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Strasbourg, 5 May 2008
Opinion
476/2008
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CDL(2008)048
Engl. only
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
draft AMENDMENTS
TO THE constitution
of REPUBLIKA
SRPSKA
The
translation of the amendments contained in this document is an unofficial
translation and
should be used for information purpose only.
A M E N
D M E N T S
to the
Constitution of the Republika Srpska
(CXXII -
CL)
Amendment
CXXII
In Article 3, new paragraph 2, shall
be added to read:
''The transfer of powers from the
Republika Srpska to the institutions of Bosnia and Herzegovina shall be carried
out under the procedure and method prescribed for the amending the Constitution
of the Republika Srpska ''.
This amendment amends the item 1 of
the Amendment LVI, which replaced the Article 3 of the Constitution.
Amendment
CXXIII
In Article 4, the words ''the Federal Republic of Yugoslavia and its member republics'' shall be replaced with the words ''the neighboring
countries the Republic of Serbia and Montenegro''.
This amendment shall amend Item 2 of
Amendment LVI, which replaced Article 4 of the Constitution.
Alternative to amendment CXXIII
In Article 4, the words ''the Federal Republic of Yugoslavia and its member republics'' shall be replaced with the words '' neighboring
countries''.
This amendment shall amend Item 2 of
Amendment LVI, which replaced Article 4 of the Constitution.
Amendment
CXXIV
In Article 9, the word ''Sarajevo'' shall be replaced with the words ''Banja Luka''.
This amendment shall
amend Article 9 of the Constitution.
Amendment
CXXV
In Article 10, after the words
''enjoy'', the words ''without discrimination''.
This amendment shall amend Article
10 of the Constitution.
Amendment
CXXVI
In Article 11,
paragraph 2 replaced with the Amendment V, shall be deleted.
This amendment shall repeal the said provision of the
Constitution.
Amendment
CXXVII
In Article 12, after
paragraph 2, new paragraph shall be added to read as follows:
''No
one shall be held in slavery or servitude .''
This amendment shall amend Article
12 of the Constitution.
Amendment CXXVIII
In Article 13, after the words
''inviolable'', a comma shall replace the full stop, and the following text
shall be added: ''except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
This amendment shall amend Article
13 of the Constitution.
Amendment CXXIX
In Article 15, after paragraph 1, new
paragraph shall be added to read:
''No one shall be deprived of his
liberty merely on the ground of inability to fulfill a contractual obligation.''
The current paragraph 2 shall become
paragraph 3 and other paragraphs shall be renumbered accordingly.
This amendment shall amend Article
15 of the Constitution.
Amendment CXXX
In Article 20, paragraph 2 shall
be amended to read as follows:
'' Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law ''.
This amendment shall amend paragraph
2 of Article 20 of the Constitution.
Amendment CXXXI
In Article 21, after paragraph 3,
new paragraphs shall be added to read:
''No one shall be
expelled, by means either of an individual or of a collective measure, from the
territory of the Republika Srpska of which he is a citizen .
No citizen of the Republika Srpska
shall be deprived of the right to enter the territory of the Republika
Srpska''.
This amendment shall amend Article
21 of the Constitution.
Amendment CXXXII
Article 25 shall be
amended by adding the following text after the full stop:
‘‘This right shall include freedom to
hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article
shall not prevent the public authorities from requiring the licensing of
broadcasting, television or cinema enterprises.
The
exercise of these freedoms may be subject to such conditions or restrictions as
are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or the rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.''
This amendment shall amend Article
25 of the Constitution.
Amendment CXXXIII
In Article 31, paragraph 2 shall be
amended to read as follows:
''Everyone has the right to
freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his
interests. No restrictions shall be
placed on the exercise of these rights other than such as are prescribed by law
and are necessary in a democratic society in the interests of national security
or public safety, for the prevention of disorder or crime, for the protection
of health or morals or for the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of
the public
administration .''
This amendment shall amend Article
31 of the Constitution.
Amendment CXXXIV
In Article 36, after paragraph 1,
new paragraphs shall be added to read as follows:
''Children shall enjoy human
rights without discrimination
of any kind and irrespective of the child's or his or her parent's or legal guardian's
race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.
The rights of the child
and their protection shall be regulated by law.''
The current paragraphs 2
and 3 shall become paragraphs 4 and 5 and other paragraphs shall be renumbered accordingly.
This amendment shall amend Article
36 of the Constitution.
Amendment CXXXV
In Article 50, the words ''enterprises and other
forms of organisation'' shall be replaced with the words ''economic operators''.
This amendment shall amend Article
50 of the Constitution.
Amendment CXXXVI
Article 54 shall be amended to read
as follows:
''Private and public property shall
be guaranteed.
Public property shall be the
ownership of the Republika Srpska (entity level) and of the local self-government.
All forms of ownership shall enjoy
equal legal protection.
Natural resources in the territory
of the Republika Srpska, assets for which it has been prescribed by law that
they are of general interest and immovable assets the authorities of the
Republika Srpska dispose of shall be the property of the Republika Srpska.
Among the items of the Republika’s property may also be other assets and
rights, in accordance with law.
Natural and legal persons may
acquire certain rights to certain assets in general use, under terms and
methods prescribed by law.
Natural resources shall be exploited
under terms and methods prescribed by law.“
This amendment shall amend Article
54 of the Constitution.
Amendment CXXXVII
Article
56 shall be amended to read:
'' Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the conditions
provided for by law.
The Republika Srpska
shall have the right to enforce such laws as it deems necessary to control the use of
property in accordance with the general interests or to secure the payment of taxes or other contributions or
penalties.''
This amendment shall amend Article
56 of the Constitution supplemented with Item 1 of the Amendment XXXI.
Amendment CXXXVIII
In Article 58, paragraph
1, the words ''socially owned'' shall be replaced with the word ''public'',
and in paragraph 2, the words ''Socially- or state-owned'' shall be replaced
with the word ''public''.
This amendment shall amend Article
58 of the Constitution supplemented with Item 2 of the Amendment XXXI.
Amendment CXXXIX
In Article 65, paragraph 1, the
words ''shall have'' shall be replaced with the words ''may have''
This amendment shall amend paragraph
1 of Article 65 of the Constitution.
Amendment CXL
In Article 87, paragraph
1, after the words ''in case of his resignation'', a comma shall be inserted
instead of word ''or'', and after the word ''recall'', a comma and the words ''disability
or death,'' shall be inserted.
After
paragraph 1, new paragraph shall be added to read as follows:
„The manner of
discharge of duties falling within the competence of the RS President in the
cases referred to in paragraph 1 of this Article, until the election of a new
RS President, shall be regulated by law.“
The current paragraph 2 shall become
paragraph 3.
This amendment shall amend Article
87 of the Constitution supplemented with Item 6 of the Amendment XL.
Amendment CXLI
The title of Chapter ''VI. Territorial
organization'' shall be supplemented with the words ''and local
self-government''
In Article 100, after the words
“territorial organization”, the words “and local self-government in the
Republika Srpska” shall be added, and word “uređuje” (regulated
– as the singular form of the verb in the local language) shall be replaced
by word “uređuju” (regulated – as the plural form of the verb in
the local language). (Translator’s remark: this change does not affect the
English translation, i.e. both words are translated with the same word
“regulated”).
This amendment shall amend Chapter VI. Territorial
organization and Article 100 of the Constitution.
Amendment CXLII
Article 101 deleted by Amendment
XXXII shall be amended to read as follows:
''The right to local self-government shall be
guaranteed to the citizens.
The citizens shall exercise the
right to local self-government in the units of the local self-government,
directly or through their freely elected representatives, in accordance with
law.''
This Amendment shall add the new
text to Article 101 of the Constitution, which was in its entirety deleted by
Amendment XXXII.
Amendment CXLIII
After the Article 101,
new Article 101.a) shall be added to read:
''The units of local self-government
are municipalities and cities.
The
cities in the Republika Srpska are Banja Luka and East Sarajevo and their statuses shall be regulated by law.
Other municipalities may also attain
the status of cities , as provided by law .''
This
Amendment, by adding the new Article, shall supplement Chapter VI. “Territorial
organization and local self-government” of the Constitution.
Amendment CXLIV
In
paragraph 1 of Article 102, the word “municipality” shall be replaced with
the words “unit of local self-government”, whereas after the item 7, new item 7a shall
be added to read as
follows:
“7.a) May establish the forms of local
self-government, in a settlement or a part of a settlement, as provided by law and the statute of the unit of local
self-government.”
Paragraphs
2 and 3 shall be deleted.
This amendment shall amend Article
102 of the Constitution.
Amendment CXLV
After Article 102, new
Article 102.a) shall be added to read:
''Article 102.a)
The unit of local self-government
shall have its property.
The bodies of the local
self-government unit shall manage the property of the local self government
unit, as provided by law.
This Amendment, by adding the new
Article 102.a), supplements the Chapter VI. of the Constitution titled “Territorial
organization and local self-government”.
Amendment CXLVI
After Article 102.a), new Article
102.b) shall be added to read to read as follows:
Article 102.b)
''In the discharge of tasks falling
under their competences, the bodies of the local self-government unit shall be
independent and shall only be subject to the control of constitutionality and
legality by the responsible government authorities ''.
(Note: Instead of
“government authorities” the author is using the term “drzavnih organa” which,
if translated verbatim, stands for “state authorities”)
This Amendment, by adding the new
Article 102.b), supplements the Chapter VI of the Constitution titled “Territorial
organization and local self-government”.
Amendment CXLVII
Article
103 shall be amended to read as follows:
''The local self-government unit shall
be entitled to its own incomes and it shall, as provided by law, freely dispose
of such incomes in the discharge of the tasks falling under its competences. It
shall also be entitled to the funds required for the discharge of the assigned
tasks, which funds shall be defined by law ''.
This amendment shall amend
Article103 of the Constitution.
Amendment CXLVIII
Article 108 shall be amended to read
as follows:
''Laws, statutes, and other
general enactments must be in conformity with the Constitution.
Statutes and other general
enactments must be in conformity with the law.''
This amendment shall amend Article
108 of the Constitution.
Amendment CXLIX
In Article 113 paragraph
4 shall be deleted.
Amendment CL
In paragraph 1 of Article 119, after
the word ''are'', the word ''final,'' shall be added.
This amendment shall amend Article 119 of the Constitution.
* * *
Reasoning
Given that the Constitution of
Republika Srpska does not regulate the procedure and authorization for the
transfer of powers from Republika Srpska to institutions of Bosnia and Herzegovina, supplement to Article 3 of the Constitution of Republika Srpska, Amendment
CXXII adds paragraph 2 which regulates the procedure for transfer of powers
from Republika Srpska to institutions of Bosnia and Herzegovina.
Right of Republika Srpska to
establish special parallel relations, on the basis of Constitution of Bosnia
and Herzegovina, is regulated by Article 4 of the Constitution of Republika
Srpska saying that such relations may be established with Federal Republic of Yugoslavia. Given that this provision is obsolete due to the state of
facts, amendments to this provision are foreseen by inserting the legal
successors: Republic of Serbia and Montenegro, i.e. neighboring states as this
right is defined in the said provision of Constitution of Bosnia and Herzegovina.
Amendment to Article 9 of the
Constitution of Republika Srpska pursuant to Amendment CXXIV, is proposed due
to the change in the state of facts considering that practically the capital
city of Republika Srpska is Banja Luka and not Sarajevo.
Supplement to Article 10 of the
Constitution of Republika Srpska, according to Amendment CXXV, is proposed in
order to meet the requirements under Article 14 of the European Convention on
Protection of Human Rights and Fundamental Freedoms prohibiting discrimination.
Paragraph 2 under Article 11 shall
be deleted in entirety by Amendment CXXVI because Article 1 of the ratified
Protocol 6 of the European Convention foresees abolishment of death penalty.
Existence of death penalty in the Constitution of Republika Srpska is not in
accordance with European Convention.
Amendment
CXXVII supplements Article 12 in terms of adding paragraph 3 in order to
harmonize this provision with Article 4 of European Convention prohibiting
slavery and forced labor.
Amendment
CXXVIII supplements Article 13 of the RS Constitution with the objective to
harmonize this Article with Article 8 of the European Convention which provides
guarantees for the right to privacy and family life, by stipulating that there
may not be interference by authorities with privacy of any person except in
specific cases as prescribed.
Article 15 of the RS Constitution
shall be supplemented by Amendment CXXIX, in accordance with Article 5 of the
European Convention which guarantees right to personal liberty and safety.
Under Article 20 of the Constitution
of Republika Srpska, paragraph 2 shall be changed and harmonized with Article
6, paragraph 2 of the European Convention pertaining to the right to a fair
trial by presumption of innocence until completion of the proceedings, until
all legal remedies are used.
Article 21 of the Constitution shall
be supplemented by adding new paragraphs 4 and 5 in the sense of the regulation
under Article 3 of Protocol 4 of the European Convention prohibiting expulsion
and deprivation of right to enter the territory of the State of his/her
citizenship.
Articles 25 and 31 of the
Constitution shall be changed in view of harmonization with Article 10 and 11
of the European Convention, which guarantee the freedom to hold opinion and
freedom to peaceful assembly.
Anticipated supplement to Article 36
of the Constitution is based on the provisions of the Convention on the rights
of the child.
Amendment CXXXV changes Article 50
of the Constitution since the concept of enterprises is surpassed in terms of
terminology but also the contents and shall be replaced with the words
''economic operators''.
Article 54 of the Constitution is
supplemented with definitions of private and public property and its
protection. Also, Constitution guarantees private and public property and its
equal protection.
Article 56 of the Constitution is
amended through Amendment CXXXVII that harmonizes this Article with Article 1,
paragraph 1 of the European Convention Protocol consisting guarantees to
peaceful enjoyment of property.
Amendment CXXVIII amends Article 58
of the Constitution supplemented with the item 2 of the Amendment XXXI. This
change is initiated because the relevant Article is entirely surpassed, i.e. it
is not adapted to practical property and economic relations.
In the Amendment CXXXIX, paragraph 1
under Article 65 is amended so the words ''shall have'' shall be replaced with
the words ''may have'' which adds relativity to this right.
Article 87 of the Constitution
supplemented with item 6 of the Amendment XL shall be supplemented with
Amendment CXL. This supplement was made because the practice has shown certain
deficiencies, i.e. it did not regulate potential situations.
Amendment CXLI supplements the Chapter
VI. Territorial Organization with the words “and the local
self-government” as well as Article 100 of the RS Constitution. In essence this
supplement was made so that units of local self-government can receive better
protection according to the principles set forth under European Charter on
Local Self-Government.
Article 101 deleted by Amendment
XXXII shall be amended by Amendment CXLII, where the new text is added because
the RS Constitution does not contain general principle concerning the rights of
citizens to local self-government under full capacity of the European Charter
on Local Self-Government.
Amendment CXLIII, by adding the new
Article, supplements the Chapter VI. Territorial Organization and Local
Self-Government of the Constitution, given that the issue of cities as units of
local self-government has not been regulated at all under the RS Constitution.
This issue has not been constitutionally defined and it is necessary to
regulate it.
Under Amendment CXLIV,
Article 102 of the Constitution has been edited in terms of vocabulary and
supplemented with regard to constitutional competencies of units of local
self-government to establish forms of local self-government (Local Communities)
on the basis of criteria that will be outlined in their Statutes.
Amendments CXLV and CXLVI introduce
new Articles 102a and 102b supplementing Chapter VI. Territorial
Organization and Local Self-Government of the Constitution. These provisions
supplement the Constitutions in the sense of European Charter on Local
Self-Government prescribing that municipalities or cities have their own
property and that they are independent in discharge of tasks falling under
their competencies, i.e. that central authorities cannot asses the
appropriateness of decisions adopted by local authorities.
Amendment
CXLVII changes the Article103 of the Constitution with the objective to
strengthen local self-government under the principles of European Charter on
Local Self-Government, for it provides that units of the local self-government
shall be financially autonomous guaranteed under Constitution.
Article 108 is amended through
Amendment CXLVIII for the reason that the text needed adjustments and more
precise wording.
Under Article 113, paragraph 4 is
deleted by Amendment CXLIX because this paragraph is contrary to provisions of
Article 6 of the European Convention, because it enables that the law may
exclude the right to initiate administrative proceedings, and the right to
access to court may not be excluded or denied.
Article 119, paragraph 1 of the
Constitution is supplemented under Amendment CXL with regard to court decisions
being final.
