Explanation of the Constitutional Court of BiH on the Decision to Suspend the Contentious Laws Adopted in the NSRS

(Patria) - The Constitutional Court of Bosnia and Herzegovina held an extraordinary plenary session electronically on 7 March 2025, deciding on requests for the adoption of interim measures in cases no.: U-6/25 – applicant Kemal Ademović, Deputy Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, U-7/25 – applicant
Denis Bećirović, member of the Presidency of BiH, and U-8/25 – applicant Denis Zvizdić, Chair of the House of Representatives of the Parliamentary Assembly of BiH.
In all these cases, the Constitutional Court adopted decisions granting the applicants' requests for interim measures.

In case no. U-6/25, the Constitutional Court temporarily suspended the Law on the Special Register and Publicity of Work of Non-Profit Organisations ("Official Gazette of the RS" no. 19/25). It was determined that the decision enters into force immediately and produces legal effect from the date of entry into force of the cited law until the final decision of the Constitutional Court on the submitted request.

The Constitutional Court noted that the content of the said law, while in draft form, was analysed by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Council of Europe's Commission for Democracy through Law (Venice Commission). The Constitutional Court also referred to the OSCE statement from 2024, in which it was pointed out that the analysis concluded that the Draft Law was contrary to "the Constitution of the Republika Srpska and the Constitution of Bosnia and Herzegovina, as well as numerous
international and domestic obligations in the sphere of respect for human rights."

Therefore, without prejudging the outcome of the decision on the merits, the Constitutional Court found that there is a probable likelihood that immediately after the entry into force of this law, serious consequences would be created for such associations and foundations. The Constitutional Court emphasised that the obligation to register in a special register, marking materials, reporting foreign donations, and potential sanctions could have an immediate effect on the work of organisations, placing them in legal uncertainty and hindering their activities.

Such measures could result in a reduction of activities of civil society organisations, their closure, or the withdrawal of donors, thereby jeopardising already initiated projects, and consequently the right to freedom of association and the right to freedom of expression. Accordingly, the Constitutional Court considers that there is a real risk of irreparable harm, and that from the aspect of undeniable interests for legal certainty, human rights, and the protection of the principle of constitutionality, the adoption of an interim measure in the circumstances of the specific case has much more justification.

In case no. U-7/25, the Constitutional Court temporarily suspended the Law on Non-Application of Laws and Prohibition of Operation of Unconstitutional Institutions of BiH ("Official Gazette of the Republika Srpska" no. 19/25), the Law on Amendment of the Criminal Code of the Republika Srpska ("Official Gazette of the Republika Srpska" no. 19/25), the Decision on Measures and Tasks Arising from Unconstitutional Decisions and Actions of Unconstitutional Institutions of BiH ("Official Gazette of the Republika Srpska" no. 19/25), and the Conclusions of the Clubs of Members of Parliament of SNSD, NPS-DNS, DEMOS-SPS,
SP and US in connection with the Information on the Destruction of the Constitution of BiH, Measures and Tasks for the Purpose of Protecting the Constitution of BiH adopted at the seventeenth special session of the National Assembly of the Republika Srpska held on 26 February 2025.

Until the final decision of the Constitutional Court, the Constitutional Court temporarily suspended all acts adopted on the basis of the acts temporarily suspended by this decision, and temporarily prohibited all legislative, executive, and judicial institutions in the Republika Srpska, as well as all official or responsible persons in those institutions of the Republika Srpska or local self-government units or any body of a local self-government unit, as well as
official or responsible persons from the Republika Srpska holding office in institutions of Bosnia and Herzegovina, from taking any actions based on the acts temporarily suspended by this decision.

This decision enters into force immediately and produces legal effect from the date of entry into force of the cited laws. The Constitutional Court, inter alia, emphasised that the implementation of the cited legal acts would primarily call into question the stability of the institutions of Bosnia and Herzegovina in the sense that employees from the Republika Srpska might potentially leave their jobs due to threats of criminal sanctions.

Furthermore, this would simultaneously lead to significant problems in the subsequent realisation of the labour law status of employees in those institutions if all the said acts were declared unconstitutional.

It was emphasised that the implementation of the Law on Non-Application of Laws on Prohibition of Operation of Unconstitutional Institutions of BiH, namely: the Court of BiH, the Prosecutor's Office of BiH, the HJPCBiH and the State Investigation and Protection Agency on the territory of the Republika Srpska would call into question the principle of proper administration of justice. In this way, a legal framework is potentially created whereby suspects and accused persons for numerous criminal offences, from all over Bosnia and Herzegovina, which fall under the jurisdiction of the Court of BiH and the Prosecutor's Office of BiH, could avoid criminal prosecution by simply going to the Republika Srpska. At the same time, this law creates a likely danger that authorised officials implementing decisions of state institutions will be prevented from exercising their
competences, which could lead to conflicts between those bodies and to potential escalation that would be a threat to peace in Bosnia and Herzegovina.

The Constitutional Court found that there are sufficient reasons indicating that the implementation of the contested legal acts before the Constitutional Court decides on the submitted request for constitutional review would have serious and irreparable harmful consequences. These consequences are reflected in the existence of a danger to the constitutional and legal order and sovereignty of Bosnia and Herzegovina. In this regard, the Constitutional Court emphasised that the protection of the sovereignty, constitutional order, and stability of Bosnia and Herzegovina, including its entities, is in the interest of all parties in this
proceeding.

In case no. U-8/25, the Constitutional Court temporarily suspended the Law on the High Judicial and Prosecutorial Council of the Republika Srpska ("Official Gazette of the Republika Srpska" no. 19/25). Also, all acts adopted on the basis of the Law on the HJPC were temporarily suspended, and all legislative, executive, and judicial institutions in the Republika Srpska, as well as all official or responsible persons in those institutions of the Republika Srpska or local self-government units or any body of a local self-government unit,
as well as official or responsible persons from the Republika Srpska holding office in institutions of Bosnia and Herzegovina, were prohibited from taking any actions based on the cited law.

This decision enters into force immediately and produces legal effect from the date of entry into force of the cited law.

The Constitutional Court, inter alia, emphasised that it was established that the contested law regulates matters already regulated by the provisions of the Law on the HJPCBiH and that, in doing so, it establishes competences of the HJPCRS for the same matters for which the HJPCBiH is already competent.

The Constitutional Court recalled its practice from Decision no. U-11/08, in which it stated "that the formal transfer of competences from the entity to the state level was carried out by the Agreement, whereby the competence for establishing the High Judicial and Prosecutorial Council was transferred to the state level.

The Parliamentary Assembly adopted the contested law in an area that was transferred to the state level, thus acting within its powers under Article IV/4.a) of the Constitution of BiH." It was emphasised that the Constitutional Court reiterated this same position in its Decision no. U-2/22. The Constitutional Court pointed out that regulations relating to the area of judicial management represent one of the most important areas of regulation in every state because they ensure the independence and impartiality of the judicial system, and play a key role in maintaining the rule of law, protecting human rights and freedoms, and preserving citizens' trust in justice institutions.

Given this, a stable judicial framework is based on respect for democratic principles and legal certainty, and its disruption can
have far-reaching negative consequences for other areas of social life.
In the opinion of the Constitutional Court, the adoption of the contested law creates a serious threat to the already established judicial system.

At the same time, the Constitutional Court notes that the fact that the contested law prescribes a deadline of 90 days for the start of work of the HJPCRS, as well as deadlines for the adoption of by-laws, indicates the urgency of adopting an interim measure.

Namely, in the opinion of the Constitutional Court, the application of such provisions could lead to the creation of parallel judicial institutions and a situation in which holders of judicial functions could be faced with the stability of their function, and parties in proceedings with uncertain legality of the actions of regular courts. All these are, in the opinion of the Constitutional Court, reasons requiring urgency in adopting an interim measure in order to prevent further harmful consequences and preserve legal certainty, and to protect the uniformity of the judicial system until the final decision on the merits of the request is made.