Council of Ministers of BiH disempowered Presidency and usurped competencies of Parliament, criminal complaint filed

(Patria) - First and foremost, from the perspective of the rule of law, it is inadmissible for the establishment and appointment of agents who are to represent Bosnia and Herzegovina in highly sophisticated proceedings before the European Court of Human Rights to be carried out based on a by-law, i.e., based on a decision of the executive branch of government – in this case, the Council of Ministers.

In accordance with the principle of the rule of law – and especially the principle of legal certainty, which is the key content of the rule of law – state bodies can only be established by laws – adopted by the legislative authority. This is especially true when it comes to bodies that conduct court proceedings on behalf of the state (courts), or participate in court proceedings on behalf of the state (prosecutors' offices, bodies for representation before courts – public attorney's offices, agents for representation before the European Court, etc.).

Their founding act must be a law, which also grants them legal authority to represent the state in court proceedings, and the law also prescribes the conditions for the election of these bodies, their mode of operation, etc. This is then called legal authority; such bodies cannot be established by by-laws of the executive power, nor can there be "by-law authority" (and without a legal basis!) to act on behalf of the state in such proceedings!?

Just imagine if such a practice were applied to courts, prosecutor's offices, public attorney's offices, etc., so that instead of based on law, courts, prosecutor's offices, public attorney's offices, etc., were elected and operated based on by-laws of the executive power – which can be changed every week at every session of the Council of Ministers, far from public view, by political officials appointed by political parties, so that the conditions for election to these positions are adapted to individuals or proceedings to be conducted – on a case-by-case basis and the like.

All of this happened precisely in the case of appointing agents to represent BiH in proceedings before the European Court of Human Rights, and then, even such an unconstitutional decision – which establishes such an important body that represents the state in court proceedings before the European Court – was violated, and attempts were made to cover it up by subsequent amendments, retroactive appointments, all in a completely non-transparent manner, behind closed doors of the executive power.

This has led to an unconstitutional disruption "in favor of the executive power," i.e., to the executive power – in this case, the Council of Ministers of BiH – unconstitutionally taking over the constitutional competence of the legislator – in this case, the Parliamentary Assembly of BiH, which is the only competent body that can establish other state bodies by law, determine the conditions for election, prescribe the mode of operation by law, legal authorities, etc.

In this specific case, the Council of Ministers has unconstitutionally encroached upon the competence of the legislative branch of power, and by its by-law, regulated a matter that must and can only be regulated by law. Such conduct of the executive power is incompatible with the principle of the rule of law, especially with the principle of legal certainty, and as such is both unconstitutional and incompatible with the fundamental legal principles – including the principle of separation of powers, on which a democratic society is based.

Such conduct is hardly recorded even in totalitarian regimes. Even in such regimes, an attempt was made to achieve at least a semblance of legality in the work and actions of state bodies. It seems that the Council of Ministers of BiH in the 21st century and in the heart of Europe is openly and without concealment introducing a model of state governance through its own decrees – without a legal (and constitutional!) basis, which it changes, adapts from case to case, according to the profile of candidates for the positions in question, according to specific proceedings, etc., which is inherent to a state of severe totalitarianism.

Instead of using the right and obligation to propose a law by which the agent body for representing BiH before the European Court would be established, and then ensuring the implementation of that law through by-laws – adopted on the basis of that law and within the limits of the law – which is the basic function of the branch of power called "executive," the Council of Ministers decided that a law is not needed, and that they – as the executive power – will regulate it by a by-law!?

As a direct consequence of this, the Council of Ministers of BiH has intervened, deciding, in accordance with its own by-law, that it should appoint agents to represent BiH in proceedings before the European Court of Human Rights, despite the fact that this type of appointment is the competence of the Presidency of BiH according to the Constitution of BiH.

However, since there is no law – the adoption of which also involves a procedure before constitutional-legal commissions where the compliance of draft laws with the Constitution and constitutional principles is assessed – as well as other possibilities for identifying and eliminating potential unconstitutionalities in a public and transparent legislative procedure, which means that such a draft law would have to respect the constitutional competence of the Presidency of BiH in this case, the Council of Ministers, by its decree decision – a by-law – decided to disempower the Presidency of BiH and, by a by-law, take over its exclusive competence regarding the appointment of agents to represent the BiH state in proceedings before international courts (which includes the European Court of Human Rights) – which is established by the Constitution itself.

Therefore, in this case, the Council of Ministers has also taken over the competence of the constitution-maker – effectively changing the state's Constitution by its own by-law.

This type of creation of legal chaos, by domino effect and in the absence of any mechanism of mutual control and supervision between individual branches of power and institutions – which is the essence of the principle of separation of powers (which has also been grossly violated!) – has even led to the Council of Ministers repeatedly violating that same decision in the process of implementing its own (unconstitutional!) decision – and then attempting to cover up that violation by amendments and supplements to the decision, then by retroactive application, which is legally impossible – in order to unconstitutionally ensure multiple appointments of suitable persons, thereby violating the principle of equal access to public office for all citizens who meet the conditions for appointment and producing discrimination in this regard – and all of this is a consequence, as stated above, of the unconstitutional takeover of the legislator's competencies regarding the level of regulation (by by-law, instead of by law!), and the disempowerment of the constitutionally authorized body for appointment – in this case, the Presidency of BiH.

For all these reasons, and regarding the recent manipulations of the decision it made itself concerning the recent appointments to the position of acting agents for the representation of Bosnia and Herzegovina in proceedings before the European Court of Human Rights, a criminal complaint has been filed due to reasonable suspicion of possible elements of a criminal offense in this regard.

Even the Law on Administration of BiH, to which the Council of Ministers refers, allows only two appointments for acting positions, but the Council of Ministers appointed the same person four times in a row. If this is not a violation of the law and a criminal offense, what is. A particular question is, if the criminal complaint results in a verdict, who will be guilty and who will return the funds from the salaries paid to illegally and unconstitutionally appointed acting agents before the European Court of Human Rights.

Furthermore, such legal chaos requires the involvement of other competent bodies, including the Presidency of BiH, the Parliamentary Assembly of BiH, and the Commission for Combating Corruption.