Išerić Explains Legal Consequences of Conviction: Dodik Also Loses Official Position as President of the Political Organisation SNSD

Written by: Enver Išerić

Following the final verdict against Milorad Dodik handed down by the Court of Bosnia and Herzegovina, finding him guilty of the criminal offence of Failure to Enforce Decisions of the High Representative under Article 203a of the Criminal Code of Bosnia and Herzegovina, public doubts have arisen as to whether Milorad Dodik can continue to perform the function of president of the political party SNSD.

Particular doubt was caused by the High Representative's Decision suspending all budget payments for the financing of political parties for the Alliance of Independent Social Democrats (SNSD) and United Srpska. The doubt arose because Article 203a, paragraph (4) of the Criminal Code of Bosnia and Herzegovina prescribes that a conviction for this criminal offence has the following legal consequences:

“a) termination of official duty and termination of employment;
b) forfeiture of decorations;
c) prohibition from performing official duties in the legislative, executive, judicial, administrative or any body wholly or partially financed from public funds; and
d) prohibition from acquiring an official position in the legislative, executive, judicial, administrative or any body wholly or partially financed from public funds.”

If we were to use a teleological and linguistic interpretation of the High Representative's decision, we would conclude that Milorad Dodik cannot perform the function of president of SNSD either. Why?

Because the High Representative's aim was not to abolish, i.e., prohibit the financing of SNSD and United Srpska, but to suspend payments. Abolition, i.e., cessation of financing, are two different things.

The High Representative's Decision stipulates (Article 1, Paragraph 1): “All payments of budget funds for the purpose of financing the political parties SNSD and United Srpska in the Parliamentary Assembly of Bosnia and Herzegovina, the Parliament of the Federation of Bosnia and Herzegovina, the National Assembly of Republika Srpska, cantonal assemblies, city and municipal assemblies/councils and the Assembly of Brčko District of Bosnia and Herzegovina are immediately suspended.”

Paragraph 2 of the same article stipulates that the funds whose payment has been suspended shall be transferred to a special account to be opened at the Central Bank of Bosnia and Herzegovina.

Also, the High Representative's Decision stipulates that the suspension of payment of budget funds for the purpose of financing political parties provided for in paragraphs (1) and (2) of this article shall be lifted based on or following a positive assessment by the High Representative of compliance with the General Framework Agreement for Peace in Bosnia and Herzegovina, or an assessment of any other relevant circumstances that the High Representative deems justified.

In paragraph 5 of Article 1 of the High Representative's Decision, it is stipulated: “After the suspension is lifted as provided for in paragraph (3) of this article, the High Representative shall decide on the purpose of the funds accumulated in the special account.”
This means that the High Representative may, but is not obliged to, allocate all or part of the accumulated funds to these parties whose financing has been suspended.

Despite this High Representative's decision on suspending the financing of these parties from the budget, we cannot conclude that these parties are not financed from the budget, and therefore we cannot conclude that the legal consequence of the conviction, “prohibition from performing official duties in the legislative, executive, judicial, administrative or any body wholly or partially financed from public funds,” does not apply to Milorad Dodik.

These parties are financed from the budget; only their financing has been suspended. To suspend means to interrupt something. We can interrupt the delivery of something or we can stop traffic on a certain section, for example, until the damage on that section is repaired. This also follows for this case from the High Representative's decision, which stipulated that he will lift the suspension of budget fund payments when the “situation is repaired” in these political parties, i.e., when the High Representative assesses that these parties respect the Dayton Peace Agreement, or based on other relevant circumstances that the High Representative deems justified.

However, if after this we still have a doubt, and I have no such doubt, then we derive the conclusion that Milorad Dodik cannot continue to perform the function of president of SNSD from the following:

Article 203a, paragraph 5, point a) stipulates: In accordance with Articles 113 and 114 of this Law, a conviction for the criminal offences from paragraph (1) of this article has the following legal consequence of conviction:

a) termination of official duty and termination of employment;
meaning termination of official duty is not linked to financing from public funds, as is done in point c) of the law, which prescribes as a legal consequence of conviction “prohibition from performing official duties in the legislative, executive, judicial, administrative or any body wholly or partially financed from public funds.”

So, termination of official duty occurs on the day the verdict becomes final, regardless of whether that body is financed or not financed from the budget. The prohibition from performing official duties, which is conditioned by the financing of those bodies from the budget, applies to the future. This is evident from these two legal consequences of conviction, which are listed separately in the law itself.

And what does “termination of official duty and termination of employment” mean? What is official duty and what is an official person, i.e., an official?

Article 1, paragraph (3) of the Criminal Code of Bosnia and Herzegovina stipulates:
“An official person is an elected or appointed official in the bodies of the legislative, executive and judicial authorities of Bosnia and Herzegovina and in other state and administrative institutions or services performing certain administrative, professional and other tasks within the rights and duties of the authority that established them; a person who permanently or occasionally performs an official duty in the said administrative bodies or institutions; an authorised person in a business company or other legal entity to which the performance of public powers has been entrusted by law or other regulation adopted on the basis of law, and who within those powers performs a specific duty; and any other person who, with or without compensation, performs a specific official duty based on authorisation from the law or other regulation adopted on the basis of law.”

So, an official duty is performed by an official person, and an official person is also an authorised person in a business company or other legal entity.

And paragraph 15 of Article 1 of the Criminal Code, which defines basic terms, stipulates: “A legal entity is, for the purposes of this law, Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, Republika Srpska, Brčko District of Bosnia and Herzegovina, a canton, a city, a municipality, a local community, any organisational form of a business company and all forms of association of business companies, institutions, institutions for performing credit and other banking operations, for property and personal insurance, as well as other financial institutions, funds, political organisations and citizens' associations and other forms of association that can acquire funds and use them in the same way as any other institution or body that generates and uses funds and to which the status of a legal entity is recognised by law.

From all this we can conclude:

1. official duty is a duty performed by an official person in the bodies of the legislative, executive and judicial authorities of Bosnia and Herzegovina and in other state and administrative institutions or services performing certain administrative tasks, as well as in other legal entities
2. a legal entity is, in addition to the bodies of the legislative, executive and judicial authorities of Bosnia and Herzegovina and other state and administrative institutions or services, also a political organisation/party.
3. Due to the legal consequences of the conviction, Milorad Dodik's official duty as president of the political organisation SNSD ceases.