Constitutional Court of BiH: Measure on VRS is not being respected, case with Prosecutor's Office

(Patria) - The Constitutional Court of Bosnia and Herzegovina, at today's extraordinary plenary session held electronically, passed a Decision on non-compliance with the Constitutional Court of Bosnia and Herzegovina's Decision on temporary measure number U-8/25, which was made on March 7, 2025. The Decision on non-compliance with Decision number U-8/25 was immediately forwarded to the Prosecutor's Office of Bosnia and Herzegovina after its adoption, the institution stated.

Namely, as they state, the Decision on temporary measure number U-8/25 entered into force immediately and produces legal effect from the date of entry into force of the Law on the High Judicial and Prosecutorial Council of Republika Srpska (March 6, 2025).

“In this regard, it is necessary to emphasize that, according to general legal principles, an act adopted without a legal basis or contrary to a binding court decision is considered null and void from the very beginning (ex tunc). Consequently, implementing acts adopted based on a law that currently has no legal effect cannot have legal validity. Given that by Decision number U-8/25 the Constitutional Court temporarily suspended the Law on the HJPC of Republika Srpska and prohibited the undertaking of any measures based on the contested Law on the HJPC of Republika Srpska, the contested Rulebook on the procedure for candidacy and election of the first members of the High Judicial and Prosecutorial Council of Republika Srpska is null and void, regardless of its formal publication in the 'Official Gazette of Republika Srpska',” the Constitutional Court of BiH announced.

Bearing in mind the explicit and clear provision of Article VI/5 of the Constitution of Bosnia and Herzegovina, they add, according to which the decisions of the Constitutional Court are final and binding, and among the decisions of the Constitutional Court is the Decision on temporary measure number U-8/25, and the provisions of Article 72, paragraphs (2) and (6) of the Rules of the Constitutional Court, the Constitutional Court concluded that in this case it was necessary to adopt a Decision on non-implementation of the Decision on temporary measure number U-8/25. Therefore, the Constitutional Court concluded that the Minister of Justice of Republika Srpska, Miloš Bukejlović, by his actions, i.e., by adopting the contested rulebook, did not respect the final and binding Decision of the Constitutional Court number U-8/25, thereby acting contrary to the prohibition from point 5 of the operative part of the said decision.

“The Constitutional Court reiterates that Decision number U-8/25 is in force and binds all public authorities. The Law on the HJPC of Republika Srpska remains temporarily outside legal force until the Constitutional Court makes a merits decision on the applicant's request in case number U-8/25. Accordingly, all public authorities and public office holders are prohibited from taking any actions based on that law. Therefore, the Minister of Justice, as the responsible person, did not have the authority or jurisdiction to adopt the Rulebook, nor any other act, during the period of the temporary measure, nor did they have the authority or jurisdiction to undertake any other measures based on the provisions of the Law on the HJPC of Republika Srpska, whose application has been temporarily suspended by Decision number U-8/25. At the same time, this means that the Minister of Justice was obliged to suspend all actions based on the law that was suspended, including actions aimed at publishing the adopted rulebook in the 'Official Gazette of Republika Srpska'. On the contrary, by adopting and publishing the Rulebook despite the valid Decision of the Constitutional Court number U-8/25, legal certainty has been called into question because two opposing legal situations existed simultaneously: one prohibited by the decision of the Constitutional Court as the highest judicial instance in the state of Bosnia and Herzegovina, established by the Constitution of Bosnia and Herzegovina, and the other produced by the actions of the entity of Republika Srpska, namely the Minister of Justice of Republika Srpska, which constitutes a violation of Article VI/5 of the Constitution of Bosnia and Herzegovina. By adopting the Decision on temporary measure number U-8/25 of March 7, 2025, an attempt was made to prevent precisely such a situation from occurring (op. cit., U-8/25, point 19),” the Constitutional Court of BiH states.

Finally, the Constitutional Court notes that, according to the valid laws in Bosnia and Herzegovina, acting contrary to Article VI/5 of the Constitution of Bosnia and Herzegovina, which is reflected in the non-execution of the decisions of the Constitutional Court, may entail criminal liability of the responsible persons, which further confirms the mandatory application of the decisions of the Constitutional Court. In this regard, the Constitutional Court also recalls that paragraph (1) of Article 239 of the Criminal Code of Bosnia and Herzegovina stipulates: “An official in an institution of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, Republika Srpska, Brčko District of Bosnia and Herzegovina, or in a canton, city or municipality or local community or any local administration and self-government body, or a responsible person who does not apply, implement, execute or otherwise respect a final and binding decision of the Constitutional Court of Bosnia and Herzegovina, including a decision on a temporary measure, a final and enforceable decision or a temporary measure of the Court of Bosnia and Herzegovina, the Human Rights Chamber of Bosnia and Herzegovina or the European Court of Human Rights, or who prevents or otherwise obstructs the application, implementation or execution of such a decision, shall be punished with imprisonment from six months to five years.”