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Resolution 1701 (2010) Final version
Functioning of democratic institutions in Bosnia and Herzegovina
1. Since Bosnia and Herzegovina joined
the Council of Europe in 2002, the Parliamentary Assembly has been
repeatedly calling for the implementation of a constitutional reform
with a view to improving the functioning of the country’s democratic
institutions, ensuring compliance with the European Convention on Human
Rights (ETS No. 5) (the Convention) and speeding up the necessary
reforms to complete the realisation of its remaining commitments
and obligations. In its Resolution
1626 (2008) on the honouring of obligations and commitments
by Bosnia and Herzegovina, the Assembly called upon all political
stakeholders to “re-launch dialogue about the various reform proposals
immediately after the October 2008 local election, in close co-operation
with the European Commission for Democracy through Law (Venice Commission),
with a view to drafting and adopting a new constitution before October
2010”.
2. The Assembly regrets that the lack of constitutional reform
has frequently led to deadlock within state institutions, as entity
and party agendas block the decision-making process. Perpetual confrontation
and obstructionism negatively affect Bosnia and Herzegovina’s ability
to honour its commitments to the Council of Europe. Moreover, Bosnia
and Herzegovina is lagging behind its neighbours in the process
of Euro-Atlantic integration and the gap is widening every day.
All this hampers the completion of much needed reforms, such as:
2.1. the implementation of the National
War Crime Strategy and the National Judicial Reform Strategy;
2.2. the adoption of the Revised Strategy for the Implementation
of Annex VII to the Dayton Peace Agreement;
2.3. decentralisation reforms and the effective devolution
of sectoral competences and financial resources to the municipalities
in the Federation of Bosnia and Herzegovina and the Republika Srpska.
3. The Assembly takes note of the fact that, since the adoption
of Resolution 1626 (2008),
two initiatives aimed at implementing a constitutional reform have
been launched:
3.1. the so-called
“Prud process” brought together the leaders of the key political
parties that form the ruling majority at state level and helped
resolve several outstanding issues, such as the adoption of the first
constitutional amendment on the status of the Brcko district and
the agreement on the organisation of a population census in 2011;
3.2. the so-called “Butmir process” was a joint United States
and European Union-led endeavour to generate an agreement between
key domestic political stakeholders on a package of concrete proposals relating
to the constitutional reform, as well as to the issues of apportionment
of state and defence property. Supported by the Swedish Foreign
Minister Carl Bildt, on behalf of the European Union, and Deputy
Secretary of State Jim Steinberg, on behalf of the United States,
the “Butmir package” sought to bring the domestic constitutional
order into line with the Convention and improve the functioning
of the country’s democratic institutions. The Venice Commission
was informally involved in the drafting process.
4. Regrettably, both initiatives have so far failed to produce
concrete results. The Prud process ended before any discussions
on concrete reform proposals actually started and the Butmir process
has so far failed to secure the agreement of key domestic political
stakeholders.
5. The Assembly is seriously concerned about the lack of progress
on constitutional reform. It takes note of the judgment of the European
Court of Human Rights in the case Sejdić
and Finci v. Bosnia and Herzegovina, in which the Court
ruled that the applicants’ continued ineligibility to stand for
election to the House of Peoples and to the Presidency of Bosnia
and Herzegovina, on the grounds that they do not identify themselves
with one of the three “constituent peoples”, constitutes a violation
of Article 14, taken in conjunction with Article 3 of Protocol No.
1, as well as Article 1 of Protocol No. 12 to the Convention. To
comply with the decision of the Court, the authorities of Bosnia
and Herzegovina must implement a constitutional reform. If this reform
is not implemented in the coming months, it will be impossible to
hold the parliamentary elections of October 2010 on the basis of
new rules, as it will not be possible to change the electoral legislation
in time. Thus, there is a serious risk that, following the parliamentary
elections of October 2010, the country’s institutions will once
again be formed in violation of the Convention.
6. The Assembly believes that a last-minute agreement on the
constitutional reform is still possible. It notes, however, that
the negotiations must focus on a comprehensive set of reform proposals,
endorsed by the Venice Commission and in line with the standards
of the Convention. A “piecemeal” approach based on short-term compromises
and ambiguous formulas will merely mask rather than resolve the
problems Bosnia and Herzegovina has to face.
7. The Assembly is deeply concerned by statements and possible
actions by politicians at the highest level of Republika Srpska,
which undermine state institutions and challenge the authority and
powers of the High Representative. As long as the authorities of
the state and of the entities comply with their constitutional and legal
obligations, the High Representative has no reason to use the so-called
“Bonn powers” to impose legislation. As long as obstructionism continues
and important reforms are blocked because of entity and ethnic agendas,
the High Representative should remain the final authority in the
enforcement the Dayton Peace Agreement, under the political guidance
and with the backing of the Peace Implementation Council.
8. The Assembly believes that, fourteen years after the signing
of the Dayton Peace Agreement, new challenges to the stability of
Bosnia and Herzegovina’s institutions have emerged and new approaches
and solutions should be found. Therefore, it considers that it is
high time to launch a wide discussion, with the participation of
key local and international stakeholders, including the members
of the Peace Implementation Council and in particular European Union
institutions and Bosnia and Herzegovina’s neighbours, about the challenges
Bosnia and Herzegovina currently has to face and the means to overcome
them. Such a discussion would contribute to speeding up the advancement
of the country on the path of Euro-Atlantic integration. The Council
of Europe could play a leading role in this process.
9. In the light of the above considerations, the Assembly urges
all domestic political stakeholders to fully engage in a meaningful
and constructive dialogue on concrete proposals for amendments to
the constitution, in line with the 2005 recommendations of the Venice
Commission, with a view to adopting a reform package in time for
the 2010 parliamentary elections which should be organised in accordance
with the revised constitution.
10. Moreover, the Assembly calls upon the authorities of Bosnia
and Herzegovina to:
10.1. stop obstructionism
and work constructively at the level of state institutions, in order
to speedily enact key legislation necessary to advance on the path
of Euro-Atlantic integration;
10.2. speed up the implementation of key reforms relating to
the implementation of the remaining commitments to the Council of
Europe, in particular as regards the National War Crimes Strategy
and the National Judicial Reform Strategy;
10.3. comply with the decision of the High Representative concerning
the extension of the mandate of the international judges and prosecutors
working in the war crimes chambers of the State Court and of the
Chief Prosecutor’s Office, secure the necessary funding and train
appropriate staff in order to hire, in 2013, national judges and
prosecutors to replace international officials;
10.4. complete the reform of the state-level institution of
Ombudsperson by effectively dismantling the offices of the existing
entity Ombudsperson institutions;
10.5. implement a comprehensive local government reform, with
a view to harmonising local government legislation at entity level
and, in the Federation of Bosnia and Herzegovina, between the different
cantons, in order to effectively devolve sectoral competences to
local authorities, strengthen fiscal decentralisation, build up
the capacity of local authorities and promote cross-entity intermunicipal co-operation;
10.6. ensure media pluralism and provide all political parties
with equal access to the media, in order to guarantee fair and unbiased
coverage of the election campaign in the run-up to the October 2010 parliamentary
elections;
10.7. urgently adopt the Revised Strategy for the Implementation
of Annex VII to the Dayton Peace Agreement; the funds for the implementation
of the revised strategy should be obtained in accordance with the
February 2009 decision of the Parliamentary Assembly of Bosnia and
Herzegovina;
10.8. urgently enact the legislation necessary to conduct a
nationwide population census in 2011, in accordance with the agreement
previously reached between the key stakeholders;
10.9. comply with their legal obligations with a view to completing
the implementation of the Brcko Final Award and working towards
the termination of international supervision.
11. The Assembly resolves to closely follow the situation in Bosnia
and Herzegovina and invites its Monitoring Committee, at its next
meeting prior to the April 2010 part-session, to examine the progress achieved
by the authorities of Bosnia and Herzegovina in the implementation
of this and previous Assembly resolutions, and to propose any further
action to be taken as required by the situation.