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Report | Doc. 12222 | 27 April 2010
The urgent need for a constitutional reform in Bosnia and Herzegovina
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Summary
The Parliamentary Assembly has followed closely the developments in Bosnia and Herzegovina since January 2010, especially in the light of the urgent need for a constitutional reform in execution of the legally binding Judgment of the European Court of Human Rights in the Sejdic and Finci case. It is seriously concerned that the initiatives launched by the authorities so far have not led to any concrete results.
The Assembly is fully aware of the possible implications of the holding of the October 2010 general elections on the basis of rules which are in violation of the European Convention of Human Rights and its Additional Protocols. In such a case, it will revert to the matter with a view to taking the requisite political stance.
In the meantime, the Assembly urges the authorities of Bosnia and Herzegovina to launch, without further delay, a serious institutionalised process for the preparation of a comprehensive package of constitutional amendments, in accordance with the country’s post-accession commitments. It calls upon the authorities to be formed after the elections to make the implementation of the country’s remaining post-accession commitments, including the constitutional reform, their political priority.
A. Draft resolution
(open)1. The Parliamentary Assembly
recalls its Resolution 1701 (2010) on the functioning of democratic institutions
in Bosnia and Herzegovina in which it had called the key political
stakeholders to engage in meaningful and constructive dialogue about
concrete proposals for constitutional amendments, with a view to adopting
a comprehensive reform package, removing in particular, constitutional
discrimination against the so-called “Others” as well as the members
of the Constituent peoples who do not reside in the Entity where
their ethnic group is largely represented, before the calling of
the October 2010 general elections. It has followed closely the
developments in Bosnia and Herzegovina since the adoption of that
resolution, especially in the light of the need to amend the constitution
before the elections in execution of the legally binding judgment
of the European Court of Human Rights in the case Sejdic and Finci v. Bosnia and Herzegovina.
2. The Assembly is seriously concerned that the initiatives launched
by the authorities so far have not led to any concrete results.
Although still theoretically possible, the adoption of amendments
to the constitution before the calling of the elections appears
to be rather unlikely. Therefore, there is a serious risk that the October
2010 general elections once again will be held in violation of the
European Convention of Human Rights and its Additional Protocols,
as well as of the judgment of the Court.
3. The Assembly recalls that the revision of electoral legislation,
the elimination of constitutional discrimination against the so-called
“Others” and the representatives of Constituent peoples not residing
in the Entity where their ethnic group is widely represented in
the standing for the elections to the Presidency and to the House
of Peoples, as well as the strengthening of state institutions,
are key outstanding commitments of Bosnia and Herzegovina. Regrettably,
the Assembly notes that, since 2006, very little progress has been achieved
in the implementation of these and other commitments. This is most
disappointing, the Assembly having repeatedly called on the authorities
of Bosnia and Herzegovina to speed up the reforms and complete the
outstanding commitments.
4. As noted in previous Assembly Resolutions, the lack of constitutional
reform hampers the completion of much-needed reforms in key sectors
of democratic institutions, rule of law and human rights, and slows
down the country’s advancement on the path to Euro-Atlantic integration.
In order to end the perpetual cycle of deadlock and confrontation,
the authorities of Bosnia and Herzegovina and the key political
stakeholders must shoulder their political responsibilities, resolve
the constitutional reform deadlock and complete the outstanding post-accession
commitments as rapidly as possible.
5. The Assembly is fully aware of the possible implications of
the non-implementation of the Sejdic
and Finci Judgment before the October 2010 general elections
and of the holding of these elections on the basis of rules which
are in violation of the European Convention of Human Rights and
its Additional Protocols. In such a case, it will revert to the
matter with a view to taking the requisite political stance.
6. In the meantime, the Assembly urges the authorities of Bosnia
and Herzegovina to lose no time and launch, before the general elections
of October 2010, a serious institutionalised process for the preparation
of a comprehensive package of constitutional amendments, in accordance
with the country’s post-accession commitments, while making full
use of the expertise and recommendations of the European Commission
for Democracy through Law (Venice Commission). This institutionalised
process, based on a clear political mandate, should seek to involve
a broad range of domestic legal experts, in order to make a comprehensive analysis
of all existing proposals and produce a package of concrete amendments
which would generate consensus among the key political stakeholders.
Appropriate consultations with civil society should also be conducted
in due course. This process should continue after the elections
and the formation of new authorities which should make the implementation
of the country’s remaining post-accession commitments, including
the constitutional reform, their political priority.
7. At the same time, the Assembly stresses the importance of
full co-operation of Bosnia and Herzegovina with the Council of
Europe and urges the authorities to appoint, as rapidly as possible,
members to the Venice Commission, as well as to other Council of
Europe monitoring bodies in which the country has no member yet.
8. The Assembly calls upon all international partners and, in
particular the European Union, to fully support the proposed institutionalised
process for the preparation of constitutional amendments, in order
to speed up the country’s advancement on the road to Euro-Atlantic
Integration. It stresses the importance of Council of Europe’s participation
in the EU Western Balkans Summit to be held on 2 June 2010, with
a view to ensuring appropriate synergies with key regional and international
partners.
9. The Assembly resolves to closely follow the process of constitutional
reform in Bosnia and Herzegovina and invites its Monitoring Committee
to examine regularly the progress achieved by the authorities at
its forthcoming meetings, in order to propose to the Assembly any
further action to be taken as required by the situation.
B. Draft recommendation
(open)1. The Parliamentary Assembly
refers to its Resolution …(2010) on the urgent need for a constitutional reform
in Bosnia and Herzegovina, and recommends that the Committee of
Ministers:
1.1. takes this resolution
into account in its own periodic reporting procedure conducted by
the Group of Rapporteurs on Democracy (GR-DEM);
1.2. provides full political support to the institutionalised
process for the preparation of constitutional amendments, which
the authorities are asked to launch without further delay. This
process should bring together domestic legal experts and aim at
analysing the various existing proposals of amendments and elaborating
a comprehensive package of constitutional amendments necessary to
complete Bosnia and Herzegovina’s outstanding commitments;
1.3. develops a targeted co-operation programme, with the involvement
of the European Commission for Democracy through Law (Venice Commission)
and in co-operation with the key international partners, so as to
provide key European expertise and expert advice to the domestic
legal experts, whenever necessary;
1.4. ensures that the Council of Europe is represented at the
appropriate level at the EU Western Balkans Summit to be held on
2 June 2010.
C. Explanatory memorandum by Mr Sasi and Ms Woldseth, co-rapporteurs
(open)1. Foreword
1. At its meeting of 17 March
2010, the Monitoring Committee held an exchange of views with the
members of the parliamentary delegation of Bosnia and Herzegovina
on the follow-up to Assembly Resolution 1701 (2010) on the functioning
of democratic institutions in Bosnia and Herzegovina, in the light
of the conclusions of the visit to Bosnia and Herzegovina by the
President of the Parliamentary Assembly, held on 1-3 March 2010.
The main focus of the discussion was the implementation, before
the parliamentary elections to be held in October 2010, of a constitutional
reform required by the Judgment of the European Court of Human Rights in
the case Sejdic and Finci v. Bosnia and
Herzegovina.
2. Following the exchange of views, the Committee “instructed
the co-rapporteurs to make a fact-finding visit to the country before
the Assembly April 2010 part-session and, depending on the findings
of the co-rapporteurs, asked the Chairman of the Committee to propose
to the Bureau, on behalf of the Committee, the holding of an urgent
debate on the functioning of democratic institutions in Bosnia and
Herzegovina during the April 2010 part-session of the Assembly”. 
3. On the basis of this decision, we travelled to Bosnia and
Herzegovina on 12-13 April 2010 and held meetings with the members
of the Collegiums of both Chambers of the Parliamentary Assembly
of Bosnia and Herzegovina, the leaders of all parliamentary groups,
as well as the representatives of the international community. We
are grateful to the Parliamentary Assembly of Bosnia and Herzegovina
and to the Special Representative of the Secretary General of the
Council of Europe in Sarajevo for their valuable assistance in the
organisation of these meetings.
4. In the light of the conclusions of our visit, we addressed
a letter to the Chair of the Monitoring Committee, Mr Dick Marty,
recommending that he should request the holding of an urgent debate
on “the urgent need for a constitutional reform in Bosnia and Herzegovina”
during the Assembly April 2010 part-session. On 26 April 2010, following
a recommendation by the Bureau, the Assembly decided to hold an
urgent debate on this subject and referred the matter to the Monitoring
Committee. According to the Committee’s usual practice, we were
appointed co-rapporteurs ex-officio on
this subject.
5. The present report is three-fold: firstly, it briefly recalls
Bosnia and Herzegovina’s post-accession commitments relating to
the constitutional reform; secondly, it summarises the key developments
with respect to the constitutional reform which have occurred since
the adoption of Assembly Resolution 1701(2010); thirdly, it highlights
the implications of the non-implementation of a constitutional reform
before the elections and the possible consequences thereof at the
level of the Assembly, as well as within the wider framework of the
Council of Europe. In the concluding part of this report, we will
make some recommendations to the authorities of Bosnia and Herzegovina
with respect to this matter.
2. Brief recapitulation of Bosnia and Herzegovina’s post accession commitments relating to the constitutional reform
6. Bosnia and Herzegovina joined
the Council of Europe in 2002. Upon accession, the authorities voluntarily
took upon them a number of commitments, in addition to the general
statutory obligations resulting from membership in the Organisation.
The specific commitments are established on the basis of Assembly Opinion
234 (2002).
7. As regards state institutions and the electoral reform, in
Opinion 234 (2002), the Assembly noted that: “the state institutions
should be strengthened at the expense of the institutions at Entity
level, if need be by a revision of the constitution” (paragraph
4).
8. At the same time, in accordance with Opinion 234 (2002), the
authorities of Bosnia and Herzegovina committed themselves to: “review
within one year, with the assistance of the European Commission
for Democracy through Law (Venice Commission), the electoral legislation
in the light of Council of Europe standards, and to revise it where
necessary” (paragraph 15.iv.b).
9. In its subsequent resolutions, the Assembly has on several
occasions called upon the authorities of Bosnia and Herzegovina
to implement a constitutional reform, in order to achieve two key
objectives:
- firstly, the constitutional reform should focus on reviewing the electoral arrangements in order to “end the constitutional discrimination of all those not belonging to one of the three constituent peoples” (Assembly Resolution 1383 (2004), paragraph 3.);
- secondly, the Assembly has been stressing that the functioning of state institutions has to be improved in order to “create a modern and functional state” (Assembly Resolution 1383 (2004), paragraph 8.).
10. After the failure, in April 2006, by just two votes, of the
so-called “April package” of constitutional amendments, the Assembly
held an urgent debate and adopted Resolution 1513 (2006), addressing
a number of concrete recommendations to the authorities. The key
Assembly demands focused on adopting a new constitution, by October
2010 at the latest, in order to:
- “replace mechanisms of ethnic representation by representation based on the civic principle, notably by ending the constitutional discrimination against ‘Others’” (paragraph 20.1.);
- “find efficient and rational decision-making procedures that are not sacrificed to the principle of involving representatives of each constituent people in any decision” (paragraph 20.2.); and
- “review the territorial organisation of the state and its division into entities, cantons and municipalities and the repartition of competences between the state and the lower levels with a view to increasing efficiency and sustainability” (paragraph 20.3.).
11. In debating a general monitoring report on the honouring of
obligations and commitments by Bosnia and Herzegovina in September
2008, in Resolution 1626 (2008), the Assembly recalled its previous
demands and called upon the domestic 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” (paragraph 8.).
12. Due to the failure to implement a constitutional reform by
end of 2009, during its January 2010 part-session, the Assembly
held a debate on the functioning of democratic institutions in Bosnia
and Herzegovina and adopted Resolution 1701(2010), expressing “serious concern over the lack of progress on
the constitutional reform front” (paragraph 5.).
13. The Assembly further took note of the Judgment of the European
Court of Human Rights in the case Sejdic
and Finci v. Bosnia and Herzegovina (Applications nos.
27996/05 and 34836/06), and noted that a constitutional reform had
to be urgently implemented within a couple months, in order to hold
the October 2010 elections in accordance with the modified constitution,
complying with the European Convention of Human Rights standards.
Therefore, the Assembly urged all domestic political stakeholders
to “fully engage in a meaningful and
constructive dialogue about 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” (paragraph 9).
3. Key developments with respect to the constitutional reform which have occurred since the adoption of Assembly Resolution 1701 (2010)
3.1. At domestic level
3.1.1. Adoption of the Action Plan for the implementation of the Judgment in the Sejdic and Finci case
14. On 11 February 2010, the Council
of Ministers of Bosnia and Herzegovina instructed the Ministry of Justice
to draft an Action Plan for the implementation of the Judgment to
be prepared in co-ordination with the Ministry of Human and Minority
Rights, as well as the Ministry of Civil Affairs. The Action Plan
was examined by the Council of Ministers on 4 March and subsequently
endorsed by the Parliamentary Assembly of Bosnia and Herzegovina.
The Action Plan provided for the establishment of a thirteen-member
Working Group, bringing together the members of the Council of Ministers
and the representatives of the parliamentary groups and peoples’
caucuses in the Parliamentary Assembly of Bosnia and Herzegovina.
According to the Action Plan, the Working Group was to prepare amendments
to the Constitution by 29 March 2010. The amendments were to be
considered and approved by the Council of Ministers by 1 April 2010.
Subsequently, the same Working Group was to prepare amendments to
the Election Code, by 15 April 2010.
15. The Action Plan was forwarded to the Council of Europe Committee
of Ministers which has started the process of supervision over the
execution of the Judgment in the Sejdic
and Finci v. Bosnia and Herzegovina case.
16. We note that all political parties represented in the Parliamentary
Assembly of Bosnia and Herzegovina participated in the Working Group.
All have tabled proposals of amendments. However, in essence, the different
proposals were significantly diverging from one another. In particular,
the Party for Democratic Action (SDA) had tabled the so-called “Butmir
I” amendments from 19 October 2009 as its proposal of a comprehensive
package of constitutional amendments, aimed at executing the Sejdic and Finci Judgment as well
as strengthening the functionality of state institutions. HDZ Bosnia
and Herzegovina tabled another set of amendments for a comprehensive
reform, also inspired by the Butmir proposals, but with an alternative mechanism
for the election of the Presidency (which came down to an indirect
election of a President and two Vice-Presidents from among the members
of the House of Representatives, with a nomination of candidates by
the House of Peoples, as well as a modified and extended composition
of the House of Peoples. The Alliance of Independent Social-Democrats
(SNSD) argued that an indirect election of the members of the Presidency
from among the members of the House of Representatives would not
be acceptable and tabled a much less ambitious proposal which aimed
only at eliminating discrimination against the so-called “Others”
and representatives of the constituent peoples not residing in the
entity where their nation is largely represented in the election
to the Presidency and to the House of Peoples. The Serb Democratic
Party (SDS) also proposed a set of “minimal” amendments, aimed only
at eliminating discrimination against the so-called “Others” and representatives
of the constituent peoples not residing in the entity where their
nation is largely represented in the election to the Presidency
and to the House of Peoples. The HDZ 1990 submitted a memorandum indicating
the main lines along which constitutional amendments should be drafted
(in particular, indirect election of the members of the Presidency,
constitutional endorsement of powers transferred from the Entities to
the State, changes to the methods of decision-making in the House
of Peoples, notably, with respect to the protection of vital national
interests, the strengthening of the Parliamentary Assembly and of
the Council of Ministers, as well as the introduction of an EU integration
clause).
17. The Party for Bosnia and Herzegovina (SBiH) launched its own
initiative even before the establishment of the Working Group. SBiH’s
proposal aimed at introducing a new (fourth one) member of the Presidency
to be elected on behalf of the “Others”; in addition, 3 more delegates
nominated by the group of “Others” would be added to the House of
Peoples. Subsequently, this proposal was rejected by the Committee
on legal and constitutional affairs of the Parliamentary Assembly
of Bosnia and Herzegovina and is no longer discussed.
18. While the adoption of the Action Plan and the establishment
of the Working Group were a promising development in the beginning,
we believe that the key stakeholders did not make a serious attempt
to negotiate a proposal which could generate consensus within the
Working Group. In fact, the Working Group held only three meetings
and the political parties participating in it tabled proposals which,
in some cases, were diametrically opposed (e.g. direct v. indirect
election of the members of the Presidency). We would have hoped to
see more intense consultations between the members, as well as some
drafting work on concrete amendments. We, therefore, consider that
the establishment of the Working Group was in fact a missed opportunity.
19. According to the Electoral Code of Bosnia and Herzegovina,
elections are held in the first week of October of the election
year. The elections have to be called six months before the election
day. In this context, the deadline for the adoption of amendments
to the Constitution (and subsequently, harmonisation of the Electoral
Code with the new constitutional arrangements) is the last week
of May 2010.
20. Consequently, given the fact that the Working Group has failed
to agree on any amendments and that the positions of the key stakeholders
appear to be extremely polarised, not leaving the slightest space
for consensus, it appears that the chances of seeing the adoption
of amendments to the Constitution before the calling of the general
elections are almost inexistent. It is very likely that, in October
2010, Bosnia and Herzegovina will hold another general election
in violation of the standards of the European Convention of Human
Rights and its Additional Protocols, as well as of the Court’s binding
Judgment in the Sejdic and Finci case.
3.1.2. Proposals to postpone the date of the elections or reduce the period between the calling and the holding of general elections
21. Recently, some stakeholders
have voiced proposals aimed at changing the Electoral Code in order
to either postpone the elections (by a couple of months), or reduce
the mandatory deadline to be established between the calling of
the elections and the election day. We are not convinced that
this is a good initiative.
We are not convinced that
this is a good initiative. 22. Firstly, according to European standards, member states should
avoid changing electoral legislation 6 months before the election
day, in order to avoid undermining the credibility and the stability
of the electoral system. Secondly, reducing the period
between the calling of the elections and the election day may create
a lot of technical problems for the electoral administration, because
of the need to perform a number of mandatory activities in order
to ensure the smooth organisation of the elections. Thirdly and
finally, we do not believe that additional time could help generate
amendments to the Constitution and to the electoral framework, because,
as we said earlier, the key stakeholders do not appear to be willing
to engage in meaningful negotiations before the elections.
Secondly, reducing the period
between the calling of the elections and the election day may create
a lot of technical problems for the electoral administration, because
of the need to perform a number of mandatory activities in order
to ensure the smooth organisation of the elections. Thirdly and
finally, we do not believe that additional time could help generate
amendments to the Constitution and to the electoral framework, because,
as we said earlier, the key stakeholders do not appear to be willing
to engage in meaningful negotiations before the elections. 23. At any rate, changing the deadlines for calling and/or holding
general elections would require the adoption of amendments to the
Electoral Code. This would require a vote in both Chambers of Parliament which
would necessitate, yet again, political will and broad consensus
between key stakeholders, as the adoption of a law in Parliament
requires entity voting in both Chambers and may be subjected
to a vital-national interest procedure in
the House of Peoples.
in both Chambers and may be subjected
to a vital-national interest procedure in
the House of Peoples. 3.2. At international level
3.2.1. Efforts by Council of Europe institutions
24. On 2-4 March 2010, at their
1078th DH (Human Rights) Meeting, the
Council of Europe Ministers’ Deputies examined the implementation
of the Sejdic and Finci Judgment by
the authorities of Bosnia and Herzegovina. In the decision adopted,
the Ministers’ Deputies recalled Bosnia and Herzegovina’s commitments
to review within one year the electoral legislation in the light
of the standards of the Convention, with the assistance of the Venice
Commission, and to revise it where necessary; recalled that the
Committee of Ministers and the Parliamentary Assembly have repeatedly
asked the authorities of Bosnia and Herzegovina to bring the Constitution
into line with the requirements of the European Convention of Human
Rights and ensure that the so-called “Others” were given an effective
opportunity to stand for election to the Presidency and to the House
of Peoples; as well as strongly encouraged the authorities of Bosnia
and Herzegovina to enhance their efforts with a view to eliminating
the existing discrimination against the so-called “Others”, while taking
into consideration the opinions of the Venice Commission in elaborating
the measures to be taken. The Ministers’ Deputies also decided to
resume consideration of this case at their 1086th meeting
(DH), in June 2010.
25. At the same time, it is worth mentioning that, at their 1081st
meeting, held on 31 March 2010, the Ministers’ Deputies decided
to put the topic of “the strategic role and responsibility of the
Council of Europe: Bosnia and Herzegovina” on the agenda of the
120th Ministerial Session (to be held on 11 May 2010), as a current
political topic. We welcome this initiative which
goes in the direction of the Assembly recommendations contained
in Recommendation 1894 (2010) on the functioning of democratic institutions
in Bosnia and Herzegovina.
We welcome this initiative which
goes in the direction of the Assembly recommendations contained
in Recommendation 1894 (2010) on the functioning of democratic institutions
in Bosnia and Herzegovina. 26. On 1-3 March 2010, the President of the Parliamentary Assembly
paid an official visit to Bosnia and Herzegovina and met all key
political stakeholders with a view to facilitating dialogue on and
the adoption of amendments to the Constitution, in order to hold
the October 2010 general elections in accordance with the standards
of the European Convention of Human Rights and its Additional Protocols.
In his meetings, the President of the Assembly stated that “Bosnia
and Herzegovina urgently needs wide constitutional changes, but
that – as an immediate first step, before the October elections
– at least the provisions excluding some citizens from standing
for the Presidency and the House of Peoples should be changed”,
adding that “the country urgently needs to move forward, with functioning
institutions to address the ordinary concerns of citizens”.
27. Following the visit by the President, the Monitoring Committee
of the Assembly held, on 17 March 2010, an exchange of views with
the members of Bosnia and Herzegovina’s delegation to the Assembly
and instructed the co-rapporteurs to pay a fact-finding visit to
the country in order to examine the progress in the constitutional
reform. During this visit, which took place on 12-13 April, we met
the leaders of all political groups in both Chambers of the Parliamentary
Assembly, as well as the members of the Collegiums of both Chambers.
28. In our meetings, we stressed that the implementation of the
Sejdic and Finci Judgment before the elections was an absolute necessity.
We argued that the adoption of the necessary “minimal” amendments
to the Constitution before the election could open the way for the
implementation of a comprehensive reform after the elections, in
order to fulfil the country’s post-accession commitment to improve
the functionality of State institutions.
29. In our meetings with the leaders of parliamentary groups,
we examined the various proposals of amendments tabled within the
framework of the Working Group (see paragraph 16 above). From our discussions,
we gained the impression that the key political stakeholders were
not ready to engage in a meaningful negotiation about constitutional
amendments before the elections. At the same time, we noted that all
of them expressed willingness to resume work on a constitutional
reform immediately after the October 2010 general elections.
30. Overall, we came to the conclusion that political will to
implement a constitutional reform before the elections is lacking.
This is most disappointing, as this is not the first time that we
are facing this situation in Bosnia and Herzegovina. It is high
time that the key political stakeholders shoulder their political responsibilities.
Human rights, European integration and prosperity are not given
for free; those who strive to achieve these objectives have to work
hard to translate aspirations into concrete actions.
3.2.2. Initiatives by key international partners
31. On 22 January 2010, the European
Commissioner for Enlargement sent a letter to the Chairman of the Council
of Ministers of Bosnia and Herzegovina, Mr Nikola Spiric, requesting
information about the actions the authorities were taking in order
to implement the Judgment of the Court. This is especially important
as the abolition of constitutional discrimination against the so-called
“Others” is a condition for the implementation of the Stabilisation
and Association Agreement (SAA).
32. In this context, the Steering Board of the Peace Implementation
Council (PIC SB) noted in its Communiqué of 25 February 2010 that
“a delay in addressing the recent verdict of the European Court
of Human Rights would mean that the forthcoming elections would
take place under the conditions which are incompatible with the
European Convention of Human Rights and may therefore impact on
the SAA.” At the same time, the PIC SB “welcomed initial steps undertaken
by BiH authorities to amend the Constitution, called upon them to
complete this process in time for the next elections, and stressed
that further constitutional changes would improve BiH's political
functionality and facilitate BiH's EU aspirations”.
33. In parallel with these initiatives, the Spanish Chairmanship
of the European Union and the United States have invested themselves
in trying to bring about consensus between the key political stakeholders
about the constitutional reform. The Spanish Minister of Foreign
Affairs, Mr Miguel Angel Moratinos, and the United States Under
Secretary of State, Mr Jim Steinberg, went to Bosnia and Herzegovina
on 6-7 April to hold meetings with key political stakeholders, in
an attempt to push forward the constitutional reform and strengthen Bosnia
and Herzegovina’s leaders' commitment in their journey towards joining
Euro-Atlantic structures. It appears that, during this visit, a
proposal for a declaration by key political stakeholders about their
commitment to pursue constitutional reform after the elections was
discussed. However, there are no indications whether this proposal
would be given any follow-up. Moreover, Mr Moratinos announced that
the Spanish Chairmanship of the European Union would be organising
a conference on the Western Balkans in June 2010. This conference
should, inter alia, establish the path that Bosnian leaders will
set for the country, following the general elections in October
2010.
4. Non-implementation of a constitutional reform before the October 2010 general elections and possible implications thereof at the level of the Assembly and other Council of Europe bodies
4.1. Supervision of the execution of the Sejdic and Finci Judgment by the Committee of Ministers of the Council of Europe
34. Under Article 46 of the European
Convention of Human Rights, the High Contracting parties undertake to
abide by the final judgment of the Court in any case to which they
are parties. The final judgment shall be transmitted to the Committee
of Ministers of the Council of Europe, which shall supervise its
execution.
35. According to the Rules of Procedure of the Committee of Ministers,
a case cannot be adjourned for more than 6 months and will remain
on the Committee of Ministers’ agenda as long as the Committee of
Ministers is not satisfied with the full execution of the judgment.
The Committee of Ministers may also decide to keep a case under
review on a more regular basis, i.e. more than twice a year. On
3 March 2010, the Committee of Ministers thus decided to resume
examination of the Sejdic and Finci case already
at its June meeting.
36. The execution of the judgment may require a) payment of the
compensation and costs awarded, b) individual measures (reopening
of criminal proceedings in case of unfair trial or restitution of
property for example) and c) general measures to avoid a repetition
of the same sort of violation in the future. As noted in our report
on the functioning of democratic institutions in Bosnia and Herzegovina
(see doc. 12112 and addendum), the general measures for the execution
of this judgment require amendments to the constitutional provisions
governing the elections to the Presidency and to the House of Peoples,
as well as the revision of the corresponding provisions of the Electoral
code.
37. If the Committee of Ministers is not satisfied with the progress
made towards execution, it can issue public statements or adopt
Interim Resolutions.
38. We have to note that, even if it has taken years, on occasions,
all judgments of the Court in the last 50 years have always been
executed.
39. Of course, in this report we cannot take a position for the
Committee of Ministers. We will continue to follow closely developments
on this front.
4.2. Possible implications of the non-execution of the Sejdic and Finci judgment for the Assembly
4.2.1. Observation of the October 2010 general elections
40. According to its usual practice,
the Assembly would normally observe the general elections to be
held in October 2010, subject to receipt of an invitation from the
authorities.
41. In the last election observation report, the Assembly noted
that “the manner in which the 1 October 2006 general elections in
Bosnia and Herzegovina were conducted was generally in line with
Council of Europe standards. However, as a result of constitutional
ethnicity-based limitations to the right to stand for office, these elections
were again in violation of Protocol 12 to the European Convention
of Human Rights and Council of Europe commitments”.
42. As was seen earlier, in its Resolutions on the honouring of
obligations and commitments by, and the functioning of democratic
institutions in, Bosnia and Herzegovina, the Assembly has on two
occasions called upon the authorities to remedy this problem and
remove constitutional discrimination against the so-called “Others”
before the October 2010 general elections.
43. If no amendments to the Constitution are adopted before the
deadline for calling the elections (first week of May 2010, according
to Bosnia and Herzegovina’s Electoral Code), the 2010 general election
will be held, yet again, in violation of the European Convention
of Human Rights and its Additional Protocols as well as of the Judgment
of the European Court of Human Rights in the Sejdic
and Finci case. The Assembly would be obliged to reiterate
its assessment and recommendations from November 2006.
4.2.2. Credentials of the members of Bosnia and Herzegovina’s delegation to the Assembly to be appointed after the October 2010 general elections
44. According to the Assembly Rules
of Procedure, Bosnia and Herzegovina will have to appoint a new delegation
to the Assembly at the opening of the January 2011 part-session
of the Assembly, or at any other moment within six months of the
October 2010 general elections. The new delegation will include
the members of the House of Representatives as well as Delegates
to the House of Peoples, elected on the basis of the results of
the October 2010 general elections.
45. While the members of the House of Representatives are elected
on the basis of free, equal and universal suffrage, according to
the proportional system, the Delegates to the House of People are
elected on the basis of an indirect procedure. According to Article
IV, § 1 of the Constitution of Bosnia and Herzegovina, the House of
Peoples shall comprise 15 Delegates, two-thirds from the Federation
(including 5 Croats and 5 Bosniacs) and one third from the Republika
Srpska (5 Serbs). The Delegates from the Federation are elected
by the House of Peoples of the Federation while the Delegates from
Republika Srpska are elected by the RS National Assembly.
46. It follows from the Judgment in the Sejdic
and Finci case that, if the current constitutional provisions
are not changed, the subsequent election of the Delegates to the
House of Peoples will be done in accordance with rules that violate
Article 14 (prohibition of discrimination in the enjoyment of rights
protected by the Convention and additional protocols), taken in
conjunction with Article 3 (right to free elections) of Protocol
1 to the European Convention of Human Rights. Therefore, the democratic
legitimacy of the members of Bosnia and Herzegovina’s delegation
to the Assembly could be put in question.
4.2.3. Failure to implement a constitutional reform for Bosnia and Herzegovina’s commitments and obligations to the Council of Europe
47. As was seen above as well as
in the Assembly’s earlier reports, the strengthening of State institutions (including,
the implementation of a constitutional reform) and the elimination
of the constitutional discrimination against the so-called “Others”
in the procedure of election to the Presidency and to the House
of Peoples constitute key outstanding post-accession commitments
of Bosnia and Herzegovina.
48. While in the first four years of membership in the Council
of Europe, the Bosnian authorities and the key political stakeholders
made some efforts to fulfil these commitments (which culminated
in the preparation of the so-called “April package” of constitutional
amendments), since 2006 there has been no or only very limited progress
on this front.
49. In this context, it could be argued that there would be grounds
to say that the non-implementation of a constitutional reform and
the holding of the October 2010 elections in accordance with the
existing discriminatory constitutional provisions could be seen
as representing a “serious violation of the basic principles of
the Council of Europe” as well as a “persistent failure to honour
[the country’s] obligations and commitments”. In accordance with
the Rules of Procedure of the Assembly, these could give rise to
the non-ratification of the credentials of a national delegation
to the Assembly or the ratification of credentials together with
depriving or suspending the exercise of some of the rights of participation
or representation of members of the delegation concerned in the
activities of the Assembly and of its bodies (Rule 8 of the Rules
of Procedure).
50. As a last resort measure, the continued persistent failure
of a country to honour obligations and commitments may give rise
to the adoption by the Assembly of a Recommendation to the Committee
of Ministers requesting the latter to take appropriate action in
accordance with Article 7 and 8 of the Statute of the Council of
Europe (paragraph 12 of Resolution
1115 (1997) on the setting up of an Assembly Committee on the honouring
of obligations and commitments by member states of the Council of
Europe).
(paragraph 12 of Resolution
1115 (1997) on the setting up of an Assembly Committee on the honouring
of obligations and commitments by member states of the Council of
Europe).5. Concluding remarks and recommendations
51. As was seen above, it transpires
from our discussions that the chances for a last minute political agreement
on the constitutional reform and the execution of the Sejdic and Finci Judgment, before
the October 2010 general elections, appear to be extremely slim.
If the October 2010 elections are held in violation of the European
Convention of Human Rights and its Additional Protocols, as well
as of the Court’s Judgment, the question of the democratic legitimacy
of the members of the Presidency and Delegates to the House of Peoples will
arise. In this situation, the Assembly must stress, once more, that
Bosnia and Herzegovina is not implementing its key outstanding post-accession
commitments as well as subsequent Resolutions of the Assembly relating
to the honouring of obligations and commitments and the functioning
of democratic institutions. Moreover, within the framework of the
possible observation of the October 2010 general elections, it would
have to examine this issue again and might decide to take any measures
as may be required by the situation.
52. The aim of the Assembly’s monitoring procedure is to support
democratic changes and help the Council of Europe member states
fulfill their commitments and obligations. Sanctions are not an
instrument in this process, as long as there is room for positive
action. Therefore, in the spirit of support and constructive co-operation,
we would like to suggest that the authorities of Bosnia and Herzegovina
should, without any delay and, by all means, before the October
2010 elections, launch an institutionalised process of preparation
of constitutional amendments, in accordance with the country’s remaining
post-accession commitments and the Judgment of the Court in the Sejdic and Finci case.
53. This process should be carried out at two levels: firstly,
the authorities (both, Council of Ministers and Parliamentary Assembly)
should provide a political basis and mandate for the development
of various options of a broad constitutional reform, in accordance
with the recommendations of the Venice Commission; secondly, an
expert task force, bringing together key domestic legal experts,
should be set up in order to prepare the justification for the reform,
analyse various existing proposals, and come up with a set of concrete
amendments which could generate consensus among the key political
stakeholders. This process should continue after the elections and
the formation of new authorities which should make the implementation
of the country’s remaining post-accession commitments, including
the constitutional reform, their political priority.
54. The Assembly should follow this process very closely and take
its results into account in the monitoring of Bosnia and Herzegovina’s
obligation and post-accession commitments. It should examine the
progress made on this front at one of its future part-sessions,
for example, in April or June 2011.
55. At the same time, it should call upon the Committee of Ministers
to provide full support to this process and, where appropriate,
develop, in co-operation with the domestic authorities, a specific
co-operation programme in order to provide, when necessary, the
domestic experts involved in the preparation of amendment proposals
with targeted advice and European expertise.
Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution 1115 (1997)
Draft resolution adopted unanimously by the committee on 27 April 2010
Members of the committee: Mr Dick Marty (Chairperson), Mrs Josette Durrieu (1st Vice-Chairperson), Mr Pedro Agramunt Font de Mora (2nd Vice-Chairperson), Mrs Karin S. Woldseth (3rd Vice-Chairperson), Mr Aydin Abbasov, Mr Francis Agius, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender, Mr József Berényi, Mrs Anne Brasseur, Mr Patrick Breen, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mr Joseph Debono Grech, Mr Juris Dobelis, Mr Mátyás Eörsi, Mrs Mirjana Ferić-Vac, Mr Axel Fischer, Mrs Pernille Frahm, Mr György Frunda, Mr Giuseppe Galati, Mr Jean-Charles Gardetto, Mr Andreas Gross, Mr Michael Hagberg, Mr Michael Hancock, Mr Davit Harutyunyan, Mrs Olha Herasym’yuk, Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mrs Sinikka Hurskainen, Mr Kastriot Islami, Mr Mladen Ivanić, Mr Zmago Jelinčič Plemeniti, Mr Michael Aastrup Jensen, Mr Miloš Jevtić, Mr Tomáš Jirsa, Mrs Corien W.A. Jonker, Mr Guiorgui Kandelaki, Mr Haluk Koç, Ms Katerina Konečná, Mr Jaakko Laakso, Mr Terry Leyden, Mr Göran Lindblad, Mrs Kerstin Lundgren, Mr Pietro Marcenaro, Mr Bernard Marquet, Mr Frano Matušić, Mr Miloš Melčák, Mrs Nursuna Memecan, Mr Jean-Claude Mignon, Mr João Bosco Mota Amaral, Mr Adrian Năstase, Mrs Elsa Papadimitriou, Mr Dimitrios Papadimoulis, Ms Vassiliki Papandreou, Mr Alexander Pochinok, Mrs Marietta de Pourbaix-Lundin, Mr Christos Pourgourides, Mr John Prescott, Mrs Mailis Reps, Mr Andrea Rigoni, Mr Ilir Rusmali, Mr Armen Rustamyan, Mr Indrek Saar, Mr Kimmo Sasi, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Yanaki Stoilov, Mr Christoph Strässer, Mr Björn von Sydow, Mrs Chiora Taktakishvili, Mr Zhivko Todorov, Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr José Vera Jardim, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Gisela Wurm, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat of the committee: Mrs Nachilo, Mr Klein, Ms Trévisan, Mr Karpenko