C Explanatory
memorandum by Mr Çavuşoğlu and Mr Sasi, co-rapporteurs
1 Introduction
1. From 1 to 4 September 2009, we travelled to Bosnia
and Herzegovina to collect information about the state of implementation
of Parliamentary Assembly
Resolution
1626 (2008) on the honouring of obligations and commitments
by Bosnia and Herzegovina, adopted on 30 September 2008. In this
resolution, the Assembly took stock of the progress made by Bosnia
and Herzegovina in implementing its obligations and commitments, taken
upon accession in accordance with the Assembly in
Opinion No. 234 (2002),
and addressed a number of concrete recommendations to the authorities
in order to speed up reforms and fulfil the remaining undertakings.
2. We learned from our meetings with key stakeholders that, one
year ahead of the next parliamentary elections, foreseen for October
2010, very little progress has been made in the implementation of
the remaining commitments. Of particular concern is the lack of
progress on the constitutional reform front. As the Assembly noted
in its previous reports,
Note the constitutional reform
is required to improve the functioning of the country’s democratic
institutions, in order to implement reforms in various areas which
are not advancing as well as they should because of constant blockages
and obstructionism at the level of state institutions, as well as
in the entities.
3. In this context, we wrote in the information note about our
September 2009 visit to Bosnia and Herzegovina that we would follow
the situation in Bosnia and Herzegovina closely and propose to the Monitoring
Committee “any further measures to be taken, as the situation requires,
including a possible debate on the functioning of democratic institutions
in Bosnia and Herzegovina at the January 2010 part-session of the Assembly”.
Note
4. In the light of recent developments and taking into account
our proposal, the Bureau of the Assembly has included on the draft
agenda of the January 2010 Assembly part-session a debate on the
functioning of democratic institutions in Bosnia and Herzegovina.
Note
5. Specific in its nature and scope, the present reports aims
primarily at proposing concrete measures to be taken in order to
find a response to the challenges Bosnia and Herzegovina has to
face in implementing its remaining commitments towards the Council
of Europe. It thus contains an analysis of the state of advancement
of the constitutional reform, takes stock of the implementation
of a number of key reforms relating to democratic institutions,
as well as highlights a number of worrying political developments
which have occurred in the past six months.
6. In the preparation of this report, we used extensively the
opinions of the Venice Commission, as well as the reports by international
partners (especially, the European Commission’s progress report
for 2009 and the report by the High Representative to the UN Security
Council) and non-governmental organisations and think tanks. We
are also grateful to the Council of Europe Office in Sarajevo and
to the Special Representative of the Secretary General for the advice
and organisational assistance for the September 2009 visit.
2 Key Assembly
concerns and consequences of the lack of constitutional reform in
Bosnia and Herzegovina
7. Resolution
1626 (2008) can be considered a concrete and realistic
road map in the process of completing the remaining obligations
and commitments. It is therefore against the requirements of this resolution
that we will asses the functioning of Bosnia and Herzegovina’s institutions
in the present report. In this respect, constitutional reform is
one of the key Assembly demands.
8. In particular, in paragraph 8 of
Resolution 1626 (2008), the Assembly
called upon all political stakeholders to “re-launch dialogue about
the various reform proposals immediately after the October 2008 local
elections, in close co-operation with the European Commission for
Democracy through Law (Venice Commission), with a view to drafting
and adopting a new constitution before October 2010, as previously recommended
by the Assembly in
Resolution
1513 (2006)”. The latter resolution was adopted as a
result of an urgent debate on the functioning of democratic institutions,
held in April 2006 following the rejection by the Parliamentary
Assembly of Bosnia and Herzegovina by just two votes, of the so-called
“April package” of constitutional amendments. The “April package”
sought to bring the domestic constitutional and legal order of Bosnia
and Herzegovina into line with the European Convention on Human
Rights (ECHR) and improve the overall functioning of the institutions
of the state.
9. In the view of the Assembly, the constitutional reform should
address as a matter of priority two concrete issues:
- the entity voting system and
the excessively broad scope of the “vital national interests” clause
in the constitution, together with the related veto mechanism in
the House of Peoples of the Parliamentary Assembly of Bosnia and
Herzegovina, should be reviewed;
- the problem of the inability of Bosnia and Herzegovina
citizens, identifying themselves as belonging to the so-called group
of “Others”, to run for the election of the members of the presidency
of Bosnia and Herzegovina and participate in the designation of
delegates to the House of Peoples should be resolved.Note
10. Combined, these two problems prevent the members of the Parliamentary
Assembly of Bosnia and Herzegovina from acting as free and democratically
elected representatives of all citizens of the federation, making
them prisoners of the political majorities dominating in the entities,
as well as introduce inequality between the citizens of Bosnia and
Herzegovina with respect to the exercise of their rights to participate
in the political process, protected by the ECHR and its Protocol
No. 1 (right to free elections) and Protocol No. 12 (prohibition
of discrimination), as applied by the European Court of Human Rights
(the Court).
11. Moreover, in the view of the Assembly, “constitutional revision
is required in key reform areas where the distribution of competences
between the entities and the state needs to be changed”. “State
structures in key reform areas should be reinforced and not undermined.
Entity institutions, especially in the Federation of Bosnia and
Herzegovina, should be further reformed in a spirit of cost-effectiveness
and with the aim of ensuring coherent policy making and enforcement
of the legislation at all levels of public institutions”.
Note
12. The lack of the constitutional reform negatively affects the
functioning of democratic institutions at state (and, at times,
entity) level. It slows down reforms in other areas, which are necessary
for Bosnia and Herzegovina to move ahead along the path of European
integration (for example, reform of the judiciary, implementation
of the national war crime strategy, implementation of Annex 7 of
the Dayton Peace Agreements),
Note as
well as impedes the implementation by Bosnia and Herzegovina of
its commitments and obligations to the Council of Europe.
13. Insufficient progress in key reform areas was also acknowledged
by the European Commission. In its progress report for 2009, the
Commission concluded that very limited progress had been made in
addressing key reforms required for further approximation towards
the European Union.
Note
14. Poor performance in key reform areas has serious tangible
consequences for the citizens of Bosnia and Herzegovina: given the
country’s inadequate progress in fulfilling the requirements of
the visa liberalisation road map, the European Commission decided,
in July 2009, not to include Bosnia and Herzegovina in the list of
priority countries to benefit from a visa-free regime as of 19 December
2009.
Note It is true that, by October
2009, the authorities had managed to complete the implementation
of most of the requirements of the road map established by the Commission
and there is now hope that Bosnia and Herzegovina could be included
in the “second wave” of visa liberalisation for the Western Balkans.
15. However, the psychological effects of the delay, creating
among the citizens of Bosnia and Herzegovina the feeling of being
treated as citizens of a “second-class country”, have been very
damaging. Yet again, political manoeuvring of entity and party leaderships
have made it that the country is lagging behind its neighbours and
puts Bosnia and Herzegovina’s citizens in a disadvantaged position.
This is especially obvious because an important proportion of citizens
of Bosnia and Herzegovina have multiple citizenship and hold either
Croat or Serbian passports. Croatian citizens can already travel
freely to Europe and Serbian citizens will benefit from a visa-free
regime as of 19 December 2009; this creates a flagrant de facto
inequality between those citizens of Bosnia and Herzegovina who
have multiple citizenship and those who hold solely Bosnia and Herzegovina
passports.
16. It is against this background that we will analyse in the
following chapter the implementation by Bosnia and Herzegovina of
its obligations and commitments relating to the functioning of democratic
institutions since the adoption of
Resolution 1626 (2008). We will
also address the implementation of key related reforms in the areas
of the rule of law and the return of refugees and displaced persons.
3 State of implementation
of the commitments and obligations relating to the functioning of democratic
institutions
3.1 Constitutional
reform
17. Since the adoption of
Resolution 1626 (2008), two different
initiatives were launched to negotiate a constitutional reform in
Bosnia and Herzegovina. Unfortunately, both initiatives have yet
to produce concrete results.
3.1.1 The “Prud process”
18. This was a locally driven initiative of the leaders
of the three main political parties of Bosnia and Herzegovina, that
is, Mr Milorad Dodik (SNSD – Alliance of Independent Social Democrats),
Mr Sulejman Tihić (SDA – Party of Democratic Action) and Mr Dragan
Čović (HDZ BiH – Croatian Democratic Union of Bosnia and Herzegovina),
to launch a discussion about the prospects of a constitutional reform.
The “Prud process” was launched on 8 November 2008 and consisted
in a series of trilateral meetings devoted to various aspects of
the functioning of the state, including the constitutional reform.
It lasted, roughly, until March 2009, when the constitutional amendment
on the District of Brcko was adopted.
Note We have described the outcome of the “Prud process”
in the information note about our visit to Bosnia and Herzegovina
in September 2009.
Note
19. We would like, however, to stress that, although the “Prud
process” was a commendable initiative which led to the signing of
a number of political declarations, it has not brought concrete
results and does not seem to have helped to bring the positions
of the parties closer. At the time of our visit to Bosnia and Herzegovina
in September 2009, the positions of the leaders of the key political
parties appeared to be as polarised as ever. In the opinion of the
High Representative, not only did the domestic stakeholders fail
to build upon the success of the adoption, in March 2009, of the
first constitutional amendment on Brcko, but they also failed to
engage in a meaningful dialogue on constitutional reform.
Note This assessment strengthened
our impression that translating ideas around which agreement between
key domestic political stakeholders could be reached into concrete
proposals solely by local efforts was almost an impossible task.
In this context, the fact that in-depth consultations were engaged
between United States (US) and European Union (EU) experts and high
officials about the drafting of a new package of constitutional
reforms, drawing upon the expert opinions of the Venice Commission,
was, in our view, a promising initiative. Later, this initiative
became known as the “Butmir process”.
3.1.2 The “Butmir process”
20. On 9 October 2009, in an attempt to relaunch discussions
about concrete proposals of a constitutional reform, the EU and
United States’ high-level representatives, namely Swedish Foreign
Minister Carl Bildt, for the EU, and Deputy State Secretary Jim
Steinberg, for the US, together with the EU Enlargement Commissioner,
Olli Rehn, brought together the leaders of the key political parties
of Bosnia and Herzegovina at the EUFOR Butmir base. This was the
first joint EU- and US-led attempt since Dayton to discuss concrete proposals
for reforming the country’s structures. Despite initial plans to
hand over the proposed package on 9 October, the first negotiating
session was limited to one-to-one talks with the leaders of key
political parties. The “Butmir package” was handed over to the stakeholders
during the second session of talks, which was held on 20 and 21
October 2009.
21. The proposals for amendments, which were largely publicised
in the press, as well as in reports by authoritative international
non-governmental organisations and think tanks,
Note build upon the opinion of the Venice Commission
on the so-called 2006 “April package” constitutional amendments
Note as well
as on the opinion of the Venice Commission on the constitutional
situation in Bosnia and Herzegovina and the powers of the High Representative.
Note Also, following the so-called “package
approach”, the proposals for amendments were accompanied by two
declarations, dealing respectively with state and defence property.
This approach was clearly intended to set the basis for strengthening
state institutions in order to fulfil two of the essential conditions
for closing the Office of the High Representative, as established
by the Steering Board of the Peace Implementation Council.
Note
22. The proposed package of constitutional amendments envisaged
the constitutional confirmation of a number of responsibilities
exclusively exercised at state level (for example, defence, intelligence
and external security, establishment and regulation of a single
indirect taxation system), as well as the introduction of a set of
shared responsibilities between the state and the entities (in particular,
taxation, electoral process, judiciary, agriculture, science and
technology, environment and local self-government). In a similar
manner as the 2006 “April package”, the proposals for constitutional
amendments included an EU integration clause, according to which
responsibility for negotiating agreements with and undertaking commitments
to the EU would be the responsibility of the state (although the
entities would advise and consent in advance to such negotiations
and agreements) and the implementation of agreements and commitments
would be a shared responsibility between the state and the entities.
23. In terms of institutions, the proposed amendments would strengthen
the Parliamentary Assembly and modify its structure: the House of
Representatives would have 87 members (instead of the current 42)
and be responsible for legislative activity. The House of Peoples
would have 21 (instead of the current 15) members appointed from
among the members of the House of Representatives and would see
its role limited exclusively to deciding on issues of “vital national
interests”. The key novelty is that, out of 87 seats in the House
of Representatives, three seats would be “reserved” for representatives
who do not define themselves as members of the constituent peoples
(that is, those belonging to the group of “Others”). For the purposes
of nominating candidates to the presidency of Bosnia and Herzegovina,
these three representatives would be allowed to join the “ethnic”
caucuses in the House of Peoples, provided that no caucus has more
than eight members.
24. The proposed amendments would change the structure of the
presidency, which would be composed of one president and two vice-presidents
and be elected by the House of Representatives. The president and
the vice-presidents may not be members of the same constituent peoples.
The candidates for the presidency would be nominated by the House
of Peoples. The president’s and the presidency’s powers would be decreased
in favour of the Council of Ministers, which, according to the proposed
amendments, would be presided over by a real prime minister.
25. The proposed amendments do not touch the entity voting system
in the Parliamentary Assembly.
26. It appears that the proposed package of amendments is to a
large extent coherent and straightforward. The Venice Commission
was informally involved in the drafting. The proposed amendments
appear to resolve the problem of compatibility of Bosnia and Herzegovina’s
constitutional order with the requirements of the ECHR and of its
Protocols Nos. 1 and 12 relating to the right to free elections
and the prohibition of discrimination.
Note
27. We, therefore, believe that the adoption of the proposed package
of constitutional amendments would constitute an adequate response
to the Assembly recommendations, in that it would strengthen the
state institutions, bring Bosnia and Herzegovina’s legal framework
closer to European standards and enable the country to hold the
forthcoming parliamentary elections, foreseen for October 2010,
according to rules which are in line with the standards of the ECHR.
28. After the initial negotiations on 20 and 21 October 2009,
the proposed constitutional amendments failed to generate agreement
between the key domestic political stakeholders. The “Butmir process”
thus became open-ended and negotiations on the proposed reform package
continued.
29. Following a new round of talks and negotiations, an amended
“Butmir package” of proposals was handed over to the leaders of
the key political parties on 24 November 2009. The leaders of major
political parties were given the deadline of the end of 2009 to
reach an agreement on the revised proposal.
30. Reportedly, with the exception of the Party of Democratic
Action (SDA), all other major parties rejected the revised “Butmir
package”. The Social Democratic Party (SDP) and the Party for Bosnia
and Herzegovina (SBiH) have openly declared that the revised package
is unacceptable to them. Reportedly, the leader of the SDP, Zlatko
Lagumdžija, stated that “the offered package does not envisage establishment
of more efficiently functioning institutions of the State of BiH,
and it also introduces some new ambiguous proposals which can only
lead to different, if not opposite, interpretations”. The legal
adviser to the Bosniac member of the presidency of Bosnia and Herzegovina
(leader of the SBiH, Haris Silajdžić) was quoted saying that “the
offered package was far below the minimum acceptable” for his party.
Note The Executive Secretary of
the SNSD (Alliance of Independent Social Democrats) was quoted as
saying that the “Butmir process” had failed because the amendments
aimed at building a “centralised, unitary state”.
Note
31. We have no detailed and official information about the revised
package of constitutional amendments and, therefore, we cannot take
position on them. We wish to stress, however, that, in our opinion,
any proposals which would not be endorsed by the Venice Commission
and/or open the room for ambiguous interpretations would be a “bad
compromise”. The “Butmir process” is the third attempt to implement
a badly needed constitutional reform in Bosnia and Herzegovina.
Therefore, it has no right to fail.
32. We call upon all domestic and international stakeholders to
continue meaningful negotiations with a view to reaching agreement
on a comprehensive package of reform proposals. A “piece-meal approach”
based on short-term compromises is not going to resolve the challenges
Bosnia and Herzegovina has to face. Moreover, it may undermine the
credibility of the whole reform process and produce diverging and
misleading interpretations of the proposals tabled. With the campaign
for the 2010 parliamentary elections starting, this scenario should
be avoided at all costs.
33. With this in mind, we hope that the key stakeholders, with
the advice of the international partners, will be able to reach
an agreement on a comprehensive reform package within the set deadline.
We have to stress that time is of the essence. If the 2010 parliamentary
elections are to be held according to rules which comply with the
standards of the ECHR, the constitutional reform has to be implemented
now, to leave enough time for adopting the necessary amendments
to the electoral legislation. We urge all parties involved to intensify efforts
in order to reach an agreement.
3.2 Other related reforms
3.2.1 Reform of the ombudsperson’s
office
34. In
Resolution
1626 (2008), the Assembly called upon the authorities
of Bosnia and Herzegovina to “complete promptly the procedure of
appointment of the three state ombudspersons” in order to comply
with one of the key outstanding accession commitments.
Note
35. The three ombudspersons were appointed by the Parliamentary
Assembly on 4 December 2008 (in the meantime, since December 2008,
one of the three ombudspersons resigned but a replacement was elected on
1 October 2009). However, their office has yet to become fully operational.
36. In fact, the law on the ombudsperson’s institution has not
been fully implemented because ombudspersons continue to operate
at entity level. According to the law, the entity ombudspersons
were required to cease to exist within one month of the adoption
of the law. The Parliament of the Federation of Bosnia and Herzegovina
adopted a law in 2007 on provisional measures for disbanding the
federation ombudsperson’s office, but the federation office continues
to operate because its closure was made conditional on the cessation
of the activities of the ombudsperson’s office in the Republika
Srpska. The Republika Srpska (RS), for its part, has not yet adopted
the law on the cessation of activities of the RS ombudsperson.
37. We raised the issue of the adoption of this law with RS Prime
Minister Milorad Dodik and the Speaker of the RS National Assembly,
Igor Radojičić, during our visit to Bosnia and Herzegovina in September
2009. Prime Minister Dodik explained to us that the RS Government
had prepared and tabled the relevant draft law and, therefore, has
completed its obligations. According to the RS Prime Minister, the
adoption of the law was now in the hands of the RS National Assembly
whose members questioned the constitutionality and legality of disbanding
the RS ombudsperson’s office.
38. We do not find this explanation acceptable. The creation of
a unified ombudsperson institution at the level of the State of
Bosnia and Herzegovina is expressly provided for in a state law
adopted by the Parliamentary Assembly, with the MPs coming from
both entities voting in favour of it. Therefore, this law has to
be implemented by the entities. Moreover, the creation of a unified
ombudsperson institution is an express international commitment
of Bosnia and Herzegovina, as established in Assembly
Opinion No. 234 (2002) and voluntarily
accepted by Bosnia and Herzegovina.
39. We therefore call upon the National Assembly of Republika
Srpska to adopt without further delay the law on the cessation of
activities of the RS ombudsperson’s office, in order to complete
the establishment of a single ombudsperson’s office at state level.
3.2.2 Local government
reform in the Federation of Bosnia and Herzegovina and in the Republika
Srpska
40. In
Resolution
1626 (2008), the Assembly called upon the authorities
of Bosnia and Herzegovina to “implement a comprehensive local government
reform, with a view to harmonising local government legislation at
entity level and, in the Federation of Bosnia and Herzegovina, between
the different cantons, with a view to effectively devolving sectoral
competences to local authorities, strengthening fiscal decentralisation,
building up the capacity of local authorities and promoting cross-entity
inter-municipal co-operation”.
41. Regrettably, no steps have been taken by the authorities to
implement this recommendation and the competences and resources
of municipalities in the Federation of Bosnia and Herzegovina as
well as in the Republika Srpska remain weak. This problem is especially
serious in the Federation of Bosnia and Herzegovina where local
government is formally a competence of the cantons, although a law
on the principles of local self-government was adopted in 2006 at
the federation level. The implementation of this law has yet to be
completed because sectoral reforms have to be co-ordinated between
the responsible ministries of 10 cantons, responsible for harmonising
cantonal legislation with the federation law establishing basic
principles. The department of the federation ministry of justice
responsible for local government has insufficient capacity to co-ordinate
this process effectively.
42. We reiterate our opinion expressed in our previous report
on the honouring of obligations and commitments by Bosnia an Herzegovina:
the efficient functioning of local self-government in Bosnia and Herzegovina
would require, in the medium term, a degree of harmonisation of
the basic and sectoral legislation of the Republika Srpska, the
Federation of Bosnia and Herzegovina as well as the cantons, in
order to establish the basis for cross entity co-operation between
municipalities in service provision. Such harmonisation would, of
course, be easier to implement within the framework of a wide constitutional
reform at the level of the state.
3.2.3 Reforms relating
to the rule of law
43. Three key issues have to be addressed under this
section: a. the implementation
of the National War Crimes Strategy; b.
the implementation of the National Judicial Sector Reform Strategy;
as well as c. the extension
of the mandate of the international judges and prosecutors. Regrettably,
very little progress can be reported on these three issues.
44. The implementation of the National War Crimes Strategy, adopted
at the end of 2008, is lagging behind. Although the Supervisory
Board of the strategy has been set up according to the envisaged
timetable, the strategy has yet to produce concrete results. So
far, the only visible result of the implementation of the strategy has
been the adoption by the Council of Ministers of the necessary amendments
to the Criminal Procedure Code. The Parliamentary Assembly has yet
to enact them. The central database bringing together information about
war crimes has not been compiled yet. In the absence of this essential
element, the implementation of the strategy appears to be difficult,
if not almost impossible.
45. The National Judicial Sector Reform Strategy is performing
poorly. Although the technical secretariat of the strategy is now
in place, the implementation of the planned activities is lagging
behind. According to an assessment made by the second national inter-ministerial
conference in May 2009, between 40% and 50% of planned projects
have registered no progress at all. The implementation rates of
the activities averaged less than 20% over the previous months.
A third inter-ministerial conference is scheduled to be held in
December 2009.
46. The imminent departure of international judges and prosecutors
working in the war crimes as well as in the organised crime and
corruption chambers of the State Court and Bosnia and Herzegovina’s
prosecutor’s office is a serious concern. The President of the State
Court and the Chief Prosecutor of Bosnia and Herzegovina requested
earlier this year the extension of the mandate of international
judges and prosecutors beyond December 2009, in order to complete
ongoing trials.
47. On 23 July 2009, the Council of Ministers adopted an amendment
which aims at extending the term of office of international judges
and prosecutors working on war crimes cases only. The Constitutional
and Legal Affairs Committee of the House of Representatives approved
additional amendments which aim at extending the term of office
of both judges and prosecutors working on war crimes and on economic
crime and corruption. However, the delegates to the House of Peoples
from the Republika Srpska blocked the adoption of the proposal tabled
by the Council of Ministers, thus making its adoption as well as
the adoption of the additional amendments proposed by the Constitutional
and Legal Affairs Committee impossible.
48. The refusal of the RS delegates to approve the proposal on
the extension of mandates of international judges and prosecutors
puts the State Court of Bosnia and Herzegovina and the chief prosecutor’s
office in an extremely difficult situation. In fact, the House of
Representatives did not approve additional funding for 2010 to hire
national judges and prosecutors to replace the international judges
and prosecutors. Therefore, the work of the State Court and of the
chief prosecutor’s office in 2010 will be seriously hampered. Moreover,
according to domestic legislation, in case of changes in the three-judge
trial chambers hearing war crimes cases, a new composition of the
chamber has to be appointed and the trial should start anew. In
practice, this means that delays in completing war crimes trials
will become quite substantial. Ultimately, this will undermine the implementation
of the closure strategy of the International Criminal Tribunal for
the former Yugoslavia (ICTY), which aims at referring war crimes
cases to national courts for trial.
49. Given the failure of the national authorities to address this
problem, the High Representative had no other choice than to use
the Bonn Powers and adopt, on 14 December 2009, a decision extending
until 31 December 2012 the mandate of international judges and prosecutors
working in the war crimes chambers of the State Court and of the
chief prosecutor’s office. The presence of judges and prosecutors
working on organised crime and corruption cases was also prolonged.
However, they will not exercise judicial powers any more and will
stay in Bosnia and Herzegovina in an advisory capacity. The national
authorities are obliged to provide for the replacement of international
judges and prosecutors as from 1 January 2013. This decision was unanimously
supported by the Steering Board of the Peace Implementation Council.
While welcoming the extension of the mandate of international judges
and prosecutors working on war crimes cases, we regret that the
national authorities failed, yet again, to assume their responsibilities,
thus obliging the High Representative to impose appropriate decisions
using the Bonn Powers. We urge the authorities to comply with the
High Representative’s decision and secure the necessary funding
as well as train appropriate staff in order to hire, in 2013, national
judges and prosecutors to replace international officials. At the
same time, we urge the national judges and prosecutors to make full
use of the expertise and experience of their former international colleagues
who had worked on organised crime and corruption cases, with a view
to ensuring continuity of the ongoing investigations and trials.
3.2.4 Implementation
of the Brcko Final Award
50. Although the constitutional amendment on the District
of Brcko was adopted in March 2009, following negotiations within
the framework of the “Prud process”, the international Supervisor
of Brcko is still not in a position to inform the Arbitral Tribunal
of the completion of the Brcko Final Award.
51. In June 2009, the Supervisor of Brcko informed the Steering
Board of the Peace Implementation Council that district institutions
“function effectively and apparently permanently”, and recommended
termination of supervision at the November meeting of the Steering
Board of the Peace Implementation Council, provided that the entities
and state fulfilled their remaining obligations towards Brcko by
15 September. These remaining obligations were: settlement of mutual
debts; the creation of the possibility for district residents to
choose, declare and change their entity citizenship; the district’s
inclusion in the legal regulatory framework of the Bosnia and Herzegovina
electricity market; and provision to the district of succession
funds from the Socialist Federal Republic of Yugoslavia.
52. In order to assist the entity authorities to deal with these
complex and rather technical matters, the Office of the High Representative
prepared specific amendments which were shared with the Chair of
the Council of Ministers of Bosnia and Herzegovina, the entity prime
ministers and the Mayor of Brcko in July 2009. However, according
to the High Representative, the stakeholders did not take any action
to deal with their remaining obligations before the set deadline
(that is, 15 September).
Note In
this context, the High Representative resorted to his executive
powers and enacted the relevant legislation on 18 September 2009.
53. The state authorities and the entities are obliged by law
to publish the legislation enacted by the High Representative in
their official gazettes, in order to put it into effect. The authorities
of the state, of the Federation of Bosnia and Herzegovina and of
the District of Brcko complied with their obligations and published the
relevant legislation. The authorities of the Republika Srpska, for
their part, publicly rejected the decision of the High Representative
and refused to publish it in the RS official gazette. The Government
and National Assembly of the Republika Srpska justified their inaction
by the fact that, in their opinion, the High Representative has
no authority to impose legislation under the Dayton Agreements.
In our opinion, this constitutes a direct defiance of the so-called
“Bonn Powers”, which were conferred on the High Representative by
the Peace Implementation Council meeting in Bonn, in December 1997,
in accordance with Annex 10 of the Dayton Peace Agreements.
Note
54. Consequently, as a result of the failure by Republika Srpska
to fulfil its legal obligations, the Supervisor of Brcko was not
in a position to recommend the closure of supervision at the meeting
of the Steering Board of the Peace Implementation Council held on
18 and 19 November 2009. The supervisor has reserved the right to
refer the matter of non-compliance by the Republika Srpska with
the Final Award to the Arbitral Tribunal.
3.2.5 Implementation
of Annex 7 to the Dayton Peace Agreements
55. No substantial progress in the implementation of
Annex 7 to the Dayton Peace Agreements has been achieved since our
last report on the honouring of obligations and commitments by Bosnia
and Herzegovina of September 2008. At present, there are still 120 000
displaced persons registered inside Bosnia and Herzegovina, of which
over 7 000 live in squalid conditions in collective centres.
56. On 30 January 2009, the Council of Ministers adopted the Revised
Strategy for the Implementation of Annex 7 of the Dayton Peace Agreements.
The strategy was adopted by the House of Representatives in May 2009.
The strategy contains specific action plans and provides an opportunity
to renew efforts to resolve the problem of displaced persons. However,
on 6 June 2009, the Serb caucus in the House of Peoples rejected the
strategy, which was sent back to the Ministry of Human Rights and
Refugees for revision.
3.2.6 Organisation of
a nationwide population census
57. We are seriously concerned by the blockage of the
adoption of the Revised Strategy for the Implementation of Annex
7 of the Dayton Peace Agreements, not only because it prevents the
effective return of displaced persons, but also because it puts
at risk the organisation of the population census in Bosnia and Herzegovina
in 2011. The organisation of the population census is one of the
key Assembly demands.
Note Data about the distribution
of the population are important because they are used to ensure
proportional distribution of jobs and positions according to ethnic
criteria. So far, in accordance with the Dayton Peace Agreements,
the data from the 1991 census are being used for this purpose, in
order to avoid the “freezing” of the results of the movements of
the population which occurred during the war (including as a result
of “ethnic cleansing”) and give an effective possibility to all
displaced persons to return to their pre-war place of residence.
In this context, the implementation of a new census should proceed
in parallel with the implementation of Annex 7 of the Dayton Peace
Agreements.
58. Earlier during the year, within the framework of the “Prud
process”, agreement was reached between the key stakeholders on
the organisation of the census, which would include questions related
to the ethnic and religious background as well as to the language
spoken by the respondents. According to this agreement, data from
the 2011 census would be used for the purposes of ensuring proportional
representation of ethnic groups in the distribution of jobs only
as from 2014. In the meantime, efforts to ensure the implementation
of Annex 7 would continue. In the present context, the Serb veto
on the Revised Strategy for the Implementation of Annex 7 leaves
no other choice for the Bosniac parties than block the adoption
of the law on the census.
59. If this deadlock is not resolved in the coming months and
since a pilot census should be implemented in April 2010, Bosnia
and Herzegovina will not be in a position to conduct a nationwide
census in 2011. We, therefore, urge the key stakeholders to resume
meaningful and constructive negotiations with a view to adopting
the law on the census at the earliest opportunity.
4 Escalation of political
tensions and inflammatory rhetoric
60. We have to note that, since the adoption of our last
report on the honouring of obligations and commitments by Bosnia
and Herzegovina in September 2008, not only did the authorities
of Bosnia and Herzegovina fail to accelerate the implementation
of the remaining commitments and obligations, but also the political
tensions and divisive rhetoric continued and, at times, intensified.
The state institutions are still unable to find an agreement on
the appointment of candidates to key positions. Moreover, we are
particularly concerned by the fact that the authorities of the Republika
Srpska have challenged the constitutional and legal order of Bosnia
and Herzegovina, as well as the Dayton Peace Agreements. The situation
in the Federation of Bosnia and Herzegovina also remains tense and
the normal functioning of institutions continues to be hampered
by disagreements along ethnic lines. Of particular concern is the
situation in Mostar, where the city council has so far failed to
elect a mayor, more than one year after the local elections of October
2008.
4.1 Appointments to
key positions at the level of the State of Bosnia and Herzegovina
61. We note that, for several months, the Council of
Ministers has been unable to reach an agreement on the appointment
of candidates to key positions at state level. In fact, this summer,
the Council of Ministers was supposed to appoint the directors of
three key state institutions: the Directorate for European Integration,
the Indirect Taxation Authority and the Communications Regulatory
Agency. The Bosniac members of the Council of Ministers claimed
that Bosniac representatives were under-represented in key positions
in public administration at state level. In response to their statement,
the Chair of the Council of Ministers (Mr Nikola Špirić, who is
a Serb), with the support from the main board of his political party
(the Alliance of Independent Social Democrats), blocked the appointment
of a Bosniac candidate supported by the Party of Democratic Action
to the position of state minister for security.
62. We also note that, contrary to previous Assembly recommendations,
Note the
authorities of Bosnia and Herzegovina have not yet appointed the
country’s representatives and members in several Council of Europe monitoring
and consultative bodies, in particular, in the European Committee
for the Prevention of Torture and Inhuman and Degrading Treatment
or Punishment (CPT), the Advisory Committee of the Framework Convention
for the Protection of National Minorities, the European Commission
against Racism and Intolerance (ECRI), as well as the Venice Commission.
This situation has lasted for too long and we call upon the authorities
to proceed with the nomination of Bosnia and Herzegovina’s members
and representatives to these bodies, as a matter of urgency.
4.2 The situation in
the Republika Srpska
63. On 14 May 2009, the National Assembly of the Republika
Srpska adopted conclusions that called into question the constitutional
basis and legality of state competences which were considered by
the Government of the Republika Srpska and the National Assembly
as “transferred” from the Republika Srpska to the state institutions
of Bosnia and Herzegovina. In these conclusions, the National Assembly
suggested initiating lawsuits challenging the constitutionality
of such transfers before domestic and international courts. According to
the National Assembly, only three of the 68 “transferred” competences
were not “stolen”, seized or surrendered under false pretences,
usually as a result of alleged intervention by the High Representative.
In reality, a number of the allegedly “illegally transferred competences”
are expressly listed in the constitution established by the Dayton
Peace Agreements (for example, matters related to immigration and
asylum, import and export of arms, and international and inter-entity
criminal law enforcement). Other competences listed by the RS National
Assembly have already been challenged before the Constitutional
Court, which has supported their exercise by state institutions.
64. On 25 May 2009, the High Representative wrote a letter to
the Speaker of the RS National Assembly requesting to nullify these
conclusions by 11 June 2009. He considered that “the conclusions
undermined the division of responsibilities between the state and
entities established by the Dayton Constitution and subsequent decisions
of the Bosnia and Herzegovina Constitutional Court.” They were also
“misleading, erroneous and therefore unacceptable”.
Note As the RS
National Assembly did not nullify its conclusions by 11 June, the
High Representative had no choice but to repeal them on 20 June
2009, using the “Bonn Powers”. In reaction to the decision of the
High Representative, the Government of the Republika Srpska issued
on the same day a communiqué protesting against this decision as
an assault on democratic principles and freedoms, as well as “yet
another proof” that the Office of the High Representative had “lost
any reason to exist”.
65. The adoption of the conclusions from 14 May 2009 on the challenging
of the exercise by the state of a number of competences was just
the first step by the RS authorities in challenging the constitutional
and legal order of Bosnia and Herzegovina. As mentioned earlier
(see paragraph 50), the Government of the Republika Srpska and the
National Assembly refused to publish the decisions adopted by the
High Representative on 18 September on the enactment of the legislation
necessary to fulfil the requirements of the Brcko Final Award.
66. Moreover, on 24 September 2009, the RS Government issued a
new set of conclusions challenging the legality of the “Bonn Powers”
of the High Representative. On 1 October 2009, the RS National Assembly declared
all decisions by the High Representative null and void, illegal
and a violation of the Dayton Peace Agreements. It is worth noting
that only the members of the RS governing coalition voted in favour
of these conclusions. The RS National Assembly mandated lawsuits
against all High Representatives but did not instruct further immediate
action. Later on, it did pass new conclusions threatening to organise
a referendum on the High Representative’s decisions, as well as
a walk-out by RS representatives from state institutions, should
the High Representative use his executive powers again in the future.
To our knowledge, no steps have been taken so far to challenge the
decisions adopted by the High Representatives in courts of law.
67. The ongoing conflict over the legal status of the Bosnia and
Herzegovina electricity transmission company Elektroprijenos/Elektroprenos
has heated up the confrontation between the RS authorities and the High
Representative. This public company, jointly owned by both entities
as shareholders, is responsible for electricity transmission on
the whole territory of Bosnia and Herzegovina. Reportedly, the High
Representative learned of a plan by the Republika Srpska to dismantle
Elektroprijenos/Elektroprenos and create a separate RS electricity
transmission company. This plan was to enter into effect on 19 September,
upon the expiration of the mandate of the general manager. Not only
would such action be illegal, but it would place at risk all electricity
transmission inside Bosnia and Herzegovina, and could potentially
destabilise regional electricity supplies. Due to the ongoing RS
boycott of the governing board, no steps were taken to replace the
general manager. Given the threat to the electricity transmission
system reform, to the continuity of the business operations of Elektroprijenos/Elektroprenos
in accordance with the relevant legislation and, most of all, the public
interest, the High Representative issued a decision on 18 September
2009, which reaffirmed the principle of continuity of function under
which the mandate of the general manager of Elektroprijenos/Elektroprenos
continues until a replacement is appointed, except if otherwise
provided by law.
68. The authorities of the RS and, in particular, its prime minister,
vigorously protested against the decision of the High Representative
and, later on, formally challenged it, addressing, on 2 October,
the Management Board of Elektroprijenos/Elektroprenos to demand
that all its activities be ended. Reportedly, the RS Energy Minister
publicly warned the Management Board that any decision taken by
the board without the participation of its RS members would trigger
the adoption of the so-called “Special Conditions for Electricity
Transmission in the RS”, which would delegate all responsibilities
of Elektroprijenos/Elektroprenos to its Banja Luka, Sarajevo and
Mostar operational centres (three out of four), thus de facto instructing
them to act as independent electricity transmission companies whose
areas of responsibility do not cross the inter-entity boundary line.
69. However, on 6 November 2009, the prime ministers of the Republika
Srpska and of the Federation of Bosnia and Herzegovina agreed to
a five-point declaration with the aim of making Elektroprijenos/Elektroprenos
and its bodies operational. Reportedly, none of the points agreed
in the declaration have yet been implemented.
70. The consequences of the conflict over Elektroprijenos/Elektroprenos
were serious and led to approximately 20 failures of the electricity
transmission grid between 25 September and 15 October. Sarajevo was
among those affected. Most of the city’s neighbourhoods – including
hospitals – were subject to power blackouts. Electricity failures
were also registered in other parts of the federation, as well as
in the Republika Srpska.
71. Of particular concern are also statements recently made by
the Prime Minister of Republika Srpska concerning wartime atrocities.
On 11 September 2009, he claimed that evidence existed that Bosniacs
had staged the massacres in the Markale Market in Sarajevo in February
1994 and August 1995, as well as in Tuzla in May 1995. While similar
statements have been previously made by RS politicians about the
Markale Market massacre, comments relating to the Tuzla Kapija massacre,
in which more than 70 mostly young people were killed, represents
a new departure. In all three cases, the ICTY as well as the War
Crimes Chamber of the Bosnia and Herzegovina Court have confirmed
convictions of Serbs as being responsible.
72. We strongly condemn these statements as unacceptable and irresponsible.
In our opinion, they are in direct defiance of our previous calls
to Bosnia and Herzegovina’s politicians to refrain from inflammatory rhetoric.
4.3 The situation in
the Federation of Bosnia and Herzegovina
73. Since our last report, the situation in the Federation
of Bosnia and Herzegovina remains difficult. At the end of May 2009,
the federation prime minister, Nedžad Branković, who is facing criminal
charges for abuse of office in the late 1990s, resigned under pressure
from his political party (SDA – Party of Democratic Action). The
federation finance minister, Vjekoslav Bevanda, assumed most of
the responsibilities pending the appointment of a new prime minister.
The federation government faced a major challenge in rebalancing
the 2009 budget and fulfilling the conditions set by the International
Monetary Fund in order to receive its share of the €1.2 billion
three-year standby arrangement negotiated on 5 May 2009. Strikes,
hunger strikes, road and border blockades and threats of demonstrations
by trade unionists, war veterans and farmers multiplied and culminated,
on 18 June, in a major demonstration of some 7 000 war veterans,
civilian war victims and non-war invalids in front of the federation
government building in Sarajevo. In response, the caretaker government promised
to remove the planned 10% cut in benefits.
74. The federation House of Representatives appointed a new prime
minister on 25 June 2009. The new prime minister tried to maintain
the implementation of the entity’s commitments to the IMF, but also
faced demonstrations as well as a number of disputes with Croat
ministers frustrated over being outvoted in government sessions.
A new crisis in the federation government emerged on 27 August,
when four Croat ministers announced that they would take no further
part in the work of the government because of a disagreement on
a proposed law that would alter the course of a planned motorway
through Herzegovina. A special working group to look into the plans
of the motorway was set up, but the minister for transport (a Bosniac)
resigned in protest. A new crisis emerged on 12 October when the
government had to urgently decide, in the absence of Croat ministers,
to provide a financial injection and appoint the new management
of the company responsible for managing the federation-owned oil
terminals in the port of Ploče.
75. Overall, according to the assessment of the High Representative,
the federation government remains “disunited, weak and often dysfunctional”.
Note
4.4 The situation in
the city of Mostar
76. More than a year after the local elections, Mostar
remains without a mayor (and a budget) due to the inability of Croats
and Bosniacs to come to an agreement. The temporary financing of
the city budget extended until 30 September, as perdecision of the High Representative,
ended on that date without any decision being taken by the city
council. On 30 October, the High Representative ordered the council
to elect a mayor within the next thirty days, using the secret ballot
procedure provided for in the City of Mostar Statute. So far, no
new election has been held and, without a budget for 2010, the city
administration faces an extremely difficult situation.
77. Given the failure of the city council to implement the High
Representative’s decision of 30 October concerning the election
of the city mayor, the High Representative had no other choice than
to use the Bonn Powers again and adopt, on 14 December 2009, a decision
modifying the city statute. According to this decision, the rules
for the election of the mayor are changed: in the third round of
voting, a simple majority of councillors present and voting is sufficient
to elect the mayor (provided that the quorum requirement, that is, the
presence of 18 councillors at the session, is met). All political
parties represented on the city council are called upon to ensure
the participation of their members in the voting. At the same time,
the High Representative’s decision modified the deadlines for the
adoption of the budget of the city and authorised the mayor to enact
the budget, should the council fail to adopt it within the set deadline.
These amendments should resolve the deadlock in the city council
and enable the city administration to move forward. We call upon
all stakeholders to comply with the decision of the High Representative
and unblock the situation as quickly as possible
5 Conclusions
and proposals
78. It follows from our analysis that, since the Assembly’s
last debate on the honouring of obligations and commitments by Bosnia
and Herzegovina (September 2008), very little progress has been
achieved in implementing the country’s remaining commitments and
obligations towards the Council of Europe. We are particularly concerned
by the fact that our repeated recommendations concerning the constitutional
reform have not been implemented yet: the locally driven “Prud process”
has produced limited concrete results and the internationally geared
“Butmir process” has so far failed to secure the agreement of key
domestic stakeholders on a comprehensive package of constitutional
amendments, improving the functioning of state institutions and
bringing the constitution into line with the requirements of the
ECHR.
79. The lack of constitutional reform negatively affects the functioning
of the country’s democratic institutions as well as the implementation
of reforms in a number of areas, in particular, the reform of the
state ombudsperson’s office, the reform of the judicial sector,
the implementation of the National War Crimes Strategy and the implementation
of the revised Annex 7 strategy. Given the ongoing discussions about
the closure of the Office of High Representative and the implementation
of the five objectives and two conditions necessary to achieve it,
as established by the Steering Board of the Peace Implementation
Council, the inability of state institutions to function effectively
and deliver results prevents the country from moving forward. Bosnia and
Herzegovina is already lagging behind its neighbours in the field
of European integration, as exemplified by the decision of the European
Commission not to include Bosnia and Herzegovina in the “first wave”
of countries to benefit from a visa-free regime as of end 2009.
Concrete and comprehensive reforms of the country’s constitutional
and institutional framework must be implemented now to catch up
with and prevent further delays.
80. We are aware of the fact that negotiations over the constitutional
reform are still ongoing, as the local stakeholders were given until
the end of 2009 to reach an agreement on the proposed “Butmir package”
of amendments. We hope very much that a last-minute agreement will
be reached. That said, we consider that the discussions and ongoing
negotiations should aim at reaching an agreement on a comprehensive
set of reform proposals, supported and agreed upon with the Venice
Commission and complying with the standards of the ECHR. A “piece-meal”
approach based on short-term compromises and ambiguous formulas
will hide rather than resolve the problems Bosnia and Herzegovina
has to face, especially, in the wake of the parliamentary elections
which are to be held in October 2010.
81. The closure and transformation of the Office of the High Representative
should also not be seen as an aim in itself. We believe and hope
that, in the near future, Bosnia and Herzegovina’s institutions
will function effectively and will be capable of handling the challenges
arising from the process of European integration. The Office of
the High Representative will then have no reason to exist and its
transformation will come as a “natural” process. Until that moment,
we believe that the authority and powers of the High Representative should
be supported, especially in the current context of escalation of
political tensions and anti-Dayton rhetoric. The High Representative
should remain the final authority to enforce the Dayton Peace Agreements and
support the necessary reforms, under the political guidance and
with the backing of the Peace Implementation Council.
82. Maintaining and unequivocally supporting the authority of
the Office of the High Representative does not prevent the interested
stakeholders from discussing its future transformation. However,
this discussion should take place in a wider context of assessment
of the state of implementation of the objectives of the Dayton Peace
Agreements and of its annexes.
83. Fourteen years after the signing of the peace accords, new
challenges to the stability of Bosnia and Herzegovina’s institutions
have emerged and new approaches and solutions should be found. Of
course, this is primarily the responsibility of Bosnia and Herzegovina’s
local stakeholders, but the members of and participants in the Peace
Implementation Council (and especially, the Council of Europe, the
European Union institutions, as well as Bosnia and Herzegovina’s
neighbours) have also a role to play. Therefore, in our opinion,
it may be thought appropriate to hold a multilateral conference,
with the participation of key local and international stakeholders,
to discuss the current challenges Bosnia and Herzegovina has to
face and the means to overcome them.
84. This conference could be jointly organised by the Parliamentary
Assembly, the Committee of Ministers and the Secretary General of
the Council of Europe and involve the key international partners,
in particular, the European Union. It would build upon the expertise
of and benefit from the contribution of the Venice Commission and
aim at suggesting practical steps to overcome the current institutional
and legal challenges, in order to speed up Bosnia and Herzegovina’s
advancement on the path of Euro-Atlantic integration.
***
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution 1115 (1997)
Draft resolution and draft recommendation adopted
unanimously by the committee on 17 December 2009
Members of the committee:
Mr Serhiy Holovaty (Chairperson),
Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev
(2nd Vice-Chairperson), Mr Leonid Slutsky (3rd
Vice-Chairperson), Mr Aydin Abbasov, Mr Pedro Agramunt Font de Mora,
Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender,
Mr József Berényi, Mr Mevlüt Çavuşoğlu,
Mr Sergej Chelemendik, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier,
Mr Telmo Correia, Mrs Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis,
Mrs Josette Durrieu, Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr Giuseppe Galati,
Mr Jean-Charles Gardetto, Mr József Gedei, Mr Andreas Gross, Mr Michael
Hagberg, Mr Holger Haibach, Ms Gultakin Hajibayli, Mr Michael Hancock,
Mr Davit Harutyunyan, Mrs
Olha Herasym’yuk, Mr Andres Herkel, Mrs Sinikka Hurskainen, Mr Kastriot Islami, Mr Mladen Ivanić, Mr Michael Aastrup Jensen,
Mr Miloš Jevtić, Mr Hakki
Keskin, Mr Haluk Koç, Mrs Katerina
Konečná, Mr Jaakko Laakso,
Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René
van der Linden, Mr Eduard Lintner, Mr Pietro Marcenaro, Mr Bernard
Marquet, Mr Dick Marty, Mr Miloš Melčák, Mrs Nursuna Memecan, Mr Jean-Claude
Mignon, Mr João Bosco Mota Amaral,
Mr Adrian Năstase, Mrs Yuliya Novikova, Mrs Elsa Papadimitriou, Mr Alexander Pochinok, Mr Ivan Popescu, Mrs Zaruhi Postanjyan, Mrs Marietta de Pourbaix-Lundin, Mr Christos
Pourgourides, Mr John Prescott, Mrs Mailis Reps, Mr Andrea Rigoni,
Mr Ilir Rusmali, Mr Armen Rustamyan, Mr Indrek Saar, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Sergey Sobko, Mr Yanaki Stoilov, Mr Christoph Strässer,
Mrs Chiora Taktakishvili,
Mrs Özlem Türköne, Mr Egidijus
Vareikis, Mr José Vera Jardim, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend,
Mrs Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski
NB: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko
