The functioning of democratic institutions in Bosnia and Herzegovina
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on
24 January 2012 (3rd Sitting) (see Doc. 12816, report of the Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee), rapporteurs: Mr Mignon
and Ms Woldseth). Text adopted by the Assembly on 24 January 2012
(3rd Sitting).
- Thesaurus
1. The Parliamentary Assembly recalls
its
Resolution 1701 (2010) on
the functioning of democratic institutions in Bosnia and Herzegovina,
in which it called on the key political stakeholders to engage,
before the October 2010 parliamentary elections, in a constructive
dialogue about concrete proposals for constitutional amendments,
with a view to adopting a comprehensive package eliminating, in
particular, the constitutional discrimination found by the European
Court of Human Rights in its judgment of 22 December 2009 in the
case of
Sejdić and Finci v. Bosnia and
Herzegovina, with regard to the right of the so-called
“others” to stand for election to the presidency and the House of
Peoples.
2. The Assembly also recalls its
Resolution 1725 (2010) on the urgent
need for constitutional reform in Bosnia and Herzegovina, in which
it expressed its serious concern about the non-adoption, prior to
the 2010 elections, of the necessary amendments to the constitution
and the election law. These elections, albeit globally free and
fair, were thus held on the basis of a constitutional and legal
framework which is in violation of the European Convention on Human
Rights (ETS No. 5) and its protocols.
3. The Assembly strongly regrets that no credible efforts were
undertaken by the authorities to set up, before the elections, a
serious institutionalised process for the preparation of a comprehensive
package of constitutional amendments, in consultation with civil
society and a broad range of legal experts, to be adopted as a matter
of priority as soon as possible after the elections. The mixed working
group for the implementation of the Sejdić and Finci judgment, composed
of three ministers and nine parliamentarians, was paralysed by absenteeism.
By the end of its work in June 2010, it had not reached a consensus
on the mandate and composition of the body to be set up after the
elections.
4. The Assembly regrets that a whole year was lost and that the
new Joint Interim Committee of the Parliamentary Assembly of Bosnia
and Herzegovina was set up only in October 2011. Its task was to
prepare constitutional amendments by 30 November and amendments
to the election law by 31 December 2011. On 1 December, the Joint
Interim Committee officially announced the failure of its work.
The Assembly regrets that, once again, it was not possible to reach
even a minimum consensus and to submit constitutional amendment proposals
to parliament.
5. The Assembly reiterates that the Sejdić and Finci judgment
is legally binding and must be implemented. If the necessary amendments
are not adopted in good time before the next elections in 2014,
the Assembly warns that Bosnia and Herzegovina’s continued membership
of the Council of Europe may be at stake.
6. The Assembly therefore:
6.1 urges
the Parliamentary Assembly of Bosnia and Herzegovina to continue
its work and adopt constitutional amendments without further delay.
It reiterates that the execution of the Sejdić and Finci judgment
is a first step in the comprehensive constitutional reform that
is needed in order to move away from the institutional straightjacket
created by the Dayton Constitution, towards a modern, Euro-compatible
and functional democracy in which every citizen, regardless of his
or her ethnic affiliation, enjoys the same rights and freedoms.
The Assembly considers, in particular, that the restrictive quorum rules,
the excessive use of entity voting (a double qualified majority
used for all decision-making in parliament) and the vague definition
of the so-called “vital national interest” – instead of preventing outvoting
by any of the ethnic groups through dialogue and search for compromise
– have been systematically abused and now hamper all decision-making
processes;
6.2 reiterates that a blueprint for constitutional reform
was provided by the European Commission for Democracy through Law
(Venice Commission) already in 2005 and calls on the authorities
of Bosnia and Herzegovina to take into account its recommendations;
6.3 recalls that constitutional reform is indispensable for
the functioning of the State but that it also necessary to carry
out constitutional reform at entity level and therefore calls on
both Republika Srpska and the Federation of Bosnia and Herzegovina
to finalise as a matter of urgency the adoption of amendments to
their constitutions, in line with the recommendations made by the
Venice Commission, notably with regard to the abolition of the death
penalty in Republika Srpska and the deletion of the constitutional
provisions on the Federation’s ombudsman.
7. The Assembly deeply regrets that, more than a year after the
general elections were held at all levels except for municipal level
on 3 October 2010, no government has yet been formed. Despite the
serious economic and financial situation of Bosnia and Herzegovina,
the leaders of the six main political parties continued their bargaining
about the ethnic distribution of posts in the Council of Ministers
until 28 December 2011, when they finally reached an agreement,
notably on the appointment of a Croat from the HDZ (Croatian Democratic
Union) as Chairman of the Council of Ministers.
8. The Assembly takes note of the nomination by the tripartite
presidency on 5 January 2012 of a candidate for the position of
Chairman of the Council of Ministers and of his confirmation by
the House of Representatives on 12 January. The new chairman now
urgently needs to complete forming the government in order to get
the country back on track.
9. The Assembly considers that the democratic will of the voters
must be respected and that democratically elected institutions,
such as the Parliamentary Assembly and the tripartite presidency,
should not be under instructions of political party leaders, but
should work according to the four-year mandate they received from the
voters. The Assembly expects the new Council of Ministers to carry
out its work in a responsible way and to put the interests of all
the citizens of Bosnia and Herzegovina first, regardless of their
ethnicity. Without co-operation, co-ordination and communication
between all levels of authority and all political stakeholders it
will not be possible to achieve progress.
10. The Assembly also stresses the importance of the full co-operation
of Bosnia and Herzegovina with the Council Europe. This requires
the active presence of Bosnia and Herzegovina representatives in
the various bodies and institutions of the Organisation. Regrettably,
for almost ten years now, the presidency has been unable to nominate
candidates for key positions in the Venice Commission, the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT), the European Commission against Racism
and Intolerance (ECRI), the bodies of the Framework Convention on
National Minorities, and other bodies. The presidency also needs
to send a list of candidates, by 10 February 2012, for the seat
of judge at the European Court of Human Rights, since the current
judge resigned well before the end of her term. The Parliamentary
Assembly of Bosnia and Herzegovina also urgently needs to elect
the chairperson of the country’s delegation to the Parliamentary
Assembly of the Council of Europe.
11. The Assembly also strongly regrets the long delay in the constitution
of the two houses of the Parliamentary Assembly of Bosnia and Herzegovina:
the House of Representatives only started to function towards end
of May 2011, and the House of Peoples at the beginning of June 2011.
This has significantly delayed the adoption of legislation, such
as the Census Bill and the State Aid Bill, that are required by
Bosnia and Herzegovina’s European Partnership Agreement with the
European Union.
12. The Assembly urges the authorities of Bosnia and Herzegovina
to adopt as soon as possible amendments to the election law in order
to create mechanisms to sanction the unconstitutional behaviour
of some cantonal assemblies, which blocked the constitution of the
State House of Peoples by not sending their delegates within the
required deadlines to the Federation House of Peoples, which in
turn sends delegates to the House of Peoples at State level.
13. The April 2012 part-session marks the 10th anniversary of
Bosnia and Herzegovina’s accession to the Council of Europe. The
current situation hampers the completion of much needed reforms
in key sectors, such as democratic institutions, the rule of law
and human rights, and slows down the country’s advancement on the path
to European integration. The Assembly notes that, since 2006, very
little progress has been achieved in the implementation of Bosnia
and Herzegovina’s key outstanding commitments to the Council of
Europe.
14. In order to end the perpetual cycle of deadlock and confrontation,
the Assembly once again calls on the authorities of Bosnia and Herzegovina
and the key political stakeholders to shoulder their responsibilities,
stop obstructionism and work constructively at the level of State
institutions.
15. The Assembly resolves to closely follow the situation in Bosnia
and Herzegovina and to take stock of the progress achieved in the
implementation of this and previous resolutions. If no progress
is made on the issues mentioned in this resolution before 15 March
2012, the Assembly will consider any further action that might be required
at its April 2012 part-session, on the occasion of the 10th anniversary
of the accession of Bosnia and Herzegovina to the Council of Europe.
