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Resolution 1626 (2008)
Honouring of obligations and commitments by Bosnia and Herzegovina
1. Bosnia and Herzegovina joined the
Council of Europe on 24 April 2002. Since then, the authorities
of this country have been steadily implementing the formal commitments
entered into upon accession. To date, Bosnia and Herzegovina has
signed and ratified 64 Council of Europe conventions.
2. The Parliamentary Assembly congratulates the authorities of
Bosnia and Herzegovina on the signing, on 16 June 2008, of the Stabilisation
and Association Agreement with the European Union, together with
the interim trade agreement. It also welcomes the signing, on 17
September 2007, of the visa facilitation agreement, as well as the
recent launching, on 5 June 2008, of the discussions between the
European Union and Bosnia and Herzegovina with a view to abolishing
visa requirements. The Stabilisation and Association Agreement offers
new opportunities for the country, including trade and financial
benefits. It should also give a fresh impetus to the long-awaited
reforms aimed at bringing the domestic legal order closer to the
European acquis in the field of democracy, the rule of law and human
rights.
3. The Assembly notes, however, that the effective implementation
of the Stabilisation and Association Agreement requires close and
efficient co-operation between various state- and entity-level structures
and institutions. This has yet to be achieved, given the complex
political and constitutional structures of Bosnia and Herzegovina.
Without proper reforms, the country will not be able to make full
use of the benefits European integration can bring.
4. In particular, the Assembly notes with concern that key reforms
are not advancing as well as they should. Since the adoption of
Assembly Resolution 1513
(2006) on constitutional reform in Bosnia and Herzegovina, no
progress has been made on this front. Without a fully fledged constitutional
reform, the police reform, which was one of the preconditions for
the signing of the Stabilisation and Association Agreement with
the European Union, will be blocked and the recently adopted legislation
may become inoperative. Constitutional revision is also required
to implement key reforms in areas where the distribution of competences
between the entities and the state needs to be changed. The entity
voting system in the House of Representatives and the excessively
broad scope of the “vital national interests” clause, together with
the related veto mechanism in the House of Peoples, must be reformed
for Bosnia and Herzegovina to become a genuine civic state for all
those living in it. Members of Parliament should act as free and
democratically elected representatives of all the citizens of Bosnia
and Herzegovina and not as defenders of purely ethnic interests.
The so-called “Others” should be given an effective opportunity
to participate fully in political life, by running in the election
for members of the presidency and participating in the designation
of delegates to the House of Peoples.
5. Equally, the Assembly is concerned by the increase in nationalist
and ethnic rhetoric, especially in the context of the campaign for
the October 2008 local elections and in the wake of the adoption
by the Kosovo Assembly of the unilateral declaration of independence.
In particular, the Assembly strongly condemns the resolution adopted
by the National Assembly of the Republika Srpksa on 21 February
2008, in which it referred to the possibility of holding a referendum
on self-determination. Such declarations contradict the Dayton Peace Agreement,
which does not give the entities the right to secede. Therefore,
the Assembly strongly urges all political stakeholders to refrain
from statements and actions constituting an incitement to secession
or calling the existence of the state based on entities into question.
The Kosovo case cannot be used as a precedent.
6. Moreover, the Assembly condemns recent initiatives by the
authorities of the Republika Srpska which undermine and weaken the
state institutions. This applies in particular to the adoption of
the Republika Srpska law on conflict of interest; the implementation
of the law is entrusted to the Republika Srpska Election Commission,
which so far has not performed this function and has no real reason
to exist after the codification of the electoral legislation at
state level. Equally, the adoption in the first reading by the Republika
Srpska National Assembly of a draft law aimed at creating the office
of a Republika Srpska-specific ombudsperson for children’s rights
undermines the powers of the merged Bosnia and Herzegovina State
Ombudsperson’s Office, which is supposed to perform the very same
function.
7. The Assembly considers that the authorities of Bosnia and
Herzegovina should step up efforts aimed at implementing the country’s
remaining obligations and commitments to the Council of Europe.
While respecting the entities’ and the Brčko District’s autonomy,
the necessary reforms should be implemented on the basis of a shared
vision of the development of the country’s institutions. Constructive
dialogue should replace obstructionism. State structures in key
reform areas should be reinforced and not undermined. Entity institutions,
especially in the Federation of Bosnia and Herzegovina, should be
further reformed in a spirit of cost-effectiveness and with the
aim of ensuring coherent policy making and enforcement of the legislation
at all levels of public institutions.
8. In particular, as regards constitutional reform, the Assembly
calls upon all the 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, as previously
recommended by the Assembly in Resolution 1513 (2006).
9. As regards the strengthening of democratic institutions, the
Assembly:
9.1. welcomes some improvements
to the Election Code, while regretting that a number of substantive
recommendations of the Venice Commission and of the Organization
for Security and Co-operation in Europe’s Office for Democratic
Institutions and Human Rights (OSCE/ODIHR) have not been taken on
board;
9.2. regrets that the Parliamentary Assembly of Bosnia and
Herzegovina has once again failed to appoint the state ombudspersons;
9.3. regrets that no steps forward have been made to strengthen
local self-government in Bosnia and Herzegovina by harmonising the
relevant entity legislation and promoting cross-entity inter-municipal
co-operation;
9.4. calls upon the authorities of Bosnia and Herzegovina to:
9.4.1. further improve the electoral
legislation, in line with the joint recommendations of the Venice
Commission and of the OSCE/ODIHR;
9.4.2. ensure proper implementation of the legislation on conflict
of interests at state and entity level, in a spirit of coherence,
efficiency and cost effectiveness;
9.4.3. complete promptly the procedure of appointment of the
three state ombudspersons;
9.4.4. 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, with a view to effectively devolving sectoral competences
to local authorities, strengthening fiscal decentralisation, building
up the capacity of local authorities and promoting cross-entity
inter-municipal co-operation;
9.4.5. finalise the public broadcasting reform without further
delay; refrain from any attempt to weaken the independence of the
Communications Regulatory Authority and take steps to protect journalists
and NGOs from harassment and intimidation.
10. As regards the rule of law, the Assembly:
10.1. acknowledges the progress made
in the field of judicial reform, in particular the recent adoption, at
state, entity and Brčko District level, of the judicial reform strategy,
while noting the remaining problems, in particular, the poor material
working conditions of the courts and the lack of consistency in judicial
practice, particularly between entities;
10.2. welcomes the work carried out by the war crimes chamber
of the State Court of Bosnia and Herzegovina in prosecuting war
crimes, while regretting the fact that inconsistencies still exist
in the application of criminal law by various courts at state and
entity level with respect to war crimes, which leads to inequality
of treatment of citizens, in the light of the European Convention
on Human Rights (the Convention – ETS No. 5);
10.3. while welcoming the good co-operation between the Bosnian
authorities and the Group of States against Corruption (GRECO),
regrets the perceived high degree of political corruption and organised crime
in the country;
10.4. calls upon the authorities of Bosnia and Herzegovina to:
10.4.1. further pursue the judicial
reform, in particular, by improving the material conditions of courts,
strengthening co-operation between judges, prosecutors and the police
and promoting better consistency in judicial practice at entity
and state level, notably by considering the creation of a state
level supreme court, as recommended by the Assembly in Resolution 1513 (2006);
10.4.2. ensure the uniform application of the Criminal Code of
Bosnia and Herzegovina at entity and state level, in particular
with respect to war crime cases; finalise, without further delay,
the strategy to deal with the remaining war crimes cases;
10.4.3. further intensify efforts to eradicate and prevent political
corruption by, in particular, ensuring a harmonised application
of the legislation on conflict of interests;
10.4.4. take further steps to harmonise the entity-level legislation
and practice in the field of prison administration, in particular
with regard to execution of criminal sentences, juvenile delinquency
and the mentally ill; and step up the construction of a state-level
high-security prison;
10.4.5. allocate in the next four years significant funds in the
state, entity and cantonal budgets to support the return of internally
displaced persons, as provided for in Annex VII of the Dayton Peace
Agreement.
11. As regards human rights, the Assembly:
11.1. welcomes the fact that the domestic legislative procedure
relating to the ratification of the Revised European Social Charter
(ETS No. 163) and of the European Convention on Nationality (ETS
No. 166) has been completed and expects the authorities of Bosnia
and Herzegovina to deliver promptly the instruments of ratification
to the Council of Europe Secretary General. The Assembly expects
the authorities of Bosnia and Herzegovina to ratify without further
delay the European Charter for Regional or Minority Languages (ETS
No. 148) in accordance with the commitment taken six years ago;
11.2. welcomes that finally, six years after accession, the
agreement on the publication of the compatibility study of domestic
legislation and the European Convention on Human Rights was finally reached;
11.3. regrets that the procedures for appointing members or
candidates on behalf of Bosnia and Herzegovina to several Council
of Europe monitoring mechanisms or advisory bodies, in particular
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), the Advisory Committee
of the Framework Convention for the Protection of National Minorities, the
European Commission against Racism and Intolerance (ECRI) and the
Venice Commission, have yet to be completed;
11.4. takes note of the current work of the Citizenship Review
Commission and of the criticism expressed by several stakeholders
concerning the respect for human rights standards in the work of
this commission;
11.5. regrets that, contrary to the letter of the President
of the United Nations Security Council and to the recommendations
of the Council of Europe Commissioner for Human Rights, the decertified
police officers are still prevented from applying for vacant jobs
in the police;
11.6. strongly condemns the continuing practice of “ethnic segregation”
in primary and secondary schools, while welcoming the adoption of
the new framework law on higher education;
11.7. condemns the discrimination and violence against lesbian,
gay, bisexual and transgender people and the recent attacks against
organisers and participants of the Sarajevo Queer Festival and journalists;
11.8. calls upon the authorities of Bosnia and Herzegovina to:
11.8.1. eliminate from state and entity
legislation all shortcomings which, according to the compatibility
study, may lead Bosnia and Herzegovina to be found in violation
of the Convention;
11.8.2. nominate members for all Council of Europe monitoring
mechanisms and advisory bodies without further delay;
11.8.3. ensure that the norms of the Convention and its Protocols
Nos. 4 and 7, as well as the principles of the European Convention
on Nationality, are fully respected in the work of the Citizenship
Review Commission;
11.8.4. in parallel with the implementation of Annex VII of the
Dayton Peace Agreement and of the decision of the Constitutional
Court of Bosnia and Herzegovina on the constituent status of peoples,
ensure that all citizens of Bosnia and Herzegovina have equal access
to government structures at all levels;
11.8.5. find, at the earliest opportunity, an appropriate and
final solution to the problems faced by the decertified police officers;
11.8.6. fully implement the recommendations of the CPT and adopt
the necessary general measures to execute the judgments of the European
Court of Human Rights finding a violation of the Convention in respect
of Bosnia and Herzegovina;
11.8.7. in accordance with the recommendations of the CPT and
the United Nations Human Rights Committee, move without further
delay all patients held in the Zenica Prison Forensic Psychiatric
Annex to another adequate facility where they would receive required
treatment as agreed in the friendly settlement to the Hadžić case;
11.8.8. put an end to the practice of “ethnic segregation” in
primary and secondary schools as a matter of urgency; fully implement
the 2003 primary and secondary education reform, and continue the
reform of higher education, in line with the recently adopted framework
legislation;
11.8.9. urgently find an appropriate and country-wide solution
to the problem of repayment of the funds from citizens’ foreign
currency saving accounts which were frozen after the dissolution of
the Federal Republic of Yugoslavia;
11.8.10. condemn discrimination and violence against lesbian, gay,
bisexual and transgender people as well as others who are promoting
their rights and ensure their protection; and promptly and thoroughly
investigate any attacks against them and bring those responsible
to justice.
12. As regards co-operation with the International Criminal Tribunal
for the former Yugoslavia (ICTY), the Assembly:
12.1. welcomes the recent arrests
of Radovan Karadžić and Stojan Župljanin;
12.2. calls upon the authorities to continue close co-operation
with the tribunal as well as with their partners in the region in
order to apprehend and bring to justice the two remaining ICTY indictees
of war crimes, Ratko Mladić and Goran Hadžić.
13. The Assembly recalls its previous recommendation concerning
the organisation of a population census by 2010 and considers that
the census should be launched as quickly as possible, using in particular
the disaggregated data collection methodology, given the particular
circumstances of Bosnia and Herzegovina. The Assembly also recalls
its recommendation about the setting up of a truth and reconciliation
commission and expects the authorities to take appropriate steps
in this respect promptly.
14. Pending the implementation of these recommendations and the
achievement of substantial progress in the fields of constitutional
reform, functioning of democratic institutions, rule of law and
human rights, the Assembly resolves to pursue its monitoring of
the honouring of obligations and commitments by Bosnia and Herzegovina.