The functioning of democratic institutions in Bosnia and Herzegovina
Addendum to the report
| Doc. 12112 Add.
| 25 January 2010
- Committee
- Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
- Co-rapporteur :
- Mr Kimmo SASI,
Finland, EPP/CD
- Co-rapporteur :
- Mr Mevlüt ÇAVUŞOĞLU,
Turkey, EDG
- Thesaurus
1 Foreword
1. Since the adoption by the Monitoring Committee, on
17 December 2009, of the draft report on the functioning of democratic
institutions in Bosnia and Herzegovina, several important political
developments have occurred. Some of these developments are directly
related to the subject matter of the report and require that the
committee should adopt amendments to the draft resolution and to
the draft recommendation.
2. The aim of the present addendum is to take stock of the political
developments that affect the report as well as to propose, where
appropriate, specific amendments to the draft resolution and to
the draft recommendation. If approved, we suggest that these amendments
should be tabled by the Chair of the Monitoring Committee, on the
committee’s behalf.
2 Adoption of the ruling of the European
Court of Human Rights in the case Sejdić and Finci v. Bosnia and
Herzegovina
3. On 22 December 2009, the European Court of Human
Rights issued its decision in the case
Sejdić
and Finci v. Bosnia and Herzegovina.Note The applicants, Mr Dervo Sejdić, of Roma
origin, and Mr Jakob Finci, of Jewish origin, both prominent political
figures in Bosnia and Herzegovina, complained about the violation
of their rights protected by the European Convention on Human Rights
(ECHR) and its Protocols Nos. 1 and 12, on the grounds that the
current constitutional arrangements exclude them from running for
the election to the presidency of Bosnia and Herzegovina, as well
as from the procedure of election of delegates to the House of Peoples
of the Parliamentary Assembly of Bosnia and Herzegovina, because
they do not identify themselves as belonging to one of the “constituent
peoples”. As we expected, the Court ruled that the applicants’ continued ineligibility
to stand for election to the House of Peoples lacks an objective
and reasonable justification and has therefore breached Article
14, taken in conjunction with Article 3 of Protocol No. 1 to the
ECHR. Equally, the Court held that the applicants’ ineligibility
to stand for election to the presidency of Bosnia and Herzegovina constitutes
a violation of Article 1 of Protocol No. 12 to the ECHR. In the
motivating part of the decision, the Court makes extensive reference
to the opinions of the European Commission for Democracy through
Law (Venice Commission), which demonstrate that there are mechanisms
for introducing a system of election of the members of the presidency
of Bosnia and Herzegovina and of the delegates to the House of Peoples
which would not exclude the members of various communities of Bosnia
and Herzegovina from the political process, while preserving the
power-sharing mechanisms established by the Dayton Peace Agreements
with the legitimate aim of establishing peace and dialogue between
the three main ethnic communities of Bosnia and Herzegovina – the
so-called “constituent peoples”.
4. In order to implement the Court’s judgment in this case, the
authorities of Bosnia and Herzegovina must take appropriate general
measures that, in our opinion, will require amending the constitution,
in accordance with the recommendations of the Venice Commission.
We reiterate that time is of the essence: in order to hold the forthcoming
parliamentary elections in conformity with the standards of the
ECHR, amendments to the constitution must be drafted and adopted
within the next couple of months. In this context, we urge, once
again, all political stakeholders to be fully engaged in a meaningful
and constructive dialogue about concrete proposals for amendments
to the constitution, in line with the 2005 recommendations of the
Venice Commission, with a view to adopting a reform package in time
for the 2010 parliamentary elections which should be organised in
accordance with the revised constitution.
3 Adoption of the law on the cessation of the activities
of the ombudsperson’s office of the Republika Srpska
5. We welcome the adoption by the National Assembly
of the Republika Srpska (RS), on 23 December 2009, of the law on
the cessation of activities of the RS ombudsperson’s office. The
adoption of this law was one of the essential elements in the process
of the implementation of Bosnia and Herzegovina’s commitment relating
to the establishment of a single ombudsperson’s office at state
level.
Note The European Union also sees the
adoption of this law as a condition for the liberalisation of the
visa regime for Bosnia and Herzegovina’s citizens. We call upon
the competent RS authorities promptly to implement this law. At
the same time, we note that, together with the adoption of this
law, the RS National Assembly requested the RS Government to prepare legislation
on the respect of human rights in the RS, including the work of
the institutions responsible for safeguarding human rights. We shall
continue to follow this process in the near future in order to assess
the implications of this new legislation to be adopted on the functioning
of the single state-level ombudsperson’s institution.
4 The situation in the city of Mostar
6. Also, on a positive note, in accordance with the
High Representative’s recent decision,
Note 438 days after the holding of local
elections, the Mostar City Council finally elected, on 18 December
2009, Mr Ljubo Beslic (HDZ BiH) as Mayor of Mostar. Mr Beslic won
the election in the third round by obtaining 17 votes of the councillors
present, against the SDA candidate, Mr Suad Hasandedic, who received
15 votes. This election result shows that the balance of political
forces in the city council is tight and that all political stakeholders should
co-operate constructively in order to ensure the smooth running
of the affairs of the city.
7. The 2009 budget of the city of Mostar was proclaimed on 23
December 2009 by the newly elected Mayor of Mostar, as provided
for in the decision of the High Representative amending the city
statute. We now expect all political parties represented in the
city council to work on the prompt adoption of the city’s budget
for 2010.
5 Alarming escalation of political tensions in the
Republika Srpska
8. On 14 December 2009, the Government of the Republika
Srpska rejected the decision of the High Representative to extend
the mandate of international judges and prosecutors working in the
war crimes departments of the Bosnia and Herzegovina State Court
and prosecutor’s office,
Note claiming that the
High Representative had acted outside the scope of the Dayton Peace
Agreements in adopting that decision. On 28 December 2009, the National
Assembly of the Republika Srpska, meeting in an extraordinary session, considered
the government’s position and adopted its own conclusions. In these
conclusions, the RS National Assembly rejected the High Representative’s
decision as “unacceptable, unconstitutional and illegal”. The conclusions
also obliged the RS Government to prepare amendments to the RS law
on referenda. Once amendments are adopted, the conclusions call
for the holding of a referendum on the decision of the High Representative.
9. The High Representative immediately reacted to these events,
stating that the RS Government’s position of 14 December and the
RS National Assembly’s conclusions of 28 December were in violation
of the Dayton Peace Agreements.
Note The
High Representative’s position was later on supported by the Steering
Board of the Peace Implementation Council, which issued a statement
on 8 January 2010. In this statement, the ambassadors of the members
states of the Steering Board “strongly support[-ed] the High Representative’s actions,
decisions and his ability to use his authorities to ensure full
respect for the Dayton Peace Agreement, and reiterate[-ed] that
any attempts to undermine the High Representative’s mandate under
Annex 10 [were] unacceptable.”
Note
10. We are seriously concerned by the hardening of the position
of the RS Government and of the RS National Assembly. As stated
in our report on the functioning of democratic institutions in Bosnia
and Herzegovina as well as in previous Assembly reports, we consider
that the authorities of the State of Bosnia and Herzegovina and
of the entities are under a legal obligation to implement the decisions
which are taken by the High Representative within the scope of his
mandate, as defined by the Dayton Peace Agreements and the Peace
Implementation Council and reaffirmed in the resolutions of the
UN Security Council. Moreover, this particular decision of the High
Representative was taken in place of the authorities because of
the failure of the Parliamentary Assembly of Bosnia and Herzegovina
to extend the mandate of international judges and prosecutors or
to provide for their timely replacement by domestic magistrates.
It is therefore essential to ensure the full implementation of this
decision.
11. We would like to stress, once again, that the challenging
of the decisions of the High Representative, especially by way of
conducting a referendum, does not help the country move forward,
in particular in view of the closure of the Office of the High Representative
which, as everybody agrees, should eventually happen. On the contrary,
the state and entity authorities should closely co-operate with
the High Representative in the preparation and adoption of the legislation
necessary to implement key reforms, thus ensuring the smooth implementation
of the civilian component of the Dayton Peace Agreements and preparing
the ground for closing the OHR.
6 Additional information about concerns regarding
media pluralism
12. Since the approval of our draft report on the functioning
of democratic institutions in Bosnia and Herzegovina, we were informed
of some additional concerns about the lack of media pluralism. We
were informed that the RS Government recently approved a subsidy
for local media from the entity budget, which amounts to 5 million
convertible marks. Reportedly, only the Swiss-owned newspaper Euroblic rejected the subsidy. In
the current context, we were told that the opposition parties in
the Republika Srpska have only limited possibilities to make their
voice heard in the media. This is a worrying development, especially
in the light of the imminent launch of the election campaign for
the 2010 parliamentary elections.
13. We call upon the authorities of Bosnia and Herzegovina to
guarantee media pluralism and provide equal access to the media
to all political parties, in order to guarantee a fair and unbiased
coverage of the election campaign in the run-up to the October 2010
parliamentary elections.
7 Additional information on the implementation of
the National Judicial Sector Reform Strategy
14. Since the approval of our draft report on the functioning
of democratic institutions in Bosnia and Herzegovina, the third
ministerial conference for the review of the implementation of the
National Judicial Sector Reform Strategy took place on 22 December
2009.
15. We were informed that the participants in the conference noted
that the implementation of the strategy is not progressing as well
as it should. A number of key projects have either not been implemented
or their implementation is seriously delayed. As a result, limited
or no action has been taken with regard to the harmonisation of
the procedures for the selection of the judges in the state and
entity constitutional courts; the enactment of a single law on the
prosecutor’s office in the federation; the harmonisation of the
standards and regulations pertaining to the execution of criminal
sanctions and to the prison administrations in Bosnia and Herzegovina;
the establishment of institutional capacities for strategic planning,
policy development and to support the process of regulation and
harmonisation of the justice sector with the acquis
communautaire in the state and entities’ ministries of
justice and the Brcko District Judicial Commission.
16. Moreover, it would appear that some key institutions and key
stakeholders lack commitment and do not actively participate in
the sessions of the working groups and the technical secretariat,
which further slows down the implementation of planned projects.
17. We share these concerns and call, once again, upon the authorities
of Bosnia and Herzegovina to speed up the implementation of key
reforms relating to the implementation of the remaining commitments
to the Council of Europe, in particular, as regards the National
War Crimes Strategy and the National Judicial Sector Reform Strategy.
8 Still no agreement on constitutional reform
18. Despite continued consultations at a high level between
the key domestic political stakeholders and the representatives
of the European Union and the United States, no agreement on the
constitutional reform package has been reached so far. This is unfortunate
as time is of the essence: if a constitutional reform is not implemented
in the coming months, it will be impossible to hold the forthcoming
parliamentary elections in October 2010 on the basis of new rules,
as it will not be possible to change the electoral legislation in
time. Moreover, constitutional reform is now necessary to comply
with the judgment of the European Court of Human Rights in the case
of Sejdić and Finci v. Bosnia and Herzegovina (see
paragraphs 3 and 4 above).
19. In this context, we call upon all political stakeholders to
be fully involved in meaningful discussions about a comprehensive
constitutional reform package, making full use of the expertise
of the Venice Commission.
20. At the same time, we reiterate our proposal to launch a wide
discussion, with the participation of key domestic and international
stakeholders, including the members of the Peace Implementation
Council and, in particular, the European Union institutions and
Bosnia and Herzegovina’s neighbours, about the challenges Bosnia
and Herzegovina currently has to face on the road to Euro-Atlantic
integration and the means to overcome them.
Appendix – Proposals for amendments to the draft resolution
and to the draft recommendation
1. Amendments to the draft resolution
Amendment 1
Delete paragraph 2.1.
Amendment 2
Insert a new paragraph at the end of paragraph 2 as follows:
“2.3. decentralisation reforms
and the effective devolution of sectoral competences and financial resources
to the municipalities in the Federation of Bosnia and Herzegovina
and the Republika Srpska.”
Amendment 3
In paragraph 5, insert a new sentence after the first sentence
as follows:
“It takes note of
the judgment of the European Court of Human Rights in the case Sejdić and Finci v. Bosnia and Herzegovina,
in which the Court ruled that the applicants’ continued ineligibility
to stand for election to the House of Peoples and to the Presidency
of Bosnia and Herzegovina, on the grounds that they do not identify
themselves with one of the three ‘Constituent peoples’, constitutes
a violation of Article 14, taken in conjunction with Article 3 of
Protocol 1 to the European Convention on Human Rights, and of Article
1 of Protocol 12 to the Convention. To comply with the decision
of the Court, the authorities of Bosnia and Herzegovina must implement
a constitutional reform.”
Amendment 4
In paragraph 6, in the first sentence, delete the words “within
the framework of the ‘Butmir process’” and replace them with the
words “on the constitutional reform”.
Amendment 5
Delete paragraph 10.4 and replace it with a new paragraph
as follows:
“10.4. complete the
reform of the State-level Ombudsperson’s institution by effectively
dismantling the existing Entity Ombudsperson’s institutions;”.
Amendment 6
After paragraph 10.5, insert a new paragraph 10.6 as follows:
“10.6. ensure media pluralism and
provide equal access to the media to all political parties, in order
to guarantee a fair and unbiased coverage of the election campaign
in the run up to the October 2010 parliamentary elections;”.
2. Amendment to the draft recommendation
Amendment 7
After paragraph 2.2, insert a new paragraph 2.3 as follows:
“2.3. consider launching a wide
discussion, with the participation of key domestic and international stakeholders,
including the members of the Peace Implementation Council and, in
particular, the European Union institutions and Bosnia and Herzegovina’s
neighbours, about the challenges Bosnia and Herzegovina currently
has to face on the road to Euro-Atlantic integration and the means
to overcome them.”
