Constitutional Court of BiH declares Election Law of RS unconstitutional

(Patria) - The Constitutional Court of BiH held its 148th plenary session today, at which it considered requests for constitutionality assessment and appeals, and considered and decided on other matters of importance to the Constitutional Court.

Among the decisions made at the plenary session, the Constitutional Court highlights:

U-12/24 - In this case, the Constitutional Court considered the requests of Denis Zvizdić, First Deputy Speaker of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, and four delegates of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina for the assessment of the constitutionality of the Election Law of Republika Srpska (Official Gazette of RS No. 61/24).

The decision found that the contested law is not in accordance with the Constitution of Bosnia and Herzegovina and the Election Law of Bosnia and Herzegovina because the contested law takes over the competencies of the institutions of Bosnia and Herzegovina.

The Constitutional Court concluded that there are no provisions in the Constitution of Bosnia and Herzegovina based on which the constitutionality of the contested law passed by the National Assembly of RS could be established.

Furthermore, the Constitutional Court recalled that the Election Law of BiH represents a "decision of the institutions of Bosnia and Herzegovina," and that entities are obliged by the BiH Constitution to respect these decisions.

Therefore, the contested law has been repealed in its entirety, and the temporary measure adopted on July 24, 2024, has ceased to be valid.

AP-509/21 (Sanjin Sefić) - In this case, the Constitutional Court concluded that the appellant's right to a fair trial, the right to an effective remedy, and the right to appeal were not violated in the proceedings that concluded with the contested judgment of the Supreme Court of the Federation of BiH.

The Constitutional Court found that the appellant enjoyed all the guarantees of the right to a fair trial in the proceedings and that the regular courts provided relevant and sufficient reasoning for their conclusions, which do not call into question the fairness of the proceedings.

Also, considering the criminal proceedings in their entirety, the Constitutional Court concluded that the media attention devoted to the disputed event did not have any impact on the final decision of the courts regarding the appellant's guilt.

AP-1117/22 (Z. J.) - In this case, the Constitutional Court concluded that the District Court in East Sarajevo and the competent administrative bodies violated the appellant's right to prohibition of discrimination in relation to the right to property when they rejected her request for recognition of a survivor's pension after her deceased common-law partner.

The Constitutional Court recalled that it has already concluded in its practice that distinguishing between married and common-law spouses regarding inheritance has no reasonable and objective justification.

In this case as well, the Constitutional Court emphasized that citizens cannot bear the negative consequences of relevant laws not being harmonized to implement the consistent commitment of the legislator from the Family Law of Republika Srpska to equalize married and common-law unions in exercising property rights of common-law spouses, including the exercise of the right to a survivor's pension.

AP-2312/22 (Federation of Bosnia and Herzegovina) - In this case, the Constitutional Court concluded that there was a violation of the appellant's right to a fair trial, annulled the contested judgment of the Supreme Court of the Federation of BiH, and upheld the judgment of the Cantonal Court in Odžak.

The Constitutional Court found that the Supreme Court, in the specific case, did not act in accordance with the Decision of the Constitutional Court of BiH No. AP-3424/20, which established arbitrariness in the previous reasoning of the Supreme Court on the issue of the retroactive effect of the decisions of the Constitutional Court of FBiH, and that it did not rectify the violation of constitutional rights.

AP-2540/24 (Serb Democratic Party) - In this case, the Constitutional Court found that the appellant's right to freedom of association was violated.

Namely, the appellant's application to participate in the 2024 Local Elections was rejected in this specific case due to the inability to submit her own bank account.

The Constitutional Court concluded that there are objective reasons for the inability to open an account in this specific case, namely the economic sanctions imposed on the appellant 20 years ago by a decision of the Office of Foreign Assets Control of the US Department of the Treasury – OFAC.

The Constitutional Court, among other things, emphasized that the imposed sanctions are economic, not political in nature, and did not result in a ban on the appellant's participation in elections or political activity.

It was highlighted that this decision of the Constitutional Court only decides whether the appellant, given the specific circumstances of the case and her role in the political scene in Bosnia and Herzegovina, should have been allowed to participate in the elections.

It was emphasized that the Constitutional Court in this specific case does not decide how the appellant will finance her participation in the elections, nor is that the subject of the specific proceedings.

However, the Constitutional Court considers that the appellant, in the circumstances of this specific case, should not have her right to participate in elections jeopardized by a strictly formalistic interpretation and application of the law by the Central Election Commission, i.e., the Court of BiH, as this would jeopardize her political activity solely because, for objective reasons, she cannot submit her own account number, but has submitted the number of another account opened based on a commission agreement solely for the purpose of financing the upcoming elections.

All decisions adopted at the plenary session will be delivered to the applicants/appellants within one month and published as soon as possible on the website of the Constitutional Court of Bosnia and Herzegovina.