Schmidt criticizes BiH Constitutional Court over Vareš case: Investments allegedly jeopardized!?

(Patria) - High Representative Christian Schmidt is dissatisfied with the decision of the Constitutional Court of BiH which annulled the decision of the Government of the Federation of BiH that allowed the British company Adriatic Metals to clear state forest in Vareš. Schmidt also shared his dissatisfaction with the UN Security Council.

“In its decision, the Constitutional Court of Bosnia and Herzegovina gave its own interpretation of the definition of the term disposal, determining that disposal should include the use and change of purpose of forest land even when there is no change in ownership.

Furthermore, the Court emphasized that no temporary user can be considered a bona fide user and as such does not enjoy protection under the law governing property rights. This legal interpretation is far-reaching, as it can apply to any 'disposal' of state property in a broader sense, i.e., not only in relation to the direct or indirect transfer of ownership, as stipulated in the Prohibition of Disposal of State Property, but can include other transfers of rights and claims or other disposals. This could have a serious impact on current and future development and investment projects,” Schmidt wrote in his report submitted to the UN Security Council, reports Istraga.ba.

Precisely because of this, Schmidt announces that he will accelerate discussions on state property.

“Considering the significant financial implications in the context of investment and development projects, it is now even more necessary to resolve this issue in accordance with the legal principles established by the case law of the Constitutional Court of Bosnia and Herzegovina,” Schmidt stated.

Here is what it is about.

On July 11 this year, the Constitutional Court of BiH, deciding on the request of Kemal Ademović, member of the Collegium of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, determined that the Decision on changing the purpose of forest land and temporary use of forest land for other purposes by the Government of the Federation of Bosnia and Herzegovina, made last year, is not in accordance with Articles I/1, I/2, and VI/5 of the Constitution of Bosnia and Herzegovina. The same decision ordered the Government of the Federation of BiH to annul its disputed acts that were made to favor the British company Adriatic Metals to clear state forest near Vareš.

Let us remind you, in December last year, the Government of the Federation of BiH excluded state institutions when making decisions on the disposal of state property, i.e., state forests that the British company Adriatic Metals is clearing in Vareš. Forest land, the decision states, can be temporarily used for other planned purposes, in addition to forest management: for the purpose of exploiting mineral raw materials and other natural resources, during the concession agreement period.

“The concessionaire, concession holder, or investor may submit a request to the cantonal ministry for the use of forest land for other purposes if it is foreseen in the spatial development plan,” the Decision states.

It further states that “permission for the use of forest land for the purposes referred to in paragraph (1) of this point is issued in the form of a decision, made by the federal minister with the prior opinion of the Federal Forestry Administration and the consent of the Legal Representative of Bosnia and Herzegovina”.

After Istraga.ba published these documents, Kemal Ademović, a member of the Collegium of the House of Peoples of the BiH Parliament, reacted and requested the Constitutional Court of BiH to annul the disputed decision. The Constitutional Court of BiH initially, in May, made a temporary measure by which, until a final decision was made, it annulled the disputed documents of the FBiH Government. In July this year, the Constitutional Court of BiH ordered the permanent annulment of this decision. During the proceedings before the Constitutional Court of BiH, the Government of the Federation referred to the opinion of the OHR, which was allegedly the basis for making decisions that favored the British company. However, the Constitutional Court assessed this opinion as non-binding.

“Regarding the opinion of the Office of the High Representative, to which the Government referred in its response to the request, the Constitutional Court emphasizes that the opinions of the Office of the High Representative are taken into account, but they are not binding. In this specific case, the Constitutional Court is aware of the opinion that the High Representative submitted to the Government.

However, the Constitutional Court notes that the Government completely disregarded the part of the opinion which states that 'the change of purpose of forest land obviously leads to significant legal consequences for the property in question and would therefore constitute an act of disposal for which the active participation and consent of the owner is required'.

When stating its position on the possibility of granting the right of 'temporary use', the Office of the High Representative did not delve into what this use would entail, how long the 'temporary use' would last, and so on. Namely, without such indicators, a complete factual change of purpose of forest land could occur without any participation of the state as the owner of forests and forest land, which is not in accordance with the Law on Prohibition of Disposal and is therefore contrary to the Constitution of Bosnia and Herzegovina,” the explanation of the decision of the Constitutional Court of BiH states.