(Patria) - Decision on preventing the entry into force of the Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina 14/23
In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) of the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in interpreting the said Agreement on Civilian Implementation of the Peace Settlement; and particularly taking into account Article II. 1. (d) of the latter Agreement, according to which the High Representative shall “assist, as he deems necessary, in resolving any difficulties which may arise in connection with civilian implementation”;
Recalling paragraph XI, 2. of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the intention of the High Representative to use his final authority in interpreting the Agreement on Civilian Implementation of the Peace Settlement to facilitate the resolution of any difficulties as stated above “by making binding decisions, as he deems necessary” on certain issues, including (under sub-paragraph (c) thereof) “measures to ensure the implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities”;
Further recalling that the United Nations Security Council has repeatedly affirmed, through its resolutions adopted under Chapter VII of the United Nations Charter, that the role of the High Representative as the final authority in the implementation of Annex 10 of the General Framework Agreement for Peace includes “the authority to make binding decisions as he deems necessary on issues elaborated by the Peace Implementation Council in Bonn on 9 and 10 December 1997;”
In the statement of the Steering Board of the Peace Implementation Council, which reiterated its full support for the High Representative in ensuring full respect for the General Framework Agreement for Peace and the execution of his mandate under Annex 10 and relevant UN Security Council resolutions;
Recalling that the UN Security Council, in Resolution 2549 (2020) “calls on the parties, in accordance with the Peace Agreement, to honour their commitment to fully cooperate with all institutions involved in the implementation of this peace settlement, as described in the Peace Agreement”;
Recalling that the Constitutional Court of Bosnia and Herzegovina is the central institution of the State of Bosnia and Herzegovina established by the Constitution of Bosnia and Herzegovina as the independent guardian of the Constitution of Bosnia and Herzegovina with exclusive jurisdiction to decide on any dispute arising under the Constitution of Bosnia and Herzegovina between entities or between Bosnia and Herzegovina and an entity or entities, or between institutions of Bosnia and Herzegovina;
Recalling that according to Article I/2 of the Constitution, Bosnia and Herzegovina “shall be a democratic state operating in accordance with the rule of law”, that Article VI.5 of the Constitution stipulates that “decisions of the Constitutional Court shall be final and binding,” and that Article III.3(b) requires entities and all their subdivisions to fully comply with the Constitution of Bosnia and Herzegovina and the decisions of its institutions;
Emphasizing that the Constitutional Court of Bosnia and Herzegovina is independent of all other authorities in Bosnia and Herzegovina and that all such authorities are obliged to respect its independence;
Recalling that the judiciary is the cornerstone of the rule of law and that its independence, professionalism and authority require it to be free from external pressure and political influence, and that such a requirement is an integral part of the fundamental democratic principle of separation of powers;
Emphasizing that the non-implementation of court decisions in general, and especially decisions of the Constitutional Court of Bosnia and Herzegovina, directly undermines the constitutional order, the rule of law and the separation of powers;
Deeply concerned that public officials and authorities are not only deliberately disregarding the decisions of the Constitutional Court of Bosnia and Herzegovina, but are also calling on and attempting to oblige responsible persons to do so;
Noting in this regard the serious attacks on the Constitutional Court of Bosnia and Herzegovina by the authorities of Republika Srpska, which seek to disable the Constitutional Court of Bosnia and Herzegovina as one of the highest institutions in the country;
Recalling that such attacks on the Constitutional Court of Bosnia and Herzegovina as one of the highest institutions of Bosnia and Herzegovina, and attempts to illegally change the constitutional order of Bosnia and Herzegovina, constitute a serious violation of the General Framework Agreement for Peace and peace and stability in the country and the region, and therefore deserve an appropriate response;
Assessing the non-appointment of judges to the Constitutional Court of Bosnia and Herzegovina by the National Assembly of Republika Srpska not as an oversight, but as a consciously adopted policy of the ruling coalition of Republika Srpska to undermine the Constitutional Court of Bosnia and Herzegovina;
Recalling that on June 19, 2023, the Constitutional Court of Bosnia and Herzegovina held an extraordinary session at which it considered the political pressure on a judge from Republika Srpska to withdraw from the Constitutional Court of Bosnia and Herzegovina, in order to further sabotage the Court, and the Court's statement in which it most strongly condemns all political pressures and calls “everyone to refrain from it”, emphasizing that: “No one, no legislative or executive body, has the constitutional authority to 'remove' a judge who has been elected as a judge of the Constitutional Court of Bosnia and Herzegovina. A judge of the Constitutional Court can only cease to hold office in the manner prescribed by the Constitution of Bosnia and Herzegovina.”;
Deeply concerned about the adoption of the Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina by the National Assembly of Republika Srpska at a special session held on June 27, 2023, attempting to ensure that decisions of the Constitutional Court of Bosnia and Herzegovina will not be applicable and enforceable in the territory of Republika Srpska and to exclude from state jurisdiction in criminal matters and the Criminal Code of Bosnia and Herzegovina, offering political “protection to individuals from possible criminal prosecution for non-application of decisions of the Constitutional Court of Bosnia and Herzegovina”;
Considering that the National Assembly of Republika Srpska, in an attempt to pass the law, included a provision aimed at undermining the jurisdiction of the state of Bosnia and Herzegovina in criminal matters, attempting to exempt certain individuals from the provisions of the Criminal Code of BiH and criminal liability under that law;
Recalling that according to the Constitution of Bosnia and Herzegovina, entities and all their subdivisions are obliged to fully comply with the BiH Constitution and state-level legislation, and that entity law cannot amend state legislation, limit it, or otherwise alter it, and that state administrative bodies are obliged to act in accordance with the laws governing their jurisdiction and work;
Convinced that the behavior described above seriously undermines the civilian implementation of the General Framework Agreement for Peace;
Taking into account and considering all the aforementioned issues, the High Representative hereby issues the following
DECISION
Preventing the entry into force of the Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina
Article 1
The legislative procedure for the adoption of the Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina, which was adopted by a vote in the National Assembly of Republika Srpska at the Eighth Special Session held on June 27, 2023, is terminated.
All acts and procedural steps adopted or completed in the legislative procedure for the adoption of the Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina, including its adoption by a vote of the National Assembly of Republika Srpska at the Eighth Special Session held on June 27, 2023, are hereby declared null and void ab initio and without any legal effect.
The Law on Non-application of Decisions of the Constitutional Court of Bosnia and Herzegovina adopted by a vote of the National Assembly of Republika Srpska at the Eighth Special Session held on June 27, 2023, shall not enter into force.
Article 2
All competent authorities and officials shall, in any way, suspend all actions and activities that would enable the entry into force and application of the Law from Article 1 of this Decision, including the proclamation of the said law and its publication in the “Official Gazette of Republika Srpska”.
Article 3
All actions and activities from Article 2 of this Decision or the application in any way of the law from Article 1 of this Decision fall within the scope of the provisions of Article 2 of the Law on Amendments to the Criminal Code of Bosnia and Herzegovina and Article 203a (Non-implementation of Decisions of the High Representative) of the Criminal Code of Bosnia and Herzegovina and may therefore be subject to criminal prosecution.
Article 4
This Decision shall prevail over inconsistent provisions of the Constitution of Republika Srpska, any law, regulation or act, existing or future. This Decision shall be directly applicable and no further action shall be required to ensure its legal effect.
Article 5
This Decision shall enter into force immediately upon publication on the official website of the Office of the High Representative.
This Decision shall be published on the official website of the Office of the High Representative and without delay published in the “Official Gazette of Bosnia and Herzegovina” and the “Official Gazette of Republika Srpska”.
Sarajevo, 01.07.2023
Christian Schmidt
High Representative
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