Išerić: HJPC must order the processing of perpetrators of land-grabbing in Bosnia and Herzegovina

By: Dr. Sci. Enver Išerić

According to information published and available so far, the Constitutional Court of Bosnia and Herzegovina, deciding on the request of Kemal Ademović, at the time of submitting the request the Chairman of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, for the assessment of the constitutionality of the Decision on changing the purpose of forest land and temporary use of forest land for other purposes of the Government of the Federation of Bosnia and Herzegovina ("Official Gazette of FBiH" No. 89/23 and 100/23; hereinafter: the Government of FBiH), established that the contested decision is not in accordance with Articles I/1., I/2. and VI/5. of the Constitution of Bosnia and Herzegovina. It was established that the contested decision is null and void and shall cease to be valid from the day of publication of that decision in the "Official Gazette of FBiH".

The Constitutional Court ordered the Government of FBiH and the Federal Ministry of Agriculture, Water Management and Forestry to take appropriate steps to annul all decisions and activities based on the contested decision.

Deciding on the request of 13 delegates of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina for the assessment of the constitutionality of the Decision on the manner and conditions of sale of real estate owned by the Republika Srpska located within the special area of Jahorina by public bidding – auction ("Official Gazette of RS" No. 114/23), the Constitutional Court established that the contested decision is not in compliance with the provisions of Articles I/1., I/2. and VI/5. of the Constitution of Bosnia and Herzegovina. It was also established that the contested decision is null and void and shall cease to be valid from the day of publication of that decision in the "Official Gazette of RS". The Government of Republika Srpska (hereinafter: the Government of RS) and the Ministry of Trade and Tourism of Republika Srpska were ordered to take appropriate steps to annul all decisions and activities based on the contested decision. The Constitutional Court emphasized that the Government of RS disposed of state property which is under a ban on disposal and which is under the exclusive jurisdiction of the institutions of BiH.

This is undoubtedly one of the most important decisions of the Constitutional Court of Bosnia and Herzegovina, which annuls decisions and actions of entity governments, i.e., which orders the governments and competent entity ministries to annul all decisions and actions based on the contested decision.

Decisions of the Constitutional Court are final and binding. Their non-implementation constitutes a criminal offense under Article 239 of the Criminal Code of Bosnia and Herzegovina, which prescribes a prison sentence of six months to five years.

The significance of this decision of the Constitutional Court lies in the fact that it relates to specific actions of entity authorities by which state property was disposed of in an unconstitutional and illegal manner.

The specificity of the decisions of the entity governments is reflected in the fact that they are in direct contradiction with earlier decisions of the Constitutional Court which declared as unconstitutional the laws regulating the issue of state property, but also with the Law on Prohibition of Disposal of State Property.

Now we can ask the question why such a situation occurred, which caused immeasurable material damage to the state of Bosnia and Herzegovina caused by the decisions of the entity governments.

The answer, in my opinion, is very simple. Because the Prosecutor's Office of Bosnia and Herzegovina did not timely take actions to prosecute responsible persons for non-implementation of decisions of the Constitutional Court of Bosnia and Herzegovina and decisions of the High Representative relating to state property.

Paragraph (2) of Article 239 stipulates that for non-implementation of a decision of the Constitutional Court, any person who was directly or indirectly ordered to act contrary to the decisions of the Constitutional Court, and felt compelled to execute such an order, is responsible, but these persons may be punished more leniently.

This practically means that, in addition to the governments and ministries that proposed such decisions, all bodies that gave opinions on the proposals of those decisions are also responsible, as well as expert government services, which are obliged to take care of the legality and constitutionality of decisions adopted by the government. And all decisions proposed and adopted by the government must be harmonized with the legal system, on which opinions are also given by government legislative offices.

In addition, responsibility also lies with responsible persons in land registry offices who illegally and unconstitutionally changed the land registry owner, i.e., who registered state property of the state of Bosnia and Herzegovina to legal and natural persons.

And there is an extremely large number of such cases, at all levels of government.

These acts, along with threats of secession by the RS entity and proposals for "peaceful separation", also constitute an attack on the constitutional order, because an attempt was made in an unlawful manner to change the constitutional order of Bosnia and Herzegovina, which is, among other things, based on the ownership of the state of Bosnia and Herzegovina over state property. And state property is the basis for the existence and functioning of every state, including Bosnia and Herzegovina.

For an attack on the constitutional order, Article 156 of the Criminal Code of Bosnia and Herzegovina prescribes a prison sentence of at least five years.

In addition to the criminal offense of attacking the constitutional order, and non-execution of judgments of the Constitutional Court of Bosnia and Herzegovina, it is evident here that it is also a criminal offense of abuse of position and authority, because the limits of authority were exceeded, thereby enabling other persons to obtain material gain, while at the same time causing immeasurable damage to the state of Bosnia and Herzegovina.

Therefore, it is necessary for the High Judicial and Prosecutorial Council to order the Prosecutor's Office and the Court of Bosnia and Herzegovina to place all these cases, which relate to the illegal disposal of state property, at the top of their priorities, and even to form special prosecutorial teams at all levels of the organization of prosecutor's offices, which would thoroughly investigate all cases and prosecute all responsible persons.

The result of all these processes should be the annulment of all decisions and activities of all bodies at all levels of government organization, which relate to the illegal disposal and registration of state property of Bosnia and Herzegovina.

Certainly, the Council of Ministers of Bosnia and Herzegovina also bears an extremely large responsibility, which, based on earlier decisions of the Constitutional Court, was obliged to prepare and propose to the Parliamentary Assembly a law on state property.

It is high time that the debate on state property is moved from the Constitutional Court to the Prosecutor's Offices and courts.

Bearing all of the above in mind, and especially the fact that Bosnia and Herzegovina has suffered enormous and immeasurable material damage due to the illegal disposal of state property, it is necessary for the High Representative to react, who should, based on his powers arising from Annex 10 of the Dayton Peace Agreement, adopt a law on state property based on the Constitution of Bosnia and Herzegovina and the decisions of the Constitutional Court.

And Annex 10 of the Dayton Peace Agreement stipulates, among other things, that the High Representative shall "facilitate the resolution of any difficulties arising in connection with the implementation of the civilian settlement, if the High Representative deems it necessary."