliamentary Rules of
Procedure.
Each House shall adopt its Rules of Procedure.
5.
President and Vice Presidents
of the Houses of Parliamentary Assembly
a.
Houses of the Parliamentary Assembly shall have a President and two Vice
Presidents and shall elect them, via a majority vote, from among its members. President
and vice-presidents may not be from the same constituent people.
b.
The President of the House of
Representatives of the Parliamentary Assembly shall represent the Parliamentary
Assembly and is responsible for its functioning.
c.
The President of the House shall be responsible for the efficient
functioning of the House, shall represent the House before other branches of
the government, and perform other duties as defined by law and the House’s
Rules of Procedure.
d.
The Vice President of the House shall assist the President in his or her
duties and perform other duties as defined by law and the Rules of Procedure.
e.
The President and Vice Presidents shall be elected to a four-year term,
and shall be dismissed in the same manner they were elected.
f.
The Presidents of the House of Representatives, of the House of Peoples,
and of the Council of Ministers may not be from the same constituent people.
6.
Sessions of the Houses of the
Parliamentary Assembly and session of
the Parliamentary Assembly
a.
Sessions of the House shall be
convened by the President of the House in accordance with the Rules of
Procedure.
b.
Each House shall be convened in
Sarajevo at the latest 30 days after the election.
c.
At the request of the President
of the Parliamentary Assembly, the President of the Council of Ministers, the
President of BiH, or one third (1/3) of the members of the Parliamentary
Assembly that includes 1/3 of the members of each House, an extraordinary
session of the Parliamentary Assembly shall be convened.
7.
Competencies of the House of
Representatives.
a.
The House of Representatives has competencies over all legislation.
b.
The House of Representatives
shall:
i.
Adopt constitutional
amendments.
ii.
Adopt legislation;
iii.
Decide on sources and amounts
of funds for the functioning of institutions and servicing international
obligations of Bosnia and Herzegovina;
iv.
Adopt the budget of BiH
institutions and international obligations of BiH;
v.
Ratify international
agreements;
vi.
Participate in election of the
Presidency of BiH in accordance with the Constitution;
vii.
Confirm the President of the
Council of Ministers of BiH and Ministerial slates;
viii.
Oversee the work of the Council
of Ministers and other institutions that are accountable to the House in
accordance with the Constitution and laws;
ix.
Nominate and elect officials as
defined by the Constitution and law;
x.
Have all other powers and
duties assigned by the Constitution and law.
8.
Competencies of the House of Peoples
a.
Consideration of all laws that
are adopted by the House of Representatives, that relate to the vital national
interest. The House of Peoples has the
right to vital national interest veto in accordance with paragraph 10 of this
article.
b.
Shall adopt constitutional
amendments.
c.
Participate in election of the
President of Bosnia and Herzegovina and Vice-Presidents of Bosnia and Herzegovina
in accordance with the Constitution.
9.
Legislative Procedures.
a.
The Council of Ministers and
Members of both houses of the Parliamentary Assembly may initiate legislation. Bills shall be introduced in the House of
Representatives.
b.
All votes shall be open and recorded, unless otherwise determined by this
Constitution and the rules of parliamentary procedure.
c.
Majority of all members of the House of Representatives shall constitute
a quorum.
d.
All decisions in the Houses of
Representatives will be made by the majority vote of those present and voting.
e.
The members of the House of
Representatives shall exert maximum effort in order to make certain the
majority includes no fewer than one-third of the votes of the members from the
territories of each entity. If the
majority does not include one-third of the votes of the members from the
territories of each entity, then the President of the House and his
Vice-Presidents, by working in a joint commission, shall endeavor to reach an
agreement within three (3) from the date of vote. If those endeavors fail, the decisions will
be made by the majority vote of those present and voting, providing that those
votes ‘against’ do not include two-third (2/3), or more, of the members elected
from each entity.
f.
Each caucus in the House of Peoples shall make
decisions by simple majority.
g.
After
they are adopted in the House of Representatives, all laws are forwarded to the
House of Peoples. Every caucus of the constituent peoples is entitled within 15
days from the day of receipt of the law, if it considers that the law has
violated a vital national interest, to initiate the procedure for the
protection of Vital National Interest, by executing a veto. If the procedure for the protection of Vital
National Interest is not initiated within the prescribed period of time, the
law adopted in the House of Representatives becomes effective.
h.
Unless and until the veto is
challenged, the appropriate caucus of the House of Peoples shall work to amend
laws determined to be destructive to Vital National Interests so that they are
no longer considered destructive.
i.
If the appropriate caucus of
the House of Peoples amends a law, the law must be resubmitted to the House of
Representatives for confirmation, within 30 days from the date of veto.
j.
The Parliamentary Assembly shall publish a complete
record of its deliberations and shall, save in exceptional circumstances in
accordance with its rules, deliberate publicly.
k.
Legislative acts take effect after being published
in the Official Gazette of Bosnia and Herzegovina.
10.
Vital National Interests Veto.
a.
The constituent peoples of
Bosnia and Herzegovina have an inherent right to protect their vital national
interests.
b.
Vital National Interests shall
be protected through the Vital National Interests Veto.
c.
Vital National Interests shall also
be protected at the state level.
d.
The Vital National Interest
Veto may be invoked within the House of Peoples regarding:
i.
The rights of all three
constituent peoples to be represented in legislative, executive, judicial
authorities, and to have equal rights to be involved in decision-making
processes;
ii.
The identity of a constituent
people;
iii.
Territorial organization;
iv.
Organization of the bodies of
public authority;
v.
Education;
vi.
Use of language and
alphabet;
vii.
National symbols and flags;
viii.
Spiritual heritage,
particularly the fostering and affirmation of religious and cultural identity
and traditions;
ix.
Preservation of the integrity
of Bosnia and Herzegovina;
x.
Public information systems;
xi.
Amendments to BiH Constitution;
xii.
Any issue declared to be a
Vital National Interest by 2/3 of one of the caucuses in the House of Peoples.
e.
Review of the Use of Vital National Interests Veto
i.
The majority of delegates from
one of the constituent peoples caucuses, for cases from items 10.d. from i. to
xi., as well as 2/3 of the delegates from among the ranks of one constituent
peoples for cases from item 10.d.xii may invoke the Vital National Interest
Veto in the House of Peoples and request that it be included in the agenda in
the House of Peoples. The constituent
peoples caucus that invokes the Vital National Interest Veto must produce a
written explanation detailing why it invoked the Vital National Interest Veto
within three (3) days from the day the request from the previous item was
submitted.
ii.
If the majority of delegates of
one of the other constituent peoples caucuses believe that the Vital National
Interest Veto was invoked without a reason, they may submit an appeal before
the Constitutional Court within 10 days from the day the written explanation was submitted.
iii.
The Constitutional Court may
decide, in accordance with state law and the Constitution, whether the Veto was
invoked properly (procedural review), and whether the interest qualified as a
vital national interest and whether it violates a vital national interest
(review on the merits).
iv.
The BiH Constitutional Court
must make a decision and submit it to the Parliamentary Assembly within 15 days
from the day it received the appeal.
v.
If the Constitutional Court
determines that the provisions of an adopted law are not harmful to the vital
national interest, the law is considered passed the day the Constitutional
Court announces its decision and becomes effective once it is published.
vi.
If the Constitutional Court
determines that the law is harmful to the vital national interest, the House of
Representatives shall change the law so that it is not harmful to the vital
national interest, and in accordance with the Constitutional Court ruling.
11.
Dissolution of the Parliamentary Assembly
a) The Parliamentary Assembly may dissolve
itself in accordance with the Rules of Procedure.
b) The Parliamentary Assembly shall be
dissolved when the House of Representatives fails to elect the President of the
Council of Ministers (Prime Minister) after the third vote.
With
these provisions, the provisions of Article IV of the BiH Constitution are
modified, except for paragraph 1., item 2, “House of Representatives” in which
the number: “42” is replaced by number: “87”, while the remaining text of
paragraph 1. remains unchanged.
Amendment
III
In the Constitution of Bosnia and Herzegovina, Article V paragraph 1. and
items 1., 2., and 3. shall be amended and shall read:
Presidency
Bosnia
and Herzegovina has a Presidency, which is comprised of a President and two Vice-presidents. The President of the BiH Presidency is the
President of Bosnia and Herzegovina (hereinafter: the President), and the
Vice-presidents in the Presidency are Vice-presidents of Bosnia and Herzegovina
(hereinafter: Vice-presidents). The President and Vice-presidents must not be
from the same constituent people.
1.
The President shall work
cooperatively with the Parliamentary Assembly and the Council of Ministers of
Bosnia and Herzegovina as well as other BiH institutions to ensure the regular
and efficient functioning of the State.
2.
Election and the term of office
a.
Candidates for the Presidency members may be nominated by 20% of members
in the House of Peoples or by 10% of members in the House of
Representatives. Candidates shall be
directly elected members of the Parliamentary Assembly. Members may support the nomination of one
candidate only.
b.
Constituent peoples caucuses in
the House of Peoples, by majority vote of each caucus, on the basis of
nominated proposals, shall select one candidate each, which shall make up a
slate of three candidates.
c.
The slate of three proposed
candidates for President and two Vice-Presidents of BiH shall be forwarded to
the House of Representatives for confirmation.
d.
The slate shall include at least
one member of the Presidency from each entity and the maximum of one member of
the Presidency shall come from each people.
e.
The term of office of the
Presidency shall be 4 years, and the members may be elected for an additional
consecutive term.
f.
The election of the President, by rotation or in another manner, shall
be defined by the Parliamentary Assembly of Bosnia and Herzegovina.
g.
Before assuming the office, the
Presidency members shall take an official oath in accordance with the law.
3. Procedures
The
President and two Vice-presidents shall determine their Rules of Procedure.
4. Duties
and Powers of the President.
a. The
President:
i.
Shall represent the state;
ii.
Shall sign and promulgate laws;
iii.
Shall appoint and dismiss
ambassadors and envoys, in accordance with State law;
iv.
Shall sign international
agreements in accordance with State law after ratification in the Parliamentary
Assembly;
v.
Shall confer decorations and
other recognitions in accordance with State law;
vi.
Shall accredit and receive
ambassadors and envoys, in accordance with State law;
vii.
Shall grant individual pardons
in accordance with State law;
viii.
May request convening of
sessions of the Council of Ministers and Parliamentary Assembly, and propose the
agenda for those sessions, and participate in all sessions;
ix.
Shall nominate a candidate for
President of the Council of Ministers, after consultation with the Vice
Presidents and the Parliamentary Assembly;
x.
Upon request, and at least once
a year, submits reports to the Parliamentary Assembly about the expenses of the
Presidency.
xi.
Performs other duties that may
be necessary for carrying out his/her duties or those assigned to him/her by
the Parliament, in accordance with the Constitution and law.
b) The
Presidency, which represents the unity of the state, shall, solely by consensus:
i.
Regulate the Defense of Bosnia
and Herzegovina, in accordance with State law;
ii.
Appoint judges of the
Constitutional Court, in accordance with the Constitution and State law;
iii.
Appoint the members of the
Board of Directors of the Central Bank of BiH.
c) Presidential Request for
Reconsideration of Legislation
i.
Within one week of the passage
of a law, the President may ask the Parliamentary Assembly to reconsider a law
or portions of a law;
ii.
The President must include the
reasons and arguments to explain why he or she has requested the Parliamentary
Assembly’s reconsideration;
iii.
The Parliamentary Assembly must
consider and answer the President’s arguments in writing;
iv.
The President may request
reconsideration only once per piece of legislation;
v.
The President shall be obliged
to sign the legislation as adopted by the Parliamentary Assembly.
5. Disability of the
President/Vice Presidents in performing duties
a.
In the case that the President
is temporarily unable to fulfill his or her duties, the President shall appoint
a Vice President to assume his or her duties.
b.
The President/Vice President
shall step down on the basis of disability if he or she is impaired to the
extent that he or she is unable to fulfill the duties of the position and will
not recover within a reasonable time.
c.
If it is unclear whether the
President / Vice President is able to fulfill his or her duties, the
Constitutional Court shall make such determination at the request of the
Council of Ministers, or 1/3 of the Members of the House of Representatives, or
the other two Members of the Presidency jointly.
6. Impeachment of the
President/Vice President
a.
The House of Representatives
shall have the power to impeach the President/Vice President.
b.
President/Vice President may be
impeached for incompetence and/or acts in violation of the Constitution, law,
or binding norms of the international law.
c.
The House of Representatives of
the Parliamentary Assembly of BiH may introduce a motion to impeach the
President/Vice President.
d.
If 2/3 of the Members of the House of Representatives of the
Parliamentary Assembly, which shall include minimum ½ of the members of the
people from which the President/Vice-president comes, he or she shall
immediately abdicate the office.
7. Resignation
of the President/Vice Presidents
a.
The President/Vice President
may submit his or her resignation.
8. Succession
The election of a new President/Vice-president, whose mandate has
ended in the manner enumerated in items 5, 6, or 7, shall be held within 15
days, in accordance with law.
9. Criminal Liability
of the President/Vice Presidents
a.
The President/Vice President
shall not be held criminally liable in domestic courts for acts performed
pursuant to and in accordance with his or her official duties during his or her
term of office.
b.
The Constitutional Court of
Bosnia and Herzegovina shall determine whether an act committed by the
President/Vice-president is pursuant to and in accordance with his or her
official duties.
With these provisions, the provisions of Article V, items 1. 2. and
3. of the current Constitution of Bosnia and Herzegovina are replaced.
Amendment IV
In the Constitution of
Bosnia and Herzegovina, Article V, item 4. shall be amended and shall
read:
Council of Ministers
The Council of Ministers of Bosnia and Herzegovina is the
institution of executive authority for the State of Bosnia and Herzegovina.
The Council of Ministers is accountable and responsible to the
citizens and peoples of Bosnia and Herzegovina through the Parliamentary
Assembly.
The President of the Council of Ministers, that is the Prime
Minister, and the Ministers shall together comprise the Council of Ministers. The President of the Council of Ministers,
that is the Prime Minister, shall chair the sessions of the Council of
Ministers.
1.
Election and Mandate
a.
The House of Representatives of
the Parliamentary Assembly shall elect the Council of Ministers at the
beginning of each new term of parliament.
b.
The structure of the Council of
Ministers shall be determined by the Parliamentary Assembly.
c.
The President of the Council of
Ministers/the Prime Minister may not assume power until the entire Council of
Ministers is confirmed.
d.
Once constituted, the Council
of Ministers shall select from its members two Deputy Prime Ministers.
e.
The President of the Council of
Ministers/the Prime Minister and the Deputy Prime Ministers may not come from
the same Constituent People.
2.
Election of the President of the Council of Ministers (Prime Minister)
a.
The President of Bosnia and
Herzegovina shall submit the candidate for the President of the Council of
Ministers/the Prime Minister to the House of Representatives for confirmation,
after consultations with political parties represented in the House of
Representatives of the Parliamentary Assembly.
b.
Should the candidate for the
President of the Council of Ministers/the Prime Minister fail to be confirmed,
the President shall resubmit the candidate or propose another candidate within
ten (10) days.
c.
If the candidate proposed by
the President fails to be confirmed on the second ballot, members of the House
of Representatives shall have the power to nominate candidates for the
President of the Council of Ministers/the Prime Minister. The support of at least 1/6 of the members of
the House of Representatives shall be required to nominate candidates for the
President of the Council of Ministers/the Prime Minister.
d.
In the third ballot, the vote
shall be taken on the President’s candidate whose confirmation failed in the
second ballot and the candidates nominated by House of Representatives. The
vote shall be taken on the President’s candidate first, and then in the order
in which they were nominated, on the candidates nominated by the House of
Representatives.
e.
The first candidate to receive
the necessary majority shall be confirmed as the President of the Council of
Ministers/the Prime Minister.
3. Election of Ministers
a.
The President of the Council of
Ministers/the Prime Minister shall, after confirmation, present a slate of
candidates for the Council of Ministers to the House of Representatives.
b.
Political parties that tend to
form the coalition shall offer a list of qualified candidates to the President
of the Council of Ministers/the Prime Minister to choose from.
c.
Should the proposed slate fail
to be confirmed by the House of Representatives, the President of the Council
of Ministers/the Prime Minister shall nominate a new slate. The process shall be repeated until the slate
receives the required majority.
d.
If the House of Representatives
cannot approve a slate of candidates within 30 days, the President of the
Council of Ministers/the Prime Minister shall lose his mandate and the House of
Representatives shall select a new President of the Council of Ministers/Prime
Minister in accordance with the Constitution.
e.
All Ministers shall take office
upon confirmation by the House of Representatives.
4.
Term of Office
Term of office for the Council of Ministers begins on the day they
are confirmed and ends on the day that a new Council of Ministers is confirmed.
5.
Competencies
The Council of Ministers shall:
a.
Defend the Constitution and
protect the constitutional rights and welfare of all citizens and peoples;
b.
Execute responsibilities of
Bosnia and Herzegovina;
c.
Ensure sovereignty and
territorial integrity, political independence and international subjectivity,
and internal and external security of the State of Bosnia and Herzegovina in
accordance with the Constitution and law;
d.
Conduct foreign policy of
Bosnia and Herzegovina;
e.
Execute and enforce acts of the
Parliamentary Assembly;
f.
Propose legislation to the
Parliamentary Assembly;
g.
Propose the budget to the
Parliamentary Assembly;
h.
Issue decrees and regulations
necessary to implement the law;
i.
Direct the work of the Council
of Ministers’ institutions;
j.
Ensure the efficient and
effective functioning of the State in accordance with the Constitution and law;
k.
Ensure that the State of Bosnia
and Herzegovina meets its domestic and international obligations in accordance with
the Constitution and law;
l.
Perform other duties assigned
by the Constitution and the law.
6. Powers
and Duties of the President
of the Council of Ministers/the Prime
Minister and Ministers
6.1.
Powers and duties of the
President of the Council of Ministers/the Prime Minister
a.
The President of the Council of
Ministers/the Prime Minister shall be a Minister without portfolio and shall be
responsible for the administration and efficient functioning of the Council of
Ministers.
b.
The President of the Council of
Ministers/the Prime Minister is jointly responsible with the Ministers for the
work of the Council of Ministers.
c.
The President of the Council of
Ministers/the Prime Minister shall:
1.
Establish the priorities,
agenda, and the general direction of the work of the Council of Ministers;
2.
Chair the sessions of the
Council of Ministers;
3.
Ensure the unity of the Council
of Ministers;
4.
Organize and direct the work of
the Council of Ministers;
5.
Report to the Parliamentary
Assembly on the work of the Council of Ministers.
d.
The President of the Council of
Ministers/the Prime Minister may suspend decrees and regulations issued by
Ministers under (6.2.(b.4)) if they do not facilitate effective administration
of the laws.
6.2.
Powers and duties of the Ministers
a.
Ministers act collectively as
the Council of Ministers and serve individually as the heads of their Ministries.
b.
Each Minister shall conduct the
affairs of his or her Ministry independently and on his or her own
responsibility, but shall be required to:
1.
Execute the policies of the
Council of Ministers and enforce the laws, regulations and acts of the Council
of Ministers within the scope of his or her Ministry, and as assigned by the
President of the Council of Ministers/the Prime Minister;
2.
Propose and make
recommendations concerning legislation within the scope of his or her Ministry;
3.
Direct, coordinate, and supervise
the activities of his or her Ministry;
4.
Issue regulations to facilitate
the implementation and administration of laws concerning his or her Ministry
and those affecting matters assigned to him or her by the President of the
Council of Ministers/the Prime Minister, subject to the Constitution and laws
of Bosnia and Herzegovina;
5.
Formulate, explain, and analyze
budgetary proposals concerning his or her Ministry;
6.
Respond to inquiries from the
Parliamentary Assembly concerning matters within his or her Ministry;
7.
Assist the President of the
Council of Ministers/the Prime Minister in executing and enforcing policies of
the Council of Ministers and laws.
7.
Additional Provisions.
a.
Composition, decision-making, resignation, recall, no-confidence vote and
other matters of concern pertinent to the functioning of the Council of
Ministers shall be regulated by law.
b.
Ministries and their competencies shall be determined by law.
With these provisions, the provisions of Article V, item 4.of the
current Constitution of Bosnia and Herzegovina are replaced, except for item
4.b) of this article.
PART II
Draft amendment submitted to the Presidency
Amendment
In the Constitution of Bosnia and Herzegovina, Article
II, paragraphs 1; 2; 3; and 4, shall be amended and shall read:
1.
General Provisions
a.
All citizens and peoples of Bosnia and Herzegovina are equal before law.
b.
Bosnia and Herzegovina is a
social state that guarantees civil and political rights; economic, social, and
cultural rights, ethnic/national?, and collective rights in accordance
with international and European standards.
c.
Fundamental rights and freedoms
guaranteed by this Constitution and the rights guaranteed by international
agreements and conventions to which Bosnia and Herzegovina is a signatory,
shall be secured to all in Bosnia and Herzegovina without discrimination on any
ground such as sex, age, race, skin color, language, religion, political or
other opinion, nationality, social origin, national minority, property, birth,
disability, or other status.
2.
Mandatory international human rights agreements and conventions
a.
Bosnia and Herzegovina
shall respect human rights in accordance with international agreements and
conventions of which it is a signatory.
b.
International agreements and
conventions which Bosnia and Herzegovina has
ratified are binding for the state and shall have priority over all other laws
and over this Constitution?, unless a law or this Constitution guarantees a
higher standard of rights than guaranteed by applicable agreements and
conventions.
c.
The State/Bosnia and Herzegovina? shall ensure all human rights in accordance, or to a higher
degree, with those rights guaranteed in all international agreements and
conventions to which it is a signatory.
d.
The rights and freedoms listed
in the European Convention for the Protection of Human Rights and Fundamental
Freedoms and in its Protocols shall directly be applied in Bosnia and Herzegovina and shall have priority over all other laws.
3.
Catalogue of rights and freedoms
Rights and freedoms guaranteed by the Constitution include, but are
not limited to:
3.1. Individual rights and
freedoms
a)
Fundamental rights and freedoms
All persons in Bosnia and Herzegovina shall be guaranteed the
following fundamental rights and freedoms, as well as those enumerated in
international agreements and conventions to which Bosnia and Herzegovina is a
signatory:
1.
The right to life;
2.
The right not to be subjected
to torture or to inhumane or to degrading treatment or punishment;
3.
The right not to be held in
slavery or servitude or to perform forced or compulsory labor;
4.
The right to liberty and
security of person;
5.
The right to private and family
life, home and privacy, and correspondence;
6.
The right to marry and to found
a family;
7.
The right to property;
8.
The right to education;
9.
The right to freedom of
movement and residence;
10.
The right to enjoy respect and
protection of personal dignity;
11.
The right to an environment
that is not detrimental to health and well-being;
12.
Freedom of thought, conscience,
and religion;
13.
Freedom of expression;
14.
Freedom of peaceful assembly
and freedom of association with others;
15.
Freedom from unreasonable
search and detention.
b)
Civil and political rights and
freedoms
All citizens of
Bosnia and Herzegovina shall be guaranteed the following civil and political
rights and freedoms:
1.
The right to effective legal
remedy should the rights guaranteed by this Constitution be violated;
2.
The right to appeal, including
the right to submit an objection, proposal, and appeals before state
authorities;
3.
The right to form and belong to
political parties;
4.
The right to participate in
public affairs;
5.
The right to equal access to
public services;
6.
Free, general, and equal voting
right at the age of 18;
7.
The right to information
necessary for the realization and protection of rights vested in the state or
other persons;
8.
The right to refuse to testify
if such testimony could instigate a criminal procedure against the person
testifying;
9.
The right to a fair trial in
civil and criminal cases and all other rights related to criminal procedure;
10.
The right to be considered
innocent for a criminal act until a binding court ruling determines guilt;
11.
No one shall be prosecuted for
an act, which is not regarded a criminal act under law at the time when the act
was committed.
12.
Detention may only last as long
as prescribed by law;
13.
A person who is on reasonable
grounds suspected of violating law may be arrested and detained only when this
is necessary for conducting criminal proceedings, or for the safety of people;
14.
Freedom of movement may be
limited by law only if this is necessary for conducting criminal proceedings,
or for the protection, safety, or health of people;
15.
Freedom of press and other
means of communication is guaranteed;
16.
Freedom of secrecy of
correspondence and all other communication is guaranteed;
17.
Everyone shall enjoy the right
to legal defense whenever the rights or legitimate interests of a person are
violated or endangered;
18.
The death penalty shall be
abolished.
c)
Economic, Social and Cultural
Rights and Freedoms
All persons in Bosnia and Herzegovina are guaranteed the following economic, social and cultural rights:
1.
All individuals shall freely
use the language of their choice and participate in cultural life.
2.
All individuals are entitled to
identify with the culture and ethnic group of their choice, however, no
individual may be forced to identify with any culture or ethnic group.
3.
All individuals shall freely
practice the religion of their choice.
4.
All individuals are entitled to
education, social care, health system and health care, nutrition and home.
5.
Each individual is free to
choose his/her profession and occupation, and all positions and duties will be
equally accessible to everyone, under the same conditions.
6.
Employment may be terminated
against the wish of an employee solely in the manner and under conditions
prescribed by law and collective contracts.
7.
Each employed individual is
entitled to compensation in compliance with law and collective contracts.
8.
The right to found trade unions
and organizations and activities that relate to trade unions, is guaranteed.
9.
Employed individuals are
entitled to fair and adequate working conditions.
10.
Employed individuals are
entitled to strike in compliance with the conditions and procedures prescribed
by law, as they are entitled to protect their collective, economic and social
interests.
11.
Individuals are entitled to
entrepreneurship and free competition in the economy.
12.
Freedom to scientific research
is guaranteed.
13.
Freedom of art is guaranteed.
4. Rights
of National Minorities
a.
There shall be no discrimination
against members of national minorities on the basis of their status of a member
of a national minority.
b.
National minorities in Bosnia and Herzegovina are guaranteed the right to cherish their cultural heritage, to
communicate in their language, to use their alphabet, to establish
associations, and to establish and maintain educational and cultural
institutions in compliance with law.
c.
National minorities are
entitled to learn their language and to use their minority language in official
communication, in compliance with law.
d.
The realization of the
aforementioned rights of national minorities must not cause discrimination
against other citizens.
5. Interpretation of Rights and Freedoms
a.
All provisions that relate to
human rights and freedoms contained in this Constitution shall be broadly
interpreted in such manner in which they promote the spirit, purpose and goal
of rights and freedoms enumerated in this Constitution, so that they support
the values that emphasize an open and democratic society based on human
dignity, equality and freedom.
b.
European and international laws
shall be taken into account even in cases when the enumerated rights and
freedoms are being interpreted.
c.
Future rights or freedoms
recognized or confirmed by civil law, customary law, and laws, must be in
compliance with the rights and freedoms enumerated in this Constitution (working
group is of the opinion that point c is redundant, taking into account Article
X, paragraph 2 of the Constitution).
6. Limitations to Human Rights and Basic
Freedoms Guaranteed by the Constitution
a.
Human rights and freedoms
guaranteed by this Constitution may be limited solely by? law to the
extent to which such limitation is reasonable and justifiable. Such limitations
shall take into account all important factors, including the following:
0. Nature of the right or freedom in question;
0. Importance of the very purpose of this
limitation;
0. Nature and scope of this limitation;
0. Relation between the limitation and its
purpose; and
0. Less restrictive means to fulfill the
purpose.
b.
No law may limit any basic
human right or freedom guaranteed by this Constitution, except in the manner
prescribed under point a. or any other provision of this Constitution.
7. The Ombudsman
a.
The ombudsman protects individual
and collective rights.
b.
The ombudsman exists at the
level of the State of Bosnia and Herzegovina and is regulated by law.
c.
The House of Representatives of
the Parliamentary Assembly shall select the ombudsman and his/her two deputies
in compliance with law.
8. Submission
of Complaints to the Constitutional Court that Relate to Protection of
Individual and Collective Rights???
a.
In case of violation of any of
the individual rights, or in case of immediate danger of violation? of any of
the rights of an individual, he/she is entitled to submit to the Constitutional Court a petition for instituting legal action for protection of the
rights guaranteed to him/her by this Constitution.
b.
The Constitutional Court shall decide on such petitions within sixty [60] days.
c.
Political parties, municipal
councils, city councils, civil society organizations and other legal entities
may also submit a petition for instituting legal action before the
Constitutional Court for the purpose of protecting the rights of individuals or
groups, or both, when those rights that belong to them on the basis of this
Constitution are violated, or when there is immediate danger of their
violation.
d.
The Ombudsman may submit a
petition as amicus curiae (friends of
the Court) in the cases prescribed in this section.
e.
Regulations for submitting
petitions for instituting legal action contained in this section are defined by
law.???
Previous paragraphs 5, 6, 7and 8 become paragraphs 9,
10, 11, and 12.
