Explanation of the Court of BiH: Exclusion of Commission Member Would Not Have Led to a Different Decision

(Patria) - The Appellate Division of the Court of BiH, composed of judges Zvjezdana Antonović, as president of the panel, and Dinka Bešlagić-Čovrk and Mirsada Džindo as members of the panel, deciding on the appeal of Milorad Dodik, President of the RS, represented by his attorney Goran Bubić, a lawyer from Banja Luka, filed against the decision of the Central Election Commission of Bosnia and Herzegovina, at a closed session held on August 18, 2025, issued a ruling rejecting the appeal.

The explanation of the decision states that the termination of the mandate of Milorad Dodik, President of the RS, was established as of June 12, 2025, when the judgment of the Court of Bosnia and Herzegovina became final. Paragraph 2 of the same decision stipulated that after this decision becomes final, the Central Election Commission of Bosnia and Herzegovina will make a decision on calling and holding early elections. Milorad Dodik filed a timely appeal against this decision.

The appeal states that the Central Election Commission of BiH, when making the decision, did not discuss the substantive issue of constitutionality and legality, pointing to the retroactive application of an individual act given the fact that the judgment was served to the plaintiff on August 4, 2025, but produces legal consequences from June 12, 2025, thereby violating the basic standard of the rule of law. The appeal states that the consequence of the retroactivity of its application is not acceptable for this legal situation.

Furthermore, the appeal points out that the permanent member of the Central Election Commission of BiH, Vanja Bjelica-Prutina, is in litigation with the appellant based on her lawsuit before the Basic Court in Sokolac, and that she participated in making the CEC decision even though, according to the provisions of the Law on Administrative Procedure of BiH, she should have been recused from deciding.

The appeal specifically pointed out that the termination of the mandate according to the contested decision is contrary to the Constitution of the RS, which stipulates that the mandate of the President of the RS ends before the term for which he was elected in the case of resignation or recall. The appeal also highlights a violation of the principle of impartiality and the activities of the “illegitimate” Christian Schmidt, who imposes the criminal offense under Article 203a of the Criminal Code of BiH targeted against the appellant.

In its response to the appeal, the Central Election Commission of Bosnia and Herzegovina proposed that the Court reject the appeal as unfounded because the contested decision was made in a correct and lawful manner.

The panel of the Appellate Division of the Court of BiH concluded that the appeal was unfounded, because on August 1, 2025, the CEC of BiH received information from the Court of BiH with an attachment of the first-instance judgment of the Court of BiH dated February 26, 2025, as well as the second-instance judgment of the Appellate Panel of the Court of Bosnia and Herzegovina dated June 12, 2025, which confirmed the first-instance judgment against Milorad Dodik, by which he was finally sentenced to one year in prison for the criminal offense of failure to enforce decisions of the High Representative, under Article 203a paragraph 1, in conjunction with Articles 39, 42 and 48 of the Criminal Code of Bosnia and Herzegovina.

- Assessing the correctness and legality of the contested decision of the Central Election Commission of BiH, within the framework of the appeal allegations and the entire case file, the Appellate Panel established that the contested decision is correct and lawful for the following reasons; Namely, from the case file it appears that the CEC of BiH, acting upon the submitted final judgment, in accordance with its powers, made a decision on the termination of the appellant's mandate by correctly applying the provision of Article 1.10 paragraph (1) item 4 of the Election Law of Bosnia and Herzegovina.

The said provision stipulates that the mandate of an elected member of a governing body at all levels ends before the expiry of the term for which they were elected on the day the court judgment becomes final, by which they are sentenced to imprisonment for a term of six months or longer. Likewise, items 5 and 6 of the same paragraph of Article 1.10 of the Election Law were correctly applied, which stipulate that the mandate of an elected member of a governing body at all levels ends before the expiry of the term for which they were elected on the day the court judgment becomes final, by which a security measure prohibiting them from performing a certain profession, activity or duty that constitutes the function of an elected member in the governing body is imposed, or on the day the court judgment becomes final, by which a sentence is imposed that has as a legal consequence of the conviction the termination of that official duty and the termination of that employment relationship – states the explanation of the panel.

It adds that the appellant's allegations pointing to the retroactive application of an individual act are also unfounded.

- Namely, the finality and enforceability of court decisions are two completely different legal institutes and they do not have to occur simultaneously. The occurrence of finality implies the impossibility of challenging a court decision with ordinary legal remedies, therefore the condition for a first-instance judgment to become final is that it can no longer be challenged by appeal, and that is when the second-instance court rejects a timely filed appeal as unfounded and confirms the judgment of the first-instance court.

Thus, the finality of a second-instance judgment occurs ex nunc, which means it acquires the status of finality on the day it is rendered. Unlike finality, the condition for the enforceability of a final judgment is that it has been duly served to the parties. Finally, the provision of Article 115 of the Criminal Code of BiH stipulates that legal consequences occur on the day of finality of the judgment, which in this specific case was established as the day of rendering the second-instance judgment, i.e., June 12, 2025, as evident from the finality clause affixed to the first-instance judgment. From the above, it follows that the Central Election Commission of BiH correctly determined the date of termination of the mandate, because Article 1.10 paragraph 1 item 4 of the Election Law of BiH clearly stipulates that the mandate of an elected member of a governing body at all levels ends before the expiry of the term for which they were elected on the day the court judgment becomes final, by which they are sentenced to imprisonment for a term of 6 months or longer – it is stated in the explanation.

The panel did not specifically assess the appeal ground relating to the violation of articles of the Constitution of the RS, because the CEC of BiH is not competent to assess the constitutionality of laws, and in its work it applies exclusively the provisions of the Election Law of Bosnia and Herzegovina, as lex specialis.

- The appeal unfoundedly points out that the member of the CEC of BiH, Vanja Bjelica-Pudar, was obliged to recuse herself from deciding in this specific case, because she was in a conflict of interest due to conducting litigation in a dispute with the appellant. Namely, the provision of Article 35 item 6 of the Law on Administrative Procedure of BiH stipulates that an official shall be recused from work on a case if they are in a commercial or other business relationship with a party, which is not the case here. Moreover, if the appellant believed that conducting litigation constituted a reason for recusal within the meaning of the said provision, he had the opportunity to point this out to the CEC of BiH and request the recusal of the said commission member, which he failed to do. Finally, even if a procedural violation had been committed in the manner indicated by the appellant, this panel specifically points out that such a procedural violation, even if it existed, by its nature could not have been a violation that affected the legality and correctness of the contested decision.

Namely, the provision of Article 2.18 paragraph (2) of the Election Law of BiH stipulates that the Central Election Commission of BiH makes decisions by a two-thirds majority of the total number of members. From the response to the appeal, it appears that the contested decision was made unanimously, and that all seven members of the Central Election Commission participated in making the decision, from which it follows that the exclusion of the said Commission member would not have affected a different decision of the Central Election Commission of BiH – it is written in the explanation of the decision.