B Explanatory
memorandum by Ms Woldseth and Mr Vareikis, co-rapporteurs
1 Introduction
1. On its accession to the Council of Europe on 24 April
2002, Bosnia and Herzegovina (BiH) accepted to honour the obligations
placed on all member States under Article 3 of the Organisation’s
Statute, together with a number of specific undertakings set out
in
Opinion 234 (2002) on Bosnia and Herzegovina’s application for membership
of the Council of Europe. With a view to ensuring compliance with
these commitments, the Parliamentary Assembly decided, pursuant
to
Resolution 1115 (1997), to closely monitor the situation in Bosnia and Herzegovina
as from its accession.
2. The first monitoring report was presented to the Assembly
on 23 June 2004 and led to the adoption of
Resolution 1383 (2004) and
Recommendation
1664 (2004). Following the failure of the constitutional reform
in April 2006, the Assembly also decided in June 2006 to hold a
debate under urgent procedure on the constitutional reform in Bosnia
and Herzegovina and adopted
Resolution
1513 (2006). The second full monitoring report was debated in September
2008 and led to the adoption of
Resolution 1626 (2008).
3. On 22 December 2009, the European Court of Human Rights delivered
its judgment in the case of Sejdić and
Finci v. Bosnia and Herzegovina, in which it found a
violation of Protocol No. 12 (general prohibition of discrimination)
to the European Convention on Human Rights (ETS No. 5, “the Convention”)
and a violation of Article 3 of Protocol No. 1 in conjunction with
Article 14 of the Convention (right to free elections and prohibition of
discrimination in relation to other Convention-protected rights).
Both Mr Finci (a Jew) and Mr Sejdić (a Roma) belong to the constitutional
category of “Others” and, as such, cannot stand for election to
the Presidency of the country or be elected to the House of Peoples
of the Parliamentary Assembly of Bosnia and Herzegovina.
4. According to the Constitution (Annex 4 of the Dayton Peace
Accords), the tripartite Presidency of the State is directly elected
every four years: one member must be a Serb elected from the territory
of Republika Srpska (RS), one of the two entities, and the other
two must be respectively a Croat and a Bosniak (Muslim) elected
from the territory of the Federation of Bosnia and Herzegovina,
the other entity, composed of 10 cantons. Again, according to the
Constitution, the House of Peoples must be composed of five Serbs (appointed
by the Republika Srpska National Assembly) and by five Croats and
five Bosniaks appointed by the House of Peoples of the Federation.
This system excludes everybody who does not declare him or herself
as belonging to a “constituent people”, either because they are
members of the 17 recognised minorities or because they do not wish
to declare themselves, from participating in the political life
of the country.
5. In January 2010, the Assembly adopted
Resolution 1701 (2010) on the functioning of democratic institutions
in Bosnia and Herzegovina, urging the authorities to adopt the necessary
constitutional and legislative amendments in order at least to abide
by the
Sejdić and Finci judgment
before the next general elections, scheduled for 3 October 2010.
The Assembly also suggested holding a multilateral conference with key
local and international actors (notably the countries represented
on the Peace Implementation Council, the European Union, the Council
of Europe and the neighbouring countries) to discuss ways of overcoming
the institutional and political deadlock in Bosnia and Herzegovina.
6. Neither the Constitution nor the election law were amended
in time for the 2010 elections.
Note In
Resolution 1725 (2010) on the urgent need for constitutional reform
in Bosnia and Herzegovina, the Assembly therefore expressed its
disappointment that the next elections would be held on the basis
of rules which were in violation of the Convention and its Protocols
and called on the authorities not to waste the remaining time before
the elections and to launch immediately a serious institutionalised
process for preparing a comprehensive package of constitutional
amendments to be adopted right after the elections. This was not
done either, since the members of the mixed Sejdić and Finci working
group (three ministers and nine MPs) could not agree on the mandate
and composition of this constitutional reform commission and, in
particular, whether it should be set up by a law or by a decision
of parliament. Thus, on 26 August 2010, the Council of Ministers
had to take note of the working group’s failure and agreed to its
proposal to resume work only after the elections.
7. In January 2012, the Assembly adopted
Resolution 1855 (2012), in which it regretted the failure of the Joint Interim
Committee of the Parliamentary Assembly of Bosnia and Herzegovina,
which had been set up in October 2011, one full year after the elections,
to prepare constitutional amendments by the deadline of 31 December
2011. The Assembly also warned that Bosnia and Herzegovina’s continued
membership of the Council of Europe might be at stake if the necessary
amendments were not adopted in good time before the next elections
in 2014.
2 The 2010
elections
8. Elections were held at all levels, except municipal,
on 3 October 2010. At State level, voters had to elect the three-member
Presidency of the State and the 42 members of the House of Representatives.
Voters in the Republika Srpska elected the President of the Republika
Srpska (and two vice-presidents) and the 83 members of the National
Assembly of Republika Srpska. Voters in the Federation of Bosnia
and Herzegovina elected the 98 members of the House of Representatives
of the Federation.
Note Finally,
voters in the Federation also had to elect the members of the 10
cantonal assemblies.
9. With the exception of the Social Democratic Party (SDP), which
officially claims to be multi-ethnic, the other major parties remain
essentially ethnic parties. For the Serbs, the main parties are
the SNSD (Alliance of Independent Social Democrats), the SDS (Serbian
Democratic Party) and the PDP (Party for Democratic Progress). On
the Croat side, the main parties are the HDZ (Croatian Democratic
Union of Bosnia and Herzegovina) and the HDZ 1990 (Croatian Democratic
Union 1990
Note). For the Bosniaks, the main
parties are the SDA (Party for Democratic Action), the SBiH (Party
for BiH) and the newly created SBB (Party for a better future of
BiH). On polling day, the turnout was 56.28%, which was an increase
of some 3% over 2006.
2.1 Election of the
tripartite State presidency
10. Voters registered in Republika Srpska, whether Serb,
Croat or Bosniak or from the category of “Others”, could only vote
for the Serb member of the Presidency. Incumbent Nebojša Radmanović,
from the SNSD, was re-elected with 295 629 votes, namely 48.92%.
11. Voters in the Federation, again independently of their own
ethnic affiliation, could only vote either for the Croat member
of the Presidency or for the Bosniak one. For the Bosniak seat,
the winner was Bakir Izetbegović who received 162 831 votes, namely
34.86%. Incumbent Haris Silajdžić from the SBiH, was relegated to
third place with barely 25.10% of the votes. The most popular politician
in the Federation,
Note and
the best elected throughout the country, is undoubtedly the Croat
member of the Presidency, Zeljko Komšić, from the SDP. He was re-elected
for a second term with 337 065 votes, namely 60.61%. The candidates
from the biggest Croat parties, Borjana Kristo of the HDZ and Martin
Raguž of HDZ 1990, barely received 19.74% and 10.84% of the votes
respectively.
12. Given the relatively small size of the Croat ethnic community
in BiH (they were around 760 000, namely 17% of the population according
to the pre-war 1991 census, and, according to Cardinal Puljić, the
number today is approximately 400 000 people (out of the total population
of about 3 800 000), it is clear that a vast number of Bosniaks,
instead of voting for their ethnic Bosniak candidate, voted instead
for Mr Komšić. As in 2006, we see this as a positive sign that politics
in BiH can move away from the ethnic divide.
13. The mainstream Croat parties, HDZ and HDZ 1990, however, consider
that Mr Komšić is not a “legitimate” Croat because he was elected
with Muslim votes. They do not question his ethnicity per se, but deny him the right to
represent the Croat people in the Presidency. For them, there is
a major difference between being a representative of the Croat people, elected by
Croats, and being a representative from the Croat
people, elected with votes cast by others than Croats.
14. We still completely disagree with this view. We think that
it has no constitutional and legal basis whatsoever and that it
shows complete disrespect for the democratically expressed will
of the people.
2.2 Elections to the
various parliaments, at State and entity levels
2.2.1 At State level
15. The BiH Constitution provides that the House of Representatives
of BiH is composed of 42 delegates, of which 28 are elected from
the territory of the Federation and 14 from the territory of Republika
Srpska. This time the biggest election winner from among the 28
MPs to be elected to the House of Representatives from the territory
of the Federation was Zlatko Lagumžija’s SDP. This multi-ethnic
party, which has been in opposition since 2002, won 26.07% of the
votes and now has eight MPs in the House of Representatives. The main
Bosniak parties, Sulejman Tihić’s SDA, Fahrudin Radončić’s SBB and
Haris Silajdžić’s SBiH, won seven, four and two seats respectively.
The main Croat parties, HDZ and HDZ 1990, won three and one seat respectively.
Two smaller Croat parties, the HSP (Croatian Party of Rights) and
the NSRzB (People’s Party for Betterment through Work), got one
seat each. One seat went to a small mainly Bosniak party, the DNZ.
16. The seats allocated to the 14 delegates elected from the territory
of Republika Srpska are as follows: eight for Milorad Dodik’s SNSD,
four for Mladen Bosić’s SDS, one for the Mladen Ivanić’s PDP and
one for the DNS (Democratic People’s League). For the first time,
all 14 MPs from Republika Srpska are ethnic Serbs. The SNSD and
SDS decided to form a coalition at State level, but the SDS remains
in opposition at the entity level in Republika Srpska.
17. Following the elections, the SDP, the SDA and two small Croat
parties (HSP and NSRzB) formed a coalition based on a commonly agreed
platform for government. Together, they held 17 seats out of 42.
This was of course not a majority, but the “platformists”, as they
are called, hoped, at least on issues of major importance, to be
able to count on the four votes of the SBB and the two votes of
the SBiH, which both decided to stay in opposition.
18. The newly elected MPs met in an inaugural session on 30 November
2010, but only to take the oath. Due to the ongoing negotiations
on government formation, there was no agreement either on who should become
Speaker and Vice-Speakers of the House. Finally, the House elected
a Speaker (from SDP) and two Vice-Speakers (from SNSD and HDZ 1990)
on 20 May 2011 and started working.
Note However, since all legislation
also needs to be adopted by the House of Peoples, which was not
constituted until 4 June 2011, in effect there was no legislative
work carried out at all for eight months after the elections.
19. The House of Peoples of Bosnia and Herzegovina comprises 15
delegates, two thirds of which must come, according to the Constitution,
from the Federation (five Croats and five Bosniaks) and one third
from Republika Srpska (five Serbs). It is the Republika Srpska National
Assembly which appoints its five delegates to the House of Peoples,
this was done already in January 2011. For the Federation delegates,
matters were unacceptably delayed because the 10 delegates had to
be appointed by the House of Peoples of the Federation.
20. The House of Peoples of the Federation has 58 delegates (17
Bosniaks, 17 Serbs, 17 Croats and seven “Others”) who are appointed
by the 10 cantonal assemblies. According to the Federation’s Constitution
(Article 10), the cantonal assemblies should have sent their delegates
to the Federation House of Peoples no later than 20 days after the
elections. This constitutional deadline was ignored by a number
of cantons with a Croat majority
Note until
30 May 2011. The House of Peoples at State level was thus inaugurated
only on 4 June 2011.
2.2.2 At entity level
21. In Republika Srpska
, although
Milorad Dodik’s SNSD lost four seats compared with 2006, the SNSD remains
the strongest party
Note in
the RS National Assembly with 37 seats out of 83. In coalition with
the Socialist Party and the DNS, the SNSD thus has a comfortable
majority of 47 seats. In these circumstances, government formation
was not a problem: the RS government, which consists of 16 ministers,
was approved already on 29 December 2010, and Prime Minister, Aleksandar
Džombić, took office on 1 February 2011,
Note following a 31 January ruling of the
Vital National Interest (VNI) Panel of the RS Constitutional Court
that his appointment did not violate Bosniaks’ vital national interest.
Note
22. Things were much more complicated in the Federation. The Federation
House of Representatives has 98 seats: 28 were won by the SDP, 23
by the SDA, and five by the NSRzB. The Platform parties thus command 56
seats and have a clear majority. The HDZ gained 12 seats and the
HDZ 1990, five seats.
Note According
to the election law,
Note however,
the government could not be formed until the composition of House
of Peoples of the Federation was completed, i.e. until all 10 cantonal
assemblies had sent their delegates.
23. In order to keep a strong bargaining chip for the negotiations
over government formation at State level, three cantons with a Croat
HDZ/HDZ1990 majority did not send their delegates to the Federation
House of Peoples. On 17 March 2011, the Platform parties, who had
a majority of 33 cantonal delegates in the House of Peoples (out
of 58), convened a session, took the oath and elected the President
Note and Vice-Presidents of the Federation
and the Speaker and Vice-Speakers of the House of Peoples.
24. The House of Peoples then immediately proceeded with the appointment
of a government, which was confirmed by the House of Representatives.
The Federation Government comprises 16 ministers, with Nermin Nikšic
(SDP) as Prime Minister, and Jerko Ivanković-Lijanović (NSRzB) and
Desnica Radivojević (SDA) as Deputy Prime Ministers. The two HDZ
parties held no ministerial post.
25. On 24 March 2011, these two decisions were annulled by the
Central Election Commission
Note and, on 28 March,
the High Representative, Valentin Inzko, suspended them until further
notice. This suspension has not been lifted to date.
26. The High Representative was very much criticised for interfering
in the Federation government formation process. But a solution had
to be found urgently: on 26 January 2011, the High Representative
had to issue a decision on temporary financing for the period January-March,
expiring 31 March, without which salaries, pensions and allowances
could no longer be paid by the Federation authorities to budget
beneficiaries. A budget for 2011 was adopted by the new government
on 26 March 2011.
27. The HDZ and HDZ 1990, with the support of Dodik’s SNSD, consider
the formation of the House of Peoples and the subsequent formation
of the government in the Federation to be unconstitutional, illegal
and illegitimate because they consider themselves as the only legitimate
representatives of the Croats in Bosnia and Herzegovina. Both the
HDZ and HDZ 1990 felt sidelined and excluded. They are now forcefully
calling for the creation of a third entity and have revived the
Croat National Council, a body grouping all political parties with
a Croat prefix.
3 The protracted
stalemate with regard to government formation at State level
28. The Council of Ministers of Bosnia and Herzegovina
comprises nine ministers and a chairman. The Constitution of Bosnia
and Herzegovina provides that no more than two thirds of all ministers
may be appointed from the territory of the Federation and that the
chairman may appoint deputy ministers who shall not be of the same
constituent people as their ministers. In total, there are thus
19 positions to be shared. There is an unwritten gentlemen’s agreement
that the position of chairman should rotate between the constituent
peoples. The previous chairman, Nikola Špirić, is a Serb, the one
before him, Adnan Tersić, was a Bosniak. The chairman to be appointed
for the 2010-2014 term was thus supposed to be a Croat.
29. The Presidency forwards to the House of Representatives, no
later than 15 days after its inaugural session, its proposal for
the position of chairman of the Council of Ministers. If the House
of Representatives confirms the nomination, the chairman then appoints
ministers and deputy ministers, who again need to be confirmed by
the House of Representatives. If the candidate proposed by the Presidency
fails to be confirmed by the House of Representatives, the Presidency
has eight days to come up with a new nomination.
30. Given its election results, the SDP originally claimed the
position of chairman of the Council of Ministers, preferably for
the SDP President
Note himself.
This was strongly opposed by the two HDZ parties and by the Serb parties,
because of the above-mentioned informal rotation rule. As the biggest
Croat parties, the two HDZs consider the post to be theirs by right.
They also claim two other ministerial posts.
31. The SDP, as a multi-ethnic party, then proposed a non-partisan
Croat, a professor from Mostar, Slavo Kukić. The HDZ proposed Borjana
Kristo, former Federation President, and the NSRzB, another of the
Platform parties, proposed Mladen Ivanković-Lijanović. On 14 June
2011, the Presidency examined these candidatures and decided to
send the nomination of Slavo Kukić to the House of Representatives
for confirmation. However, on 29 June 2011, Mr Kukić’s nomination,
although it obtained a majority of 22 votes, was not confirmed, because
the majority needed to include one third of positive votes from
Republika Srpska, and it did not. According to the BiH Constitution,
in the second round of voting, it was required that votes from the
14 Republika Srpska delegates should not include two thirds or more
of votes against the nomination. On 14 July, the nomination of Mr
Kukić was thus finally rejected, as more than two thirds of RS Delegates
voted against.
32. According to the law on the Council of Ministers, the Presidency
should have forwarded another nomination to the House of Representatives
within the next eight days. It did not, but instead wrote a letter
to the main political parties requesting them to nominate a candidate
who would have the support of at least 22 delegates in the House
of Representatives.
33. As in 2006, it was widely expected that negotiations for government
formation at State level would take around three to four months,
or a maximum of six months. Instead, there was no government at
State level more than one year after the elections. Extremely concerned
about this situation and the resulting institutional paralysis,
we carried out a fact-finding visit to Bosnia and Herzegovina from
20 to 23 September 2011, visiting, inter
alia, leaders of the main political parties in Sarajevo
and Mostar in order to get a better understanding of the reasons
behind this continued deadlock.
34. The six main party leaders (SDP, SDA, HDZ, HDZ 1990, SNSD
and SDS) subsequently held a number of meetings but no agreement
was reached: Republika Srpska claimed four ministries, including
the Minister for Foreign Affairs,
Note the
two HDZs insisted on having the chairmanship and two other ministries,
the SDP still wanted at least the Foreign Affairs Ministry. There
were fights also with regard to the distribution of the posts of
deputy minister: the Platform parties at some point agreed on the
attribution of posts to the HDZs, including the chairmanship, but
requested that at least one deputy minister be appointed from the
Croat Platform parties. This was refused. The SDA suggested taking
into account not only the 19 positions in the Council of Ministers, but
more globally the 63 to 70 positions in all State institutions and
to distribute them according to the ethnic repartition key provided
by the 1991 census. This was rejected as well, because the HDZs
claimed complete equality, namely a third of all posts. In order
to show some flexibility, the Republika Srpska accepted at some point
that one of the ministers appointed from the territory of the Republika
Srpska could be either a Bosniak or a Croat.
Note
35. Finally, on 28 December 2011, the leaders of HDZ 1990, HDZ,
SDA, SDP, SDS and SNSD reached a broad political agreement that
included forming the Council of Ministers of Bosnia and Herzegovina,
more than a year after the October 2010 elections. The 28 December
agreement included a commitment to adopt a budget for 2011 and two
key European Union-related laws — the State Aid Law and the Census
Law.
36. The Bosnia and Herzegovina Council of Ministers was finally
appointed by the Bosnia and Herzegovina House of Representatives
on 10 February 2012, with Mr Vjekoslav Bevanda (a Croat from HDZ)
as Chairman. On 3 February, the Law on Population Census, Households
and Apartments in Bosnia and Herzegovina and the Law on State Aid
were adopted by the Bosnia and Herzegovina Parliamentary Assembly.
Further positive news followed on 9 March 2012, when the leaders
of the six political parties in the State-level governing coalition
signed an agreement on principles to be used to resolve the issues
of ownership and use of defence and State property. The implementation
of the agreement on defence property would open the way for the
full participation of Bosnia and Herzegovina in the Membership Action
Plan of the North Atlantic Treaty Organisation (NATO).
37. We again travelled to Bosnia-Herzegovina from 3 to 7 June
2012. This was the first visit to the country of the newly appointed
co-rapporteur, Mr Egidijus Vareikis. We had been happy to hear that
on 31 May 2012, just before our visit, the House of Representatives
had finally adopted the State budget for 2012, totalling 1.3 billion
KM (around 650 million euros).
38. However, on our arrival in Sarajevo, we heard that the SDA
(the biggest Bosniak party), one of the main partners in the coalition
formed by the SDP (the officially multi-ethnic party), together
with two small Croat parties (the HSP and the NSRzB), had voted
against the budget.
39. The SDA’s refusal to vote for the budget was apparently the
straw that broke the camel’s back, given the increasingly strained
relations between SDA and SDP since the formation of government
at State level in February 2012.
40. The SDP leader and current Foreign Affairs Minister, Zlatko
Lagumdžija, called for the resignation of the three SDA ministers
at State level, where they were holding the positions of Ministry
of Security, Ministry of Defence and Deputy Minister of Finance.
He also announced that the coalition agreement with the SDA and the
two small Croat parties was equally no longer valid for the Federation
government and in the ten cantons of the Federation.
41. In a complete U-turn,
Note the
SDP decided to form a coalition with the two main Croat parties
(HDZ and HDZ 1990) and with the SBB (Party for a Better Future),
headed by Fahrudin Radončić, a media mogul and owner of the biggest
daily newspaper,
Dnevni Avaz.
Out of 42 seats in the House of Representatives at State level,
the two HDZ’s together and the SBB would command four seats each,
and the SDP eight, i.e. a total of 16 seats. The previous coalition
commanded 17 seats in the House of Representatives, including the
seven seats of the SDA.
42. Both the SDA and the two small Croat parties have apparently
decided to fight their eviction tooth and nail, as we will see below.
The new coalition agreement is not only opposed by the SDA, it has
also created havoc within the SDP party itself. On 23 July 2012,
Mr Zejlko Komšić, Vice-President of the SDP, who had been re-elected
in October 2010 to the Croat seat in the Presidency of the country,
announced that he was leaving the SDP. Komšić, the most popular
politician in the country, then proceeded to create his own multiethnic
party, the Democratic Front.
43. On 25 June 2012, the Chairman of the Council of Ministers
formally requested parliament to confirm the dismissal of the three
SDA ministers. This required a simple majority in both Houses. On
5 July 2012, the House of Representatives voted in favour of dismissal.
Things were trickier in the House of Peoples where the SDA holds
three seats out of the five reserved for Bosniaks. At its session
on 19 July 2012, the Bosniak caucus invoked “vital national interest”
to block the voting on the removal of its ministers. This was rejected
by the Constitutional Court and the SDP's efforts to remove the
SDA from the State-level Council of Ministers ultimately succeeded
on 22 October 2012, with the BiH Parliamentary Assembly voting to
remove them from the BiH Council of Ministers. The new ministers
took up office in November 2012.
44. As a result of this protracted political crisis and the ensuing
political bickering, the productivity of the common institutions
at State level has been dismal: from October 2010 to July 2013,
the BiH Parliamentary Assembly adopted only seven new laws (of which
three related to the budget), and 48 amendments to existing laws.
Eight bills submitted by the Council of Ministers were rejected,
of which five did not pass because the MPs from Republika Srpska
used the mechanism of entity voting.
45. One striking example of the totally irresponsible behaviour
of the politicians in BiH is the law on the 13- digit single citizen
identification number. The existing law must be amended because
the BiH Constitutional Court ruled in 2011 that the names of a number
of municipalities needed to be changed. Since its decision was not
implemented, the Constitutional Court decided in February 2013 to
repeal the said provisions. As a result, no personal ID numbers
could be attributed to the 3 000 children born after February 2013.
This means they cannot get travel documents or health-care benefits.
46. On 6 June 2013, following the death of a three-month-old girl
because she could not cross the border for urgent medical treatment
abroad, protesters gathered peacefully in front of the parliament,
urging MPs to adopt amendments to this law as a matter of urgency
and in any event before 30 June. They prevented the MPs from leaving
the premises for 14 hours. MPs from Republika Srpska, as well as
a number of Croat MPs, then claimed they no longer felt safe in
Sarajevo and refused to attend any parliamentary sessions, unless
and until the State and cantonal police were held accountable and
the demonstrators prosecuted. This boycott continued until 9 July,
when the whole session was devoted to a discussion on the security
of MPs.
47. The law was eventually adopted under urgent procedure on 23
July, but the Bosniak caucus in the House of Peoples invoked vital
national interest and its adoption is thus blocked until the BiH
Constitutional Court takes position, probably not before late September
2013.
4 The ongoing political
crisis in the Federation
48. At State level, the HDZ and HDZ 1990 were eventually
given the three ministerial positions they were claiming, including
the post of Chairman of the Council of Ministers. But at Federation
level, neither HDZ got a single ministerial post: they were distributed
either to the SDA or to the two small Croat parties (HSP and NSRzB),
part of the so-called Platform coalition. The President of the Federation
is, for example, from the HSP, and one of the vice-presidents is
from the SDA. Since May 2012, the new coalition has tried unsuccessfully
to oust the SDA both at Federation and cantonal level.
Note
49. The speaker and deputy speaker of the Federation House of
Representatives can be removed by a simple majority. This was done
on 26 June 2012, during a session convened by the deputy speaker,
which was declared unconstitutional by the Federation Constitutional
Court on 28 August, following which the dismissed speaker from the
SDA and the deputy speaker from the HSP returned to their posts.
They were finally dismissed in accordance with the rules of procedure
on 6 September 2012. The Federation House of Peoples for its part
succeeded in replacing its speaker on 3 July 2012.
50. The President of the Federation can only be dismissed for
violation of the oath of office or because he is unworthy to serve,
according to Article 16.2 of the Constitution, by a decision of
the Constitutional Court upon requests made by both houses with
a two-thirds majority. The new coalition cannot muster this two-thirds majority
and the President thus remains in office to date. On 26 April 2013,
he was arrested and placed in pre-trial detention by the State police
upon request of the State prosecutor for allegedly having sold presidential pardons
to convicted criminals. The detention order was cancelled by the
BiH Constitutional Court and he resumed office about a month later.
51. The Federation government must be composed of eight Bosniaks,
five Croats and three Serbs.
Note The Cabinet may be removed
either by the President with the concurrence of the Vice-President,
or by a vote of no confidence adopted by a majority in each house
of the legislature. The President removes ministers upon the proposal
of the Prime Minister (except when he receives a resignation, see
below). The SDA holds nine ministerial positions in the Federation
government, while the SDP holds eight, including the Prime Minister.
All of the SDA ministers refused to resign and the Federation President
(from HSP) refused to remove them.
52. On 22 June 2012, the Federation President accepted the resignation
of the Minister for Spatial Planning, who had switched allegiance
from the SDA to the SDP. The minister claimed he had not in fact
resigned and that the Federation President had acted upon a blank
resignation letter,
Note which he had signed
at the request of the SDA when taking up office. On the same day,
seven SDP ministers, plus the Minister for Spatial Planning, voted
to launch personnel changes in a number of Federation public companies.
This led to an appeal to the Federation Constitutional Court, which
ruled on 9 October 2012 that the decision on the minister’s resignation
was valid until disputed by the minister himself.
53. In November 2012, the SDA, and the two small Croat parties
(HSP and NSRzB) walked out of a government session over a contested
decision on the management of the Federation Development Bank. This left
the government without the necessary quorum to adopt the 2013 budget,
a prerequisite for the disbursement of funds by the International
Monetary Fund (IMF).
54. Since it proved impossible to remove the SDA ministers from
government, the only other solution was a vote of no confidence.
The House of Representatives thus voted no confidence on 12 February
2013, and the House of Peoples followed suit on 15 February, but
the Bosniak caucus in the House of Peoples invoked vital national
interest (VNI), and, therefore, the decision on no confidence cannot
be deemed adopted or in force.
55. The Federation Constitutional Court must adjudicate the invocation
of VNI. This Court has nine members of which five are required as
a minimum quorum to make decisions. For the past four years however,
both the former and current Federation President and Vice-Presidents
failed to propose nominations for the four missing
Note judges to the
Constitutional Court, nominations which have to be confirmed by
the Federation House of Peoples. In addition, the VNI panel of the
Federation Constitutional Court has to be composed of seven members,
two from each constituent peoples, plus one “Other”, who must be
elected by both houses of the Federation parliament, and can only
decide by a two-thirds majority on each invocation of the VNI. There
is currently a backlog of 18 VNI cases before the Federation Constitutional
Court, all related to complaints brought by cantonal legislatures.
56. Finally, one judge was elected in March and another in July
2013. Another appointment was blocked by the Bosniak caucus in the
House of Peoples. As the Court now has seven judges out of nine,
there was no reason to postpone appointments to the VNI panel. This
was done by both houses of parliament at the end of July 2013.
57. We therefore expect the Federation Constitutional Court to
deal with the VNI invocation regarding the vote of no confidence
as a matter of priority.
5 The situation in
Mostar
58. Mostar is a divided city
Note and its statute was imposed
by the High Representative in 2004. It is, with Sarajevo and Brčko,
the only city in Bosnia-Herzegovina where the mayor is indirectly
elected.
59. We visited Mostar in June 2012, a few months ahead of the
local elections scheduled for 7 October 2012. Our meetings focused
on the implementation of the decision of the Constitutional Court
of Bosnia-Herzegovina that had found unconstitutional in November
2010 a number of provisions specific to the election system in Mostar.
Note The
Constitutional Court had set a six-month deadline to the BiH Parliamentary
Assembly to correct the relevant provisions of the election law.
After the deadline expired, the Constitutional Court decided, in February
2012, to repeal the provisions it had earlier deemed unconstitutional.
60. Given the existing legal vacuum, the Central Election Commission
considered it could not organise elections in Mostar. We spoke to
the current mayor, the city council, the cantonal Prime Minister
and the Mostar Mufti. The situation is very tense: the Bosniaks
are unwilling to accept the Croat proposal to amend the election law
to make the city a single electoral constituency, because the Croats
would then have the majority (which was Bosniak before the war).
61. The Croat parties (HDZ and HDZ 1990) consider that the decisions
of the Constitutional Court can only be implemented by giving each
vote the same weight. There is no agreement in sight: the working
group established by the city council has not been able to reach
a consensus and the intersectoral working group at State level,
whose mandate ended on 1 May 2012, also failed to agree on amendments.
The Office of the High Representative organised around 100 meetings
with the various political parties, but to no avail.
62. The mandate of the 35 members of the city council expired
on 5 November 2012. The election law is perfectly clear in this
regard: there is no possibility for the city council to act ad interim until elections can be organised.
The decision of the city councillors to extend both their own and
the mayor’s mandate is therefore legally questionable, to say the
least, as are the two decisions of the city council on temporary
financing for the first three months of 2013, without participation
of the Croat members. The caretaker mayor, a Croat, challenged these
two decisions before the Federation Constitutional Court.
63. Under intense pressure from the unions, the caretaker mayor
then proclaimed a budget for 2013 on 8 April. Criminal charges were
brought against him for abuse of office and he refrained from making
any payments. It was only after the criminal charges were dropped
that the first payment of the January salaries was made, in May
2013.
64. Neither the BiH Central Election Commission nor the BiH Court
has ruled on the question of the Mostar councillors’ mandate. The
BiH Parliamentary Assembly to date, more than three years later,
has not adopted the necessary amendments to the election law, and
it has not even replied to a request for an authentic interpretation
of the election law submitted to it in December 2012.
65. The situation in Mostar is unacceptable and has created great
hardship for the population, especially the most vulnerable. It
also illustrates a growing trend not to abide by judgments of the
Constitutional Court, which are, according to the Constitution,
final and binding. We have been informed that, between 2005 and
2013, the BiH Constitutional Court reported to the Prosecutor’s
Office 80 cases where its judgments have not been implemented. This
is normally a criminal offence, punishable by five years in prison.
However, nobody has been prosecuted to date.
66. The situation in Mostar shows the increasingly bitter ethnic
power struggle in Bosnia and Herzegovina at all levels, and the
utter inability of the political stakeholders to shoulder their
responsibilities.
67. Another negative development is the decision of Mostar’s Cantonal
Court of 19 June 2013 to overturn a landmark ruling of Mostar’s
Municipal Court of 27 April 2012 ordering municipalities and schools
in Stolac and Caplijna
Note to end the practice of two
schools under one roof and to provide children with an integrated
and joint curriculum by 1 September 2012. This ruling was overturned
because the lawsuit had been brought by a non-governmental organisation
(NGO) and not by the parents themselves. We remind Bosnia and Herzegovina
that ending segregation in schools is an accession commitment.
6 The situation in
Srebrenica and the Brčko district
68. We travelled in early June 2013 to Srebrenica and
the Brčko district. We stopped in Tuzla to visit the morgue and
the DNA identification laboratory of the International Commission
for Missing Persons, which, since the war, has managed to identify
around two thirds of the 30 000 missing persons in BiH.
69. We also went to the Potocari memorial site to pay our respects
to the 8 000 victims of the genocide that took place there, and
in neighbouring villages, in July 1995, and to meet with representatives
of victims’ associations. Yet another 520 recently exhumed victims
were laid to rest on 11 July 2012, and another 409 on 11 July 2013.
Note We
therefore condemn in the strongest possible terms the continued
statements of Republika Srpska authorities denying that genocide
actually took place. RS politicians should be obliged to visit the morgue
in Tuzla and the Potocari memorial every year.
70. Srebrenica, one of the biggest municipalities in Bosnia and
Herzegovina (546 square kilometers) and today located in Republika
Srpska, is a place suffering under difficult social and economic
circumstances. During the war, 6 400 houses were destroyed, the
industrial infrastructure ruined and left to decay, and the pre-war
population of 36 000 has dropped to 7 000. The municipality’s budget
is around 2 million euros per year, there are no jobs and the economic
situation is dire (additionally, in 2012, the area suffered from
isolation due to excessive snowfall, followed by drought, fires
and floods).
71. The 2012 local elections in Srebrenica were held without the
special arrangements in force since the end of the war (renewed
for the last time in 2008), whereby all those living in Srebrenica
in 1991, regardless of where they lived at the time of the elections,
were able to vote in the Srebrenica local elections. This was very important
for the Bosniaks, because they could not accept that the mayor of
a city where genocide had been committed could be a Serb. Serbs
are now a majority in Srebrenica, which was not the case before
the war.
72. In May 2012, a coalition of Bosniak civil groups organised
a registration campaign to get former Srebrenica residents to register
either as residents, or as absentee voters. This campaign was successful, although
contested in court by the Republika Srpska authorities.
Note The newly elected mayor
is a young Bosniak, whom we met, and who is focused on the economic
development of his municipality.
73. As our predecessors already noted in their 2004 report to
the Assembly, Brcko district provided us with a breath of fresh
air. People there may not necessarily like each other, but they
are pragmatic and focused on the common good. We visited a primary
school, where there is no segregation and where the pupils are taught both
in the Latin and Cyrillic scripts. We simply cannot understand why
the Brcko model cannot be replicated elsewhere in BIH, especially
in the Federation.
74. Maybe this is due to the important role played by the Brčko
Supervisor (always an American), in accordance with the 1999 Final
Arbitration Award, which gave him/or her comparable powers to that
of the High Representative (imposing laws or firing elected officials).
However, we note with satisfaction that the High Representative
decided on 31 August 2012 to close the Brčko Final Award Office,
in parallel with the Supervisor’s decision to suspend
Note the
exercise of his supervisory functions on the same day.
7 Constitutional
reform
7.1 The implementation
of the Sejdić and Finci judgment
75. Needless to say, the current political stalemate
has also impacted on the constitutional reform. The Joint Interim
Committee of both houses of parliament was finally set up in early
October 2011, namely one full year without any work being done on
constitutional reform since the elections. It was given excessively
short deadlines: 30 November to propose constitutional amendments
and 31 December for amendments to the election law. The committee
held 10 meetings, hearing, inter alia,
also representatives of civil society and minorities, but, on 1
December 2011, it was officially announced that no consensus could
be reached for constitutional amendments.
76. The Joint Interim Working Group of both houses of parliament,
tasked with preparing amendments to implement the Sejdić and Finci case, has not convened
since because they are waiting for a political agreement between
the party leaders.
77. The reason no consensus could be reached would appear to be
that views on both the scope and content of the amendments differ
widely and cannot be reconciled. Republika Srpska will only accept a minima amendments and only those
necessary to abide by the judgment. They propose to simply delete
the existing ethnic prefix in the BiH Constitution: one Presidency
member would still be elected from the territory of the RS, while
two would be elected from the territory of the Federation. This
is unacceptable for the HDZ parties in the Federation.
78. For election to the Presidency, Republika Srpska wishes to
maintain its system of direct election of the RS member, whereas
the Croat parties want indirect elections by parliament for the
FBiH members, in order to be sure that their candidate is elected.
Failing this, they call for a third entity so that Croats would
have their own electoral constituency. No agreement was found on
how to guarantee the right of “Others” to stand for the Presidency.
The SDA seems to be willing to agree to the Serb proposal but with
the proviso that no more than two
presidential nominees can come from the same constituent people
or others.
79. On the other hand, a consensus seems to have emerged with
regard to the Council of Peoples: a number of “Others” would be
added. How this would function in practice is not clear, but the
entity constitutions foresee a similar solution.
80. On 27 June 2012, the representatives of the executive authorities
and the main political parties attended the launch of the “High
Level Dialogue on the European Union Accession Process” (HLAP) in
Brussels upon the invitation of the European Commissioner for Enlargement
and European Neighbourhood Policy, Štefan Füle. This new initiative
aimed to help Bosnia and Herzegovina to move forward in the European
Union accession process by explaining the requirements and the methodology
of accession negotiations and concretely what is expected from Bosnia
and Herzegovina in the European Union accession process. This marked
the beginning of a much more proactive approach by the European
Union delegation in Sarajevo, which organised a great number of
meetings with political parties to facilitate a consensus on the implementation
of the Sejdić and Finci judgment.
This is a condition for the entry into force of the 2008 Stabilisation
and Association Agreement, which has already been ratified by the
then 27 European Union member States, and also for a credible application
for membership of the European Union.
81. All participants agreed on a road map, which, if timely and
successfully implemented, could have led the country to submit a
credible membership application to the European Union before the
end of 2012.
82. The authorities and political parties from Bosnia and Herzegovina
agreed, inter alia: to ensure
a political agreement on the implementation of the 2009 Sejdić and Finci judgment of the
European Court of Human Rights, to put constitutional amendment
proposals before parliament by 31 August 2012 and to change the Constitution
by November 2012. They also agreed to set up a co-ordination mechanism,
another requirement of the European Union.
83. The leaders of seven political parties met in Banja Luka on
13 July 2012 to discuss implementation of the road map, but, once
again, no agreement was reached with regard to the constitutional
amendments. In an attempt to be seen as fulfilling the road map,
three draft amendments to the Constitution were tabled in parliament
before the 31 August 2012 deadline, one by the SNSD simply deleting
the ethnic prefix, another one by the SDA, and a third by the main
Croat parties, providing for a very complicated indirect election
system to the Presidency. None of these proposals has been voted
on to date.
84. A second meeting in the framework of the “High Level Dialogue
on the European Union Accession Process” took place on 27 November
2012, mainly to discuss technical issues. The third meeting scheduled for
April 2013 was cancelled by the European Union, since no progress
had been made with the
Sejdić and Finci case
or the required co-ordination mechanism. When we visited Sarajevo
in early June 2013, we heard that the European Union was extremely
disappointed about the failure to reach a consensus for the implementation
of the agreed road map. The European Union Enlargement Commissioner,
Mr Füle, was quoted as saying that the door to the European Union
remains open, but that the BiH authorities must do their homework
first.
Note
85. We are perfectly aware that, in such a difficult political
climate, with an evident lack of trust and with repeated strident
calls for secession of one part of the country, even politicians
with the best intentions will have a hard time fulfilling the country’s
essential international obligations. But the options available are
scarce: either Bosnia and Herzegovina abides by the judgment of
the European Court of Human Rights or it will ultimately have to
leave the Council of Europe. Respect for the European Convention
on Human Rights is the primary condition for membership in the Council
of Europe, and it would be unthinkable to have the next elections,
in 2014, conducted under the same discriminatory regime.
86. For our part, we cannot understand why a single President
of the country would be anathema to all three main ethnic groups,
while some even propose to add a fourth one to remove the discrimination
of “Others”. A tripartite member Presidency, furthermore rotating
every eight months, is unheard of in the European Union member States.
87. We believe that the Dayton Constitution will ultimately need
to be completely rewritten. With hindsight, it was probably a mistake
to append a constitution to a peace treaty. The Dayton straightjacket
has been abused in the last 18 years to a point where obstruction
and stagnation have become the norm and not the exception.
7.2 Constitutional
reform in the entities
88. Constitutional reform is not only necessary at State
level, it is also much needed at the entity level. We are very concerned
over the failure, on 26 April 2012, to adopt the amendments to the
Constitution of Republika Srpska. Work on these amendments started
in 2006, the European Commission for Democracy through Law (Venice
Commission) provided an opinion in 2008, and the RS National Assembly
voted in favour in 2009. But the 29 amendments ultimately failed
in the RS Council of Peoples where, in order to pass, they had to
get the majority of each caucus (Serb, Croat, Bosniak and Others).
In the Bosniak caucus, the SDA voted against each of the 29 amendments,
including the one abolishing the death penalty. We were told by
the Speaker of the RS National Assembly that for the time being
the RS Government had no intention of restarting the constitutional reform
process.
89. The Federation Constitution dates back to 1994 and has been
amended on a number of occasions by decisions of the High Representative.
It still includes provisions on the entity ombudsman institution,
which was abolished in 2008 following the creation of a unified
ombudsman institution at State level. With its 10 cantons, each
with its own parliament, its own judiciary and its own constitution,
the system is far too cumbersome and expensive. We therefore welcome
the US-sponsored initiative to make proposals for a serious overhaul
of the Federation Constitution. A group of local experts, with the
large participation of civil society, prepared a list of 185 recommendations
and submitted them to the authorities in June this year. We hope
that these recommendations will provide a sound basis for constitutional
reform in the Federation.
8 Conclusions
90. Bosnia and Herzegovina, as we all know, is a very
complex State, with an extremely high degree of decentralisation
and very weak central institutions. It consists of two entities:
Republika Srpska (covering 49% of the territory) and the Federation
of Bosnia and Herzegovina, which is divided into 10 cantons by virtue
of the 1994 Washington agreement. There is also the autonomous Brčko
district, the status of which is the result of international arbitration
(the 1999 Brcko Final Arbitration Award).
91. Given this complex structure, when dealing with any issue,
one has to deal with five presidents, 13 prime ministers, around
180 ministers at the State, entity and cantonal level, and with
14 elected parliaments or assemblies (including Brčko, but excluding
the municipal level). Unfortunately, there is a very serious lack
of co-ordination and co-operation, even of communication, between
the various levels of government and the decision-making process
is hampered by a high number of complex mechanisms designed to prevent
outvoting by any of the three “constituent” peoples: the Bosniaks,
Serbs and Croats. State laws do not apply automatically throughout
the country, legislation in many areas is not harmonised and can
vastly differ, and there is no mechanism at the disposal of the
State to force sub-State levels to comply with laws or policy decisions.
92. We do not agree with statements to the effect that Bosnia
and Herzegovina is a special country, with an institutional straightjacket
imposed on it by foreigners in Dayton after a long and bloody war,
and that it therefore deserves special treatment. In our view, the
Dayton straightjacket has been considerably tightened by the local
politicians themselves since the war, for example through the abuse
of the double qualified majority, called entity voting. This majority
applies to everything in parliamentary procedure: setting the agenda, taking
note of annual reports, tabling motions or elections, such as the
chairman of the Council of Ministers. Nor has any attempt been made
to limit the use of the vital national interest to specific issues
that indeed affect the vital national interests of the three main
ethnic groups. Common institutions at State level are constantly contested,
criticised or systematically weakened, particularly by Republika
Srpska.
93. Although Bosnia and Herzegovina has been back-sliding in its
reform process since about 2006, despite some positive news, such
as the signing of a Stabilisation and Association Agreement (SAA)
with the European Union in June 2008 and an invitation by NATO in
April 2010 to a Membership Action Plan, the current impasse represents
the most serious crisis for the country since the end of the war
in 1995.
94. The fundamental question which Bosnia-Herzegovina will need
to address is whether power should be shared between representatives
of constituent peoples or between
representatives
from constituent
peoples, and whether it should be shared on a proportional basis
Note or on the basis of total
equality between the three constituent peoples. We think that the
concept of equality of constituent peoples is being abused and that
it is today at the origin of undemocratic power-sharing arrangements.
95. As the Assembly has pointed out many times, a solution requires
trust, a common vision of the future of the country and the political
will of all the local political stakeholders. All these have been
in short supply, to the point where people perceive the situation
as “war by other means”. This cannot continue for yet another election
cycle, with citizens being held hostage.
96. Simply muddling along and focusing only on sterile power struggles,
while counting on the apparently endless patience of the international
community, will not move the country forwards. Republika Srpska
should understand that it has no future outside of Bosnia and Herzegovina.
It should stop its repeated calls for independence, its weakening
and attacking of State-level institutions and its abuse of the entity
voting mechanism in the State parliament simply to block any legislation
it dislikes. The main Bosniak party, for its part, should stop abusing
the vital national interest mechanism, and the main Croat parties
must understand that their maximalist demands with regard to total
equality, under cover of implementing the Sejdić
and Finci judgment, risk undermining democracy to a dangerous
extent.
97. We would also like to warn that the current crisis risks having
serious consequences not only for Bosnia and Herzegovina itself,
but also with regard to its membership, or future membership, in
international organisations such as NATO or the European Union.
98. We regret to say that, as a member State of the Council of
Europe, Bosnia and Herzegovina has not lived up to the Organisation’s
expectations and has not sufficiently used its membership to learn
from the experiences and best practices of other members. Due to
the ongoing disagreement over the ethnic distribution of posts,
including in international organisations, the Presidency still has
to appoint or nominate candidates for fundamental positions in the
Council of Europe, such as the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
the Venice Commission, the European Commission against Racism and
Intolerance (ECRI), the bodies of the Framework Convention for the Protection
of National Minorities (ETS No. 157), and others. The new BiH delegation
to the Assembly, which was finally appointed in time for the Assembly's
June 2011 part-session (almost one year after the 2010 elections)
has still not elected its chairperson.
99. The utter irresponsibility of the parties which represent
the three main ethnic groups will lead to complete isolation of
the country. Already hard hit economically and financially, with
unemployment now at 44%, the country only survives by taking loans
from the IMF to finance its budgetary deficits. Croatia’s accession
to the European Union on 1 July 2013, which means BiH now has a
1 000 km border with the European Union, will pose significant challenges
which Bosnia and Herzegovina has so far been unable to deal with:
a border agreement with Croatia was signed at the very last minute,
on 18 June 2013, and the absence at State level of a ministry of
agriculture means that BiH is unable to satisfy the European Union’s
norms and standards for food safety and will no longer be able to
export its agricultural produce to Croatia.
100. The last three years have seen the worst political crisis
since the war. Institutions are paralysed and not functioning, there
is a growing and worrying trend not to abide by the rule of law
and, needless to say, this impacts respect for human rights as well.
Corruption at all levels is rife.
101. We believe the Assembly should not tolerate yet another election
in violation of the European Convention on Human Rights, more than
four years after the Sejdić and Finci judgment.
We also believe that it is high time for the political stakeholders
to live up to their obligations and commitments to the Council of Europe.
If no serious progress is recorded in due time before the October
2014 elections, we suggest not ratifying the credentials of a delegation
which will have been appointed in violation of the Convention, and asking
the Committee of Ministers to envisage suspending Bosnia and Herzegovina
from its right of representation, in accordance with Article 8 of
the Statute of the Council of Europe (ETS No. 1), given its persistent
failure to honour its obligations and commitments.
