FOREIGN PRESSURES ON THE CONSTITUTIONAL COURT OF BiH: Reject the interim measure, Schmidt's amendments to be considered after the formation of government

SARAJEVO, (Patria) - Due to pressure from part of the international community, judges of the Constitutional Court of BiH are considering the possibility of postponing the decision on the merits of the request by the member of the BiH Presidency, Željko Komšić, who sought a review of the constitutionality of the amendments to the FBiH Constitution and the Election Law imposed on October 2 by High Representative Christian Schmidt, at the plenary session scheduled for December 1 and 2 (Thursday and Friday). For now, according to Istraga.ba, a decision on the request for an interim measure is certain. However, only a discussion on the merits might be held, while the decision would be postponed, Istraga.ba reports.

To simplify, an interim measure, also known in public as a temporary measure, is a decision that temporarily suspends the application of provisions of a law or constitution whose review has been requested. The interim measure remains in effect until a decision on the merits is made.

Thus, the member of the BiH Presidency, Željko Komšić, requested the Constitutional Court of BiH to issue an interim measure that would suspend the application of the provisions on the FBiH Constitution and the Election Law imposed by High Representative Christian Schmidt. This measure would last until the Constitutional Court of BiH considers Komšić's request for a review of the constitutionality of Schmidt's provisions.

“Western diplomats are pressuring for the request for an interim measure to be rejected at the December plenary session, while the decision on the merits would be made later, i.e., after the establishment of government at the level of the Federation of BiH under Schmidt's regulations,” said one of the interlocutors of Istraga.

If they succeed in implementing this plan, the Constitutional Court of BiH would reject the interim measure on Thursday and Friday. The discussion on the merits would be held, but a final decision would not be made. However, there is still resistance among some constitutional judges, and some of them advocate for making a final decision on the merits as well.

For the Constitutional Court of BiH to make a decision, at least five judges must vote in favor. The current composition of the Constitutional Court of BiH consists of Valerija Galić, Mirsad Ćeman, Seada Palavrić, Zlatko Knežević, Angelika Nusberger (Germany), Ledi Bianku (Albania), and Helen Keller (Switzerland). All these judges participate in the work of the plenary session of the Constitutional Court of BiH.

We remind you that the member of the BiH Presidency, Željko Komšić, requested the Constitutional Court of BiH to determine whether the amendments to the FBiH Constitution and the Election Law imposed on October 2 of this year by High Representative Christian Schmidt are in accordance with the BiH Constitution and the European Convention on Human Rights and Freedoms.

One of the provisions whose review was requested by Željko Komšić concerns the election of the President and Vice-Presidents of the Federation of BiH.

“Any group of eleven delegates from each of the constituent peoples' clubs in the House of Peoples may propose a candidate from the ranks of the respective constituent people, provided that each delegate may support only one candidate. All candidates may be elected in accordance with this article either to the position of President or to the position of Vice-President of the Federation,” reads the first article of Amendment CXX imposed by High Representative Christian Schmidt.

Thus, the High Representative imposed the same provisions of the FBiH Constitution for which the Constitutional Court of Bosnia and Herzegovina in case U14/12 had already determined were not in accordance with the BiH Constitution and the European Convention, with changes relating only to the required number of votes within the clubs of constituent peoples, excluding Others as possible candidates for these positions, thereby placing them in an identical situation as before the adoption of these decisions by the High Representative.

We remind you that the operative part of the Decision of the Constitutional Court of BiH, number U14/12, states: “The request of Željko Komšić, at the time of submission a member of the Presidency of Bosnia and Herzegovina, is partially granted. It is established that Article 80, paragraph 2, point 4 (point 1, paragraph 2 of Amendment LXXXIII) and Article 83, paragraph 4 (point 5 of Amendment XL supplemented by point 4 of Amendment LXXXIII) of the Constitution of the Republika Srpska, Article IV.B.1, Article 1, paragraph 2 (supplemented by Amendment XLI) and Article IV.B.1, Article 2, paragraphs 1 and 2 (amended by Amendment XLII) of the Constitution of the Federation of Bosnia and Herzegovina, and Articles 9.13, 9.14, 9.16, and 12.3 of the Election Law of Bosnia and Herzegovina (Official Gazette of BiH nos. 23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05, 65/05, 77/05, 11/06, 24/06, 32/07, 33/08, 37/08, 32/10, 18/13, and 7/14) are not in accordance with Article II/4 of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms,” stated in the Decision of the Constitutional Court of BiH published on May 12, 2015.

Therefore, the Constitutional Court of BiH established that Article IV.B.1, Article 2, paragraphs 1 and 2 of the Constitution of the Federation of Bosnia and Herzegovina are not in accordance with the Constitution of Bosnia and Herzegovina and the European Convention on the Protection of Human Rights.

“In the election of the President and two Vice-Presidents of the Federation of Bosnia and Herzegovina, at least one-third of the delegates from the clubs of Bosniak, Croat, or Serb delegates in the House of Peoples may nominate a President and two Vice-Presidents of the Federation of Bosnia and Herzegovina. The election of the President and two Vice-Presidents of the Federation of Bosnia and Herzegovina requires the acceptance of a joint list of three candidates for President and Vice-Presidents of the Federation, by a majority of votes in the House of Representatives, and then by a majority of votes in the House of Peoples, including a majority of each constituent people's club,” state the provisions of the Constitution of the Federation of Bosnia and Herzegovina for which the Constitutional Court of Bosnia and Herzegovina determined they are not in accordance with the European Convention.

In explaining its Decision, the Constitutional Court of Bosnia and Herzegovina established that the provisions of the Constitution of the Federation of Bosnia and Herzegovina that prevent Others from running for President and Vice-President of the Federation of BiH are contrary to the Constitution of Bosnia and Herzegovina and the European Convention. The High Representative changed the contested provisions, but the essence remained the same, which can be clearly seen from the following: “Any group of eleven delegates from each of the constituent peoples' clubs in the House of Peoples may propose a candidate from the ranks of the respective constituent people, provided that each delegate may support only one candidate. All candidates may be elected in accordance with this article either to the position of President or to the position of Vice-President of the Federation,” as stated in the provision of the FBiH Constitution imposed by the High Representative through the aforementioned amendments.

Thus, the High Representative only changed the number of delegates who must support candidates for President or Vice-Presidents of the Federation of BiH, emphasizing that only candidates from the ranks of constituent peoples can run. The citizens of Bosnia and Herzegovina from the group “Others,” due to whom the Constitutional Court of Bosnia and Herzegovina found a violation of the European Convention on the Protection of Human Rights, are again not mentioned by the High Representative, nor are they given the opportunity to nominate their candidate for either President or Vice-President of the FBiH, nor do they have any role in proposing candidates, which is done exclusively within the clubs of constituent peoples. Thus, the High Representative imposed provisions that are in direct contradiction with Decision U14/12 of the Constitutional Court of Bosnia and Herzegovina, and therefore with the Constitution of Bosnia and Herzegovina and the European Convention.

Therefore, the Constitutional Court of BiH has already once determined that the method of electing the leadership of the Federation of BiH is unconstitutional. Will the same provisions now, by almost the same judges, be declared in accordance with the European Convention on Human Rights?