Co-operation with Bosnia and Herzegovina has been a standing feature of the
Commission's activities.
Throughout the admission procedure, the Council of
Europe invited Bosnia and Herzegovina to bring its system and legal procedures
into conformity with the provisions in the European Convention on Human Rights.
In recent years, in fact, the Commission has produced several reports at the
request of the High Representative of the international community in Bosnia and
Herzegovina. Many topics were considered:
At the request of the High
Representative, the Commission has also examined the machinery for protecting
human rights in Bosnia and Herzegovina and has made a
Preliminary proposal for the
restructuring of Human Rights protection mechanisms in Bosnia and Herzegovina
after the transition period provided for in the Dayton agreement. The aim is to make the machinery more effective by
simplifying procedures and avoiding duplication. This would entail a merger of
the Human Rights Chamber and the Constitutional Court of Bosnia and Herzegovina
so that a single judicial authority at the highest level would be responsible
for protecting fundamental constitutional rights.
The Commission has also recommended establishing an ombudsman's office in
the Republika Srpska, recasting the Human Rights Ombudsman’s activities in
Bosnia and Herzegovina, and redefining his responsibilities to bring them into
line with the entities' ombudsmen.
On this basis, the Commission approved a
report on mediation institutions in
Bosnia and Herzegovina, which includes three draft laws on the Ombudspersons
of the state and the two entities. It then adopted an
opinion on reform of the judicial
system for the protection of human rights in the Federation of Bosnia and
Herzegovina, which gives practical form to the proposed constitutional
amendment abolishing the Court of Human Rights of the Federation. In 2000, it
approved conclusions regarding the reorganisation of human rights protection
machinery at state level in Bosnia and Herzegovina. In particular, it
recommended that the Chamber of Human Rights and the Constitutional Court should
merge once Bosnia and Herzegovina had ratified the European Convention on Human
Rights.
The Commission issued this opinion having regard to a possible sharing of
powers with the two entities. It expressed its views on the proposed legislation
of Bosnia and Herzegovina on immigration and asylum. Firstly, it found that
Bosnia and Herzegovina, and not its entities, had legislative, regulatory and
administrative jurisdiction in this area. Nevertheless, some delegation of
administrative powers to the entities was not excluded. The Commission also
commented that the draft legislation that had been submitted to it provided a
perfect illustration of the need for a federal court. It concluded by offering
its full support to the approach adopted by the draft legislation on immigration
and asylum on the sharing of responsibilities between Bosnia and Herzegovina and
its entities, subject to the need to include additional provisions relating to
the courts.
The main legal issue was whether Bosnia and Herzegovina had
the power to conclude international agreements in areas which, domestically,
were entity responsibilities. The Commission said that it did, but did not
specify the extent of the central state's jurisdiction since it was for the
organs of state of Bosnia and Herzegovina, in particular the Constitutional
Court, to rule on the subject. It observed that, with the agreement of Bosnia
and Herzegovina's Parliamentary Assembly, the entities could conclude
international agreements in their areas of responsibility. Consultation
machinery should be established to deal with this issue, and that of agreements
concluded by Bosnia and Herzegovina in areas falling within the entities'
domestic jurisdiction.
The Commission has also been closely involved in drawing up
the electoral law of Bosnia and Herzegovina since 1997. In 1998, the High
Representative put a number of questions to the Commission concerning the
interpretation of Bosnia and Herzegovina's constitutional law. In its reply, the
Commission concluded, on the basis of a methodical analysis of appendix III of
the Dayton agreement, that Bosnia and Herzegovina, rather than the entities, had
general responsibility for legislating on entity and municipal, as well as
national, elections. The Commission also considered whether there was a need to
establish a judicial institution in the State of Bosnia and Herzegovina in
addition to the Constitutional Court which already existed. In itself, it
decided, the absence of a supreme court in Bosnia and Herzegovina was not
unconstitutional. However, Bosnia and Herzegovina did have the authority to
establish specific courts at state level, and to deal with electoral and
administrative disputes such courts appeared to be required. The Commission has
also found that there can be no appeal against decisions of the Human Rights
Chamber to the Constitutional Court.
The law adopted was based on a text drawn up by one of the
Commission’s groups of experts.
For the most part the
Commission found the Election Law to be in accordance with European standards.
However, it considered that the provisions regulating elections to the
Presidency and the House of Peoples (the upper house of parliament) of Bosnia
and Herzegovina raised some questions in terms of their compatibility with
international standards. These issues should be addressed as part of the
commitments of this country following its possible accession to the Council of
Europe. It proposed that these questions be examined in future collaboration
with the Council of Europe, whilst emphasising that these discussions should not
disrupt the electoral timetable already laid down for Bosnia and Herzegovina.
This opinion was prepared at the request of the Council of Europe Parliamentary
Assembly, as an essential tool in defining the commitments to be undertaken by
Bosnia and Herzegovina following its possible accession to the Council of
Europe.
