Print
See related documents
Recommendation 2025 (2013) Final version
The functioning of democratic institutions in Bosnia and Herzegovina
1. The Parliamentary Assembly recalls
that, since the country’s accession to the Council of Europe in
2002, it has consistently and repeatedly urged for a constitutional
reform in Bosnia and Herzegovina, for the first time in 2004 in
its Resolution 1383 (2004) on
the honouring of obligations and commitments by Bosnia and Herzegovina
(paragraph 3).
2. The Assembly notably recalls its Resolution 1701 (2010) on the functioning
of democratic institutions in Bosnia and Herzegovina, in which it
called on the key political stakeholders to engage, before the October
2010 parliamentary elections, in a constructive dialogue about concrete
proposals for constitutional amendments, with a view to adopting
a comprehensive package of reforms abolishing, in particular, the
constitutional discriminations found by the European Court of Human
Rights in its judgment of 22 December 2009 in the case of Sejdić and Finci v. Bosnia and Herzegovina,
with regard to the prohibition of the so-called “Others” – namely members
of national minorities or people who refuse to be labelled as “constituent
peoples” (Bosniaks, Serbs or Croats) – to stand for election to
the presidency and the House of Peoples.
3. The Assembly also recalls its Resolution 1725 (2010) on the urgent
need for constitutional reform in Bosnia and Herzegovina, in which
it expressed its serious concern about the non-adoption, prior to
the 2010 elections, of the necessary amendments to the constitution
and the election law. These elections, although globally free and
fair, were thus held on the basis of a constitutional and legal
framework which is in violation of the European Convention on Human
Rights (ETS No. 5) and its protocols. This affects the democratic legitimacy
of the presidency members and the MPs elected in accordance with
a fundamentally flawed system.
4. The Assembly also recalls its Resolution 1855 (2012) on the functioning
of democratic institutions in Bosnia and Herzegovina, in which it
reminded the authorities that the Sejdić
and Finci judgment is legally binding and must be implemented.
The Assembly also warned Bosnia and Herzegovina that, if the necessary amendments
were not adopted in good time before the next elections in 2014,
the continued membership of the country in the Council of Europe
would be at stake.
5. The Assembly reiterates that the execution of the Sejdić and Finci judgment is a first
step in the comprehensive constitutional reform that is needed in
order to move away from the institutional straitjacket created by
the Dayton Constitution, towards a modern, euro-compatible and functional
democracy in which every citizen, regardless of his or her ethnic
affiliation, enjoys the same rights and freedoms. The Assembly considers,
in particular, that the restrictive quorum rules, the excessive
use of entity voting (a double qualified majority used for all decision
making in parliament) and the vague definition of the so-called
“vital national interest” – instead of preventing outvoting by any
of the ethnic groups through dialogue and search for compromise
– have been systematically abused and now hamper all decision-making
processes.
6. The Assembly strongly regrets that no credible efforts were
made by the authorities to set up, before the 2010 elections or
afterwards, a serious institutionalised process for the preparation
of a comprehensive package of constitutional amendments, in consultation
with civil society and a broad range of legal experts.
7. In this connection, the Assembly reminds the authorities
of Bosnia and Herzegovina that the non-implementation of the Sejdić and Finci judgment is not
only a failure to abide by its obligations and commitments to the
Council of Europe, but that the Stabilisation and Association Agreement
concluded with the European Union in 2008 cannot enter into force,
and that no application for candidacy to the European Union can
be submitted unless and until this judgment is implemented. The
other countries in the region are making progress, but Bosnia and
Herzegovina is lagging more and more behind.
8. The Assembly therefore strongly regrets that the political
leaders reneged on the road map agreed with the European Union on
27 June 2012 in the framework of the high-level dialogue on the
European Union accession process, by which they committed themselves
to putting constitutional amendments before parliament by 31 August
2012 and to changing the constitution by November 2012.
9. Democratically elected institutions, such as the Parliamentary
Assembly of Bosnia and Herzegovina or the tripartite presidency,
should not be under the instruction of political party leaders,
but should work according to the four-year mandate they have received
from voters. The Assembly considers that the necessary constitutional
amendments should not be negotiated behind closed doors by mainly
non-elected party leaders, but be submitted to parliament and voted
on. It therefore regrets that the three constitutional amendments submitted
to parliament in August 2012, though mutually exclusive, have not
even been submitted to a vote yet.
10. The Assembly reminds the authorities of Bosnia and Herzegovina
that, according to the standards of the Council of Europe, notably
those drawn up by the European Commission for Democracy through
Law (Venice Commission), the electoral system should not be modified
less than a year before elections, in order to allow the election
administration time to cope with the adopted changes. It is therefore
of fundamental importance that the constitutional amendments required
for the implementation of the Sejdić
and Finci judgment, and the corresponding changes to
the election law, be adopted in good time before the next elections
in October 2014 for the presidency of Bosnia and Herzegovina, the
State-level parliament, the entity parliaments and the cantonal
assemblies in the federation.
11. The Assembly will not tolerate yet another election in blatant
violation of the Sejdić and Finci judgment. The
Assembly encourages all political stakeholders in Bosnia and Herzegovina
to do everything possible in order that the country, as a member
of the Council of Europe, fulfils the requirements of the Sejdić and Finci judgment by the
end of 2013.
12. Furthermore, the Assembly asks the Committee of Ministers
to urge the authorities and political leaders of Bosnia and Herzegovina
to amend the constitution and electoral legislation in conformity
with the Sejdic and Finci judgment
without delay.
13. Finally, the Assembly recalls that constitutional reform
is indispensable for the functioning of the State, but that it is
also necessary to carry out constitutional reform at entity level.
It therefore calls on Republika Srpska to relaunch the constitutional
amendment procedure which failed to be adopted in April 2012 because of
the opposition of the Bosniak caucus in the Republika Srpska Council
of Peoples. It is unacceptable, for example, that the Republika
Srpska Constitution still provides for the death penalty.
14. The federation, the other entity in Bosnia and Herzegovina,
composed of 10 cantons, each with its own constitution and elected
cantonal assembly, also needs to adopt amendments to its constitution
as a matter of urgency, notably with regard to the deletion of the
constitutional provisions on the federation ombudsman, which is
no longer in existence following the setting up in 2008 of a unified
ombudsman institution at State level.
15. The Assembly has consistently called for a profound reform
of the federation, as the current system is not only inefficient,
but also unsustainable in times of economic and financial crisis.
The Assembly therefore urges the authorities in the federation to
seriously consider the 185 constitutional reform proposals submitted by
domestic experts, including the merger of some cantons and the redefinition
of the repartition of competences between the municipal, cantonal
and federation levels.
16. In its Resolution
1855 (2012), the Assembly strongly regretted, following
the October 2010 elections, the long delay in the constitution of
the two houses of the Parliamentary Assembly of Bosnia and Herzegovina: the
House of Representatives only started to function towards the end
of May 2011, and the House of Peoples at the beginning of June 2011.
The government at State level was formed only in February 2012,
more than 14 months after the elections.
17. The Assembly welcomes the adoption in February 2012 of the
State budget for 2011 and of the laws on census and State aid, which
are requirements of the European Partnership Agreement with the
European Union. It regrets that the census was once again postponed,
to October 2013, and recalls that Bosnia and Herzegovina is the
only country in the region, apart from “the former Yugoslav Republic
of Macedonia”, not to have held a census in 2011.
18. The Assembly is seriously concerned about the ongoing political
crisis following the break-up of the six-party coalition at State
level in May 2012, after the refusal of the Party for Democratic
Action (SDA) to vote for the 2012 budget. This crisis had its origin
in the Social Democratic Party’s (SDP) attempt – with the support
of the Party for a Better Future (SBB) and the two Croatian Democratic
Union parties (HDZ BiH and HDZ 1990) – to exclude the SDA and its
allies from governing coalitions at the State, federation and cantonal
levels, and the refusal of the latter to step aside.
19. The Assembly notes that the SDP and its coalition partners
at State level succeeded in removing the three SDA ministers from
the State-level government only in late October 2012. The SDP, SBB
and the two HDZ parties have also managed to reshuffle authorities
in four cantons and a few municipalities. However, to date, these
parties have still not managed to reshuffle the federation-level
government, despite having a significant majority in the federation
parliament, which voted no confidence in the government in both
chambers of the parliament in mid-February 2013. The SDA-dominated
Bosniak caucus has blocked implementation of the vote of no confidence
by invoking “vital national interest” in the House of Peoples of
the parliament. The vital national interest case has not yet been
ruled on, however, because missing judges to the federation Constitutional
Court and its vital national interest panel were appointed only
in late July 2013. As a result, the federation is completely paralysed
and not functioning.
20. The Assembly is also seriously concerned about a growing
disrespect for the rule of law. Republika Srpska high officials
have repeatedly attacked key State institutions such as the Bosnia
and Herzegovina Constitutional Court, the State Court and Prosecutor’s
Office, the High Judicial and Prosecutorial Council, and the Bosnia
and Herzegovina Central Election Commission. In the federation,
there have been numerous cases in which political leaders and parties
have ignored, or in some cases directly violated, requirements set
out in constitutions and laws, for the sake of political expediency.
More worrying still is the growing trend simply not to implement
judgments of the State-level Constitutional Court.
21. The Assembly in particular condemns the failure to implement
the 2010 judgment of the Constitutional Court on some specific provisions
related to the election system in Mostar, a city divided since the
end of the war. Because of the legal vacuum created by this non-implementation,
local elections could not be held in Mostar on 7 October 2012. The
mandates of the previous members of the city council thus expired
in November 2012 and the city has been without a proper budget or
legally elected officials ever since. The Assembly urges the political
stakeholders to put an end to this situation, which has created
a lot of hardship for the population. It also notes with great concern
the continuing non-implementation of the July 2012 decision of the
Constitutional Court annulling the Republika Srpska law on State
property and the long delay in the State parliament with regard
to adopting amendments to the law on the 13-digit citizen identification
number to comply with rulings of the Constitutional Court of 2011
and early 2013. This has left around 3 000 children born since March
2013 without access to health care or travel documents.
22. The Assembly considers that the current situation hampers
the completion of much-needed reforms in key sectors, such as democratic
institutions, the rule of law and human rights, and slows down the
country’s advancement on the path to European integration. The Assembly
notes that, since 2006, very little progress has been achieved in
the implementation of outstanding key commitments of Bosnia and
Herzegovina to the Council of Europe.
23. In order to end the perpetual cycle of deadlock and confrontation,
the Assembly once again calls on the authorities of Bosnia and Herzegovina
and the key political stakeholders to shoulder their responsibilities,
stop obstructionism and work constructively at the level of State
institutions.
24. The Assembly will closely follow the situation in Bosnia
and Herzegovina and take stock of the progress achieved in the implementation
of this and previous resolutions. If no progress is made on the
issues mentioned in this resolution before the end of September
2014, the Assembly will have no other possibility than to discuss
and consider, in the October 2014 part-session, further action in
its relations with Bosnia and Herzegovina.