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A. Draft resolution
(open)
B. Explanatory memorandum
by Mr Zsolt Németh and Mr Pablo Hispán, co-rapporteurs
(open)
Report | Doc. 16310 | 19 December 2025
The functioning of democratic institutions in Bosnia and Herzegovina
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
A. Draft resolution 
(open)1. Bosnia and Herzegovina joined
the Council of Europe on 24 April 2002. Accordingly, it entered
into, and agreed to honour, a number of specific commitments which
are listed in Opinion 234 (2002) “Bosnia and Herzegovina’s application
for membership of the Council of Europe” of the Parliamentary Assembly.
2. Referring to its Resolution 2574 (2024) “The honouring of
obligations and commitments by Bosnia and Herzegovina”, the Assembly
reiterates its full support for the State of Bosnia and Herzegovina
and all its citizens, and urges all Council of Europe member States
to respect the constitutional and legal order, sovereignty and territorial
integrity of the country.
3. The Assembly expresses its concern about the recent developments
in Bosnia and Herzegovina, marked by attacks against the State,
the rule of law and the institutions established following the General Framework
Agreement for Peace (“Dayton Peace Agreement”). There is cause for
hope, however, in light of recent decisions that have reversed some
of these concerns.
4. On 6 August 2025, following the decision by the Court of First
Instance of Bosnia and Herzegovina to sentence the then President
of Republika Srpska, Mr Milorad Dodik, to one year in prison (later
converted to a fine) and impose a six-year ban from holding public
office for failing to comply with decisions of the High Representative,
the Central Election Commission revoked Mr Dodik's presidential
mandate. As a consequence, an early election for the President of
Republika Srpska took place on 23 November 2025.
5. The Assembly notes that according to the statement of the
electoral observation mission of the Congress of Local and Regional
Authorities of the Council of Europe, the early presidential election
was “generally well-organised (…) despite some irregularities”,
particularly regarding the secrecy of the vote. The Assembly notes that
the legal framework amended in March 2024 to improve the integrity
and transparency of the electoral process is gradually implemented.
It welcomes that these reforms should bring the electoral law in
line with European standards and, in particular, the recommendations
made by the Office for Democratic Institutions and Human Rights
of the Organization for Security and Co-operation in Europe (OSCE/ODIHR),
the Group of States against Corruption (GRECO) and the European
Commission for Democracy through Law (Venice Commission). The Assembly
underlines the importance of ensuring that electoral reforms also
guarantee the political representation of all three constituent
peoples and “Others”, in accordance with the judgments of the Constitutional
Court of Bosnia and Herzegovina and the European Court of Human
Rights.
6. The Assembly also notes with satisfaction that the authorities
of Republika Srpska have annulled the entity-level laws adopted
from 2023 to 2025 that had been declared unconstitutional by the
Constitutional Court, including the separate election law for Republika
Srpska; laws on immovable property used for the functioning of public
authorities; on non-application of decisions of the Constitutional
Court of Bosnia and Herzegovina; on banning the operation of “extra-constitutional
institutions of Bosnia and Herzegovina” in the Republika Srpska;
amendments to the Criminal Code of Republika Srpska; and the law
on a separate High Judicial and Prosecutorial Council for the entity.
The Assembly calls on the authorities of Republika Srpska to promptly
initiate the procedure for appointing (remaining positions of) judges
to the Constitutional Court of Bosnia and Herzegovina, in accordance
with the constitutional and relevant legal framework, with a view
to ensuring the full functioning, institutional stability, and effective
exercise of the Court’s constitutional mandate.
7. The Assembly underlines, yet again, that upon accession, Bosnia
and Herzegovina has committed to review, with the assistance of
the Venice Commission, its electoral legislation in the light of
Council of Europe standards, and to revise it where necessary. The
Assembly recalls the need for a constitutional reform in Bosnia
and Herzegovina to implement the judgment of Sejdić
and Finci v. Bosnia and Herzegovina and takes note of
the judgment of the Grand Chamber of the European Court of Human
Rights in the case Kovačević v. Bosnia
and Herzegovina. In this context, the Assembly welcomes
the creation of a working group for the preparation of amendments
to the Constitution of Bosnia and Herzegovina and the draft Law
on Amendments to the Election Law of Bosnia and Herzegovina. The
Assembly urges the political parties to find an agreement on these
amendments to bring the constitutional and legislative framework
into line with the requirements of the European Convention on Human
Rights (ETS No. 5).
8. The Assembly calls on the political parties to adopt a package
of reforms that would improve the functionality of the State institutions,
including ensuring that the institutional architecture allows for
effective participation and decision-making by representatives of
all constituent peoples in line with the power-sharing model established
by the Dayton Peace Agreement, and to find a sustainable solution
to the issue of State property.
9. The Assembly urges the presidency of Bosnia and Herzegovina
to complete, in conformity with the requirements of fairness and
transparency, the selection procedure for the post of judge at the
European Court of Human Rights in respect of Bosnia and Herzegovina,
and to submit a list of three qualified candidates to the Assembly
without further delay.
10. The Assembly encourages the Bosnian authorities to pursue
their co-operation with the Council of Europe, in particular the
Venice Commission, and make use of its expertise for the electoral
and constitutional reform. It resolves to follow the ongoing developments
in the framework of its monitoring procedure.
B. Explanatory memorandum
by Mr Zsolt Németh and Mr Pablo Hispán, co-rapporteurs
(open)1. The monitoring procedure
1. In becoming a member of the
Council of Europe on 24 April 2002, Bosnia and Herzegovina consented to
honour the obligations placed on all member States under Article 3
of the Organisation’s Statute (ETS N° 1), together with a number
of specific undertakings set out in Opinion 234 (2002) “Bosnia and
Herzegovina’s application for membership of the Council of Europe”
of the Parliamentary Assembly. With a view to ensuring compliance
with these commitments, the Assembly decided, pursuant to Resolution 1115 (1997),
to open a monitoring procedure with regard to Bosnia and Herzegovina
upon its accession. The last resolution on the honouring of obligations
and commitments adopted by the Assembly is Resolution 2574 (2024).
2. In this resolution, the Assembly lamented the fact that the
2022 elections were held for the fourth time under a legal and constitutional
framework which is in violation of the European Convention on Human
Rights (ETS No. 5). At the same time, it welcomed the changes introduced
to the electoral legislation with a view to ensuring the integrity
of the electoral process. The Assembly expressed its concern regarding
the failure by authorities in Republika Srpska (RS) to implement
binding decisions of the Constitutional Court of Bosnia-Herzegovina
and urged the competent authorities to nominate all judges to the
Constitutional Court.
3. Regarding the strengthening of democratic institutions, the
Assembly called to bring the electoral legislation into line with
the European Convention on Human Rights; ensure the proper functioning
of the Constitutional Court; adopt a new law on the High Judicial
and Prosecutorial Council; improve the efficiency of the institutional
framework with a view to meeting the objectives and conditions required
prior to the closure of the Office of the High Representative for
Bosnia and Herzegovina, inter alia.
4. Since the adoption of this resolution, the developments have
been fast paced. According to the 67th report
of the High Representative for Bosnia and Herzegovina to the United
Nations Security Council, latest developments constituted “a significant rise
of tensions, which inarguably amounts to an extraordinary crisis
in Bosnia and Herzegovina since the signing of the General Framework
Agreement for Peace in Bosnia and Herzegovina.”
5. On 3 December 2024, upon the expiry of Mr Aleksandar Nikoloski’s
(North Macedonia, EPP/CD) mandate, the Committee on the Honouring
of Obligations and Commitments by Member States of the Council of
Europe (Monitoring Committee) decided to appoint Mr Pablo Hispán
(Spain, EPP/CD) as co-rapporteur. On 20 September 2025, the mandate
of Mr Zsolt Németh (Hungary, ECPA) was extended until 31 January
2026. The Monitoring Committee discussed the latest developments
in March and in May 2025, and held a hearing with Mr Elmedin Konaković,
the Minister for Foreign Affairs of Bosnia and Herzegovina, in September
2025.
6. In early November 2025, the co-rapporteurs conducted a country
visit in Sarajevo. The delegation met with the Chair of the Council
of Ministers, Ms Borjana Krišto, the Minister of Justice, Mr Davor
Bunoza, the Minister of Human Rights, Mr Sevlid Hurtić, and representatives
of the most prominent political parties in parliament. They also
met with the acting president of RS, Ms Ana Trišić Babić. The co-rapporteurs
wish to express their gratitude to the Parliament of Bosnia and
Herzegovina and to the Council of Europe office in Sarajevo for
the extremely useful assistance provided in the preparation of this
mission.
7. Before Bosnia and Herzegovina enters the campaign for the
2026 general elections, we deemed useful, as co-rapporteurs of the
Monitoring Committee, to provide the Assembly with an update of
the latest developments and their consequences on the functioning
of democratic institutions in the country.
2. Political developments
8. Over the last year, political
developments in Bosnia and Herzegovina have unfolded as a profound constitutional
and institutional crisis, challenging peace, State sovereignty,
the Dayton Peace Agreement framework, and the role of international
actors. This crisis largely – but not exclusively – stems from the
RS entity’s measures contesting the legitimacy of State institutions
and the authority of the Office of the High Representative.
9. The roots of the crisis can be tracked to April 2022, when
the High Representative exercised his authority to suspend the application
of the RS Law on Immovable Property Used for the Functioning of
Public Authority, pending review by the Constitutional Court. This
law, adopted by the RS National Assembly in February 2022, aimed
to establish RS ownership and autonomous regulation over property
previously classified as State-owned. In his announcement,
the High Representative Christian Schmidt emphasised: “Only the
state of Bosnia and Herzegovina can dispose of state property, or
regulate the ownership of state property”, underlining the need
to preserve the constitutional and territorial integrity established
by the Dayton Peace Agreement. Schmidt’s suspension was framed as
a necessary step pending constitutional court review, but it was
met with firm rejection by RS leadership, including Milorad Dodik,
who dismissed the suspension as illegitimate and asserted that “the
property of Republika Srpska is the property of Republika Srpska”.
On 22 September 2022, the Constitutional Court of Bosnia and Herzegovina
declared the law unconstitutional. The Court held that the regulation
and ownership of property used by public authorities fall exclusively
under the jurisdiction of the State, reflecting the principle that
the State holds constitutional supremacy over such assets.
In his announcement,
the High Representative Christian Schmidt emphasised: “Only the
state of Bosnia and Herzegovina can dispose of state property, or
regulate the ownership of state property”, underlining the need
to preserve the constitutional and territorial integrity established
by the Dayton Peace Agreement. Schmidt’s suspension was framed as
a necessary step pending constitutional court review, but it was
met with firm rejection by RS leadership, including Milorad Dodik,
who dismissed the suspension as illegitimate and asserted that “the
property of Republika Srpska is the property of Republika Srpska”.
On 22 September 2022, the Constitutional Court of Bosnia and Herzegovina
declared the law unconstitutional. The Court held that the regulation
and ownership of property used by public authorities fall exclusively
under the jurisdiction of the State, reflecting the principle that
the State holds constitutional supremacy over such assets.10. As a reaction, the RS Assembly voted a series of laws explicitly
rejecting the authority of both the High Representative and the
Constitutional Court of Bosnia and Herzegovina. On 27 June 2023,
the RS Assembly adopted laws that effectively declared the Constitutional
Court's decisions non-binding within RS territory, refused to co-operate
with State-level judicial and law enforcement institutions, and
established parallel structures directly challenging the country's
constitutional framework.
11. The High Representative responded by revoking these laws,
emphasising that such actions threatened the sovereignty, territorial
integrity, and constitutional order of Bosnia and Herzegovina. In
his decisions, he underscored that “no entity or lower level of
government has the legal competence to selectively implement or reject
decisions of either the Constitutional Court or the Office of the
High Representative”, reaffirming the primacy of international and
State-level law. To enforce compliance, the High Representative
introduced amendments to the Criminal Code of Bosnia and Herzegovina,
criminalising the non-execution or obstruction of binding decisions
issued by State-level institutions and the High Representative.
12. This marked a transformative step in the crisis, signalling
a shift from political disagreement to legal enforcement, with provisions
prescribing penalties ranging from monetary fines to imprisonment
for individuals, found guilty of defying the relevant decisions
including for elected officials. Despite repeated annulments of laws
and warnings, RS leadership persisted in their non-compliance, even
re-promulgating previously annulled legislation. This ongoing resistance
led to formal investigations and prosecutions against top RS officials, including
President Milorad Dodik, for obstructing the constitutional order.
13. On 26 February 2025, the Court of First Instance of Bosnia
and Herzegovina convicted Mr Dodik of failing to comply with High
Representative decisions, sentenced him to one year in prison (later
converted to a fine) and imposed a six-year ban from holding public
office. Following the verdict, Mr Dodik addressed a rally in Banja
Luka, where he launched severe accusations against the Court of
Bosnia and Herzegovina and the judge who handed down the ruling.
14. Mr Dodik appealed the decision, contesting the legitimacy
of the high representative’s mandate and the criminal code amendments
underpinning the charges. On 1 August 2025, the Appeals Chamber
of the Court of Bosnia and Herzegovina confirmed the verdict. This
outcome effectively ended Mr Dodik’s political mandate per the Election
Law, which provides for the termination of mandate upon a final
criminal conviction. As a consequence, the Central Election Commission
(CEC) revoked Mr Dodik's presidential mandate on 6 August. An early
presidential election in RS was called for the 23 November 2025.
15. At first, the RS leadership rejected the court ruling and
the CEC’s decision. On 22 August 2025, the RS National Assembly
(RSNA) adopted conclusions rejecting the conviction of Mr Dodik
and the call for early election, and instructed RS institutions
and political stakeholders to refrain from actions related to the
conduct of the election. The RSNA also decided to hold a referendum
on 25 October 2025. The question to be asked was: “Do you accept
the decisions of the unelected foreigner Christian Schmidt and the
unconstitutional judgments of the BiH Court pronounced against the
President of Republika Srpska, as well as the decision of the CEC
to revoke the mandate of the President of Republika Srpska, Milorad
Dodik?”
16. However, the largest opposition party, the Serb Democratic
Party (SDS) supported the participation in the election. Other opposition
leaders – Jelena Trivić of the People's Front and Nebojša Vukanović of For Justice
and Order – announced that they would support the SDS candidate
in the election. On 28 September 2025, the SDS announced the candidacy
of Branko Blanuša, a university professor, for President of RS.
17. On 29 September 2025, the Alliance of Independent Social Democrats
(SNSD) party led by Milorad Dodik announced that it would eventually
take part in the election and postponed the referendum initially planned
for 25 October until 9 January 2026. On 30 September, Mr Dodik confirmed
that SNSD would nominate Siniša Karan, the former RS Minister of
Interior, as its candidate for RS President in the upcoming early
presidential election. On 18 October, the RSNA appointed Ana Trišić-Babić
as the acting President of Republika Srpska, in replacement of Mr Dodik
until the 23 November election and annulled the entity-level laws adopted
from 2023 to 2025 that had been declared unconstitutional by the
Constitutional Court of the Bosnia and Herzegovina. These texts
included: the separate RS election law; laws on immovable property
used for the functioning of public authorities; on non-application
of decisions of the Constitutional Court of Bosnia and Herzegovina;
on banning the operation of “extra-constitutional institutions of
Bosnia and Herzegovina” in the RS; amendments to the RS Criminal
Code; and the law on a separate High Judicial and Prosecutorial
council for the entity. The RSNA also took out of force an earlier
text adopted on 25 December 2024 “on the undermining of the legal
order in Bosnia and Herzegovina by violating the Dayton Peace Agreement”.
18. In parallel, the United States Department of the Treasury
announced that Milorad Dodik and his family members, all his associates
and their companies had been removed from the US sanctions’ list.
According to the US State Department press release: “The United
States welcomes today’s Republika Srpska National Assembly (RSNA)
action that affirms stability in Bosnia and Herzegovina.”
19. The decisions of the RSNA to withdraw all the laws that had
been declared unconstitutional and of SNSD to take part in the early
presidential election and accept the revocation of the mandate of
Milorad Dodik considerably eased the tensions, as we have witnessed
during our stay in Sarajevo, between 2nd and
5th of November 2025. We felt that these
decisions, as well as the lifting of US sanctions against Mr Dodik
and his associates, created a supportive momentum for long-awaited
reforms, although short, as next statewide elections are due in
September 2026. This momentum could be seized to address some of
the main problems hampering Bosnia and Herzegovina today: the necessary
reform of institutions and the solution to the issue of State property.
20. The official electoral campaign for the election of the President
of RS lasted only two weeks. The tone of the campaign was violent
in places. Mr Dodik labelled Bosniacs – one of the three constituent
peoples in RS – as “enemies” and a “destructive force”. “One can
smell the stench coming from Sarajevo, which for centuries has prevented
normal life here,” said Dodik in one of his first campaign messages.
The CEC launched proceedings against SNSD over this statement, after
which the party was fined 30 000 convertible marks, or some 15 000
Euros.
21. According to the joint observers of the Office for Democratic
Institutions and Human Rights of the Organization for Security and
Cooperation in Europe (OSCE/ODIHR), the Congress of Local and Regional Authorities
of the Council of Europe, and the European Parliament: “candidates
campaigned freely but the undue advantages enjoyed by the ruling
party left contestants with unequal opportunities”. On election day, the turnout was
very low, at 34.79% of the voters. This is not surprising knowing
that the elected president will serve for less than a year, until
the September 2026 general elections. The results were tight, Siniša
Karan from SNSD gathered 50.41% of the votes, while Branko Blanuša,
opposition candidate, gathered 48.20%. Unfortunately, the results
were disputed. SDS has formally requested repeat voting at three
polling stations – Doboj, Zvornik, and Laktaši – arguing that these
locations recorded the most serious irregularities.
On election day, the turnout was
very low, at 34.79% of the voters. This is not surprising knowing
that the elected president will serve for less than a year, until
the September 2026 general elections. The results were tight, Siniša
Karan from SNSD gathered 50.41% of the votes, while Branko Blanuša,
opposition candidate, gathered 48.20%. Unfortunately, the results
were disputed. SDS has formally requested repeat voting at three
polling stations – Doboj, Zvornik, and Laktaši – arguing that these
locations recorded the most serious irregularities.22. It is important to underline that this crisis, however serious,
was a political and institutional one. It was not a security issue,
and the dividing issues were not along ethnic lines. The political
opposition in RS did not follow Mr Dodik’s messages. And when, at
the peak of the confrontation, the RSNA passed a law that threatened
State-level officials from RS with prosecution if they did not resign
from their positions, it is reported that only 3 officials left
State-level institutions.
3. Dayton’s institutions and Bosnia and Herzegovina’s commitments to the Council of Europe
23. Bosnia and Herzegovina declared
its independence from the former Yugoslav Republic on 1 March 1992.
The tragic war that followed ended in 1995 with the “General Framework
Agreement for Peace in Bosnia and Herzegovina” (GFAP) also known
as the Dayton Agreement. Annex 4 to the Dayton Agreement deals with the
Constitution of Bosnia and Herzegovina. According to the Constitution,
Bosnia and Herzegovina consists of two Entities – the Federation
of Bosnia and Herzegovina (also referred to as “the Federation”)
and the Republika Srpska – and the Brčko District in the joint ownership
(condominium) of the two Entities.
24. The institutional framework of the State of Bosnia and Herzegovina
is renowned for its complexity. In a comprehensive and authoritative
review made in 2005, the
European Commission for Democracy through Law (Venice Commission)
found that “To sum up, the decision-making mechanisms at Bosnia
and Herzegovina level are not efficient and rational but cumbersome
and with too many possibilities of blocking the taking of any decision.” “One
gets the impression that efficient and rational decision-making
is entirely sacrificed to the principle of involving representatives
of each constituent people in any decision.” “Constitutional reform is indispensable
since present arrangements are neither efficient nor rational and
lack democratic content.” We recommend the reading of this opinion
to anyone who would need to delve deeper in the details of the functioning
of institutions at the level of the State of Bosnia and Herzegovina,
as well as at the level of both entities.
the
European Commission for Democracy through Law (Venice Commission)
found that “To sum up, the decision-making mechanisms at Bosnia
and Herzegovina level are not efficient and rational but cumbersome
and with too many possibilities of blocking the taking of any decision.” “One
gets the impression that efficient and rational decision-making
is entirely sacrificed to the principle of involving representatives
of each constituent people in any decision.” “Constitutional reform is indispensable
since present arrangements are neither efficient nor rational and
lack democratic content.” We recommend the reading of this opinion
to anyone who would need to delve deeper in the details of the functioning
of institutions at the level of the State of Bosnia and Herzegovina,
as well as at the level of both entities.25. In this report, we shall focus on the issues that directly
relate to the obligations and commitments of Bosnia and Herzegovina
to the Council of Europe. One of the most contentious issues is
the compatibility of the constitutional norm of “constituent peoples”
with the prohibition of discrimination on the basis of ethnicity. In
the preamble to the Constitution, Bosniacs, Croats and Serbs are
described as “constituent peoples”. A distinction is made between
these “constituent peoples” and “Others” (members of ethnic minorities
and persons who do not declare affiliation with any particular group
because of intermarriage, mixed parenthood, or other reasons). Until
2000, constituent peoples were associated to certain entities: Serbs
were the only constituent people in the Republic Srpska, and Bosniacs
and Croats were the only constituent peoples in the Federation of
Bosnia and Herzegovina. On 1st July 2000, the Constitutional Court
of Bosnia and Herzegovina ruled that members of all three constituent
peoples, and “Others”, had to have equal rights throughout Bosnia and
Herzegovina.
26. The protection of the interests of the constituent peoples
is ensured at the State level via a number of constitutional provisions
incorporating power-sharing arrangements that were designed to end
the conflict and that make it impossible to adopt decisions against
the will of the representatives of any constituent people. Following
the 2000 decision of the Constitutional Court of Bosnia and Herzegovina,
power-sharing provisions were introduced in both entities and rules
allocating the most important positions equally among the three constituent
peoples were included in the Entities’ constitutions. The representatives
of the three constituent peoples now constitutionally have in these
various units a strong blocking position, even where they represent only
a very limited number of voters.
Following
the 2000 decision of the Constitutional Court of Bosnia and Herzegovina,
power-sharing provisions were introduced in both entities and rules
allocating the most important positions equally among the three constituent
peoples were included in the Entities’ constitutions. The representatives
of the three constituent peoples now constitutionally have in these
various units a strong blocking position, even where they represent only
a very limited number of voters.27. These constitutional arrangements were not part of the Agreed
Basic Principles of what would later become the Dayton Agreement
but reluctantly added at a later stage of the peace negotiations.
Aware that such principles might conflict with human rights, the
negotiators of the Dayton Agreement balanced these with Article
II of the Constitution which states that: “The rights and freedoms
set forth in the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its Protocols shall apply directly
in Bosnia and Herzegovina. These shall have priority over all other
law.”
28. The text of the Constitution therefore carried an ambiguity
and a potential conflict of norms between the notion of constituent
people stated in the preamble and its article II. This ambiguity
might have been necessary to obtain the signature of warring parties
in 1995, but it is a heavy legacy 30 years later. When Bosnia and Herzegovina
joined the Council of Europe, on 24 April 2002, it took the commitment
to, inter alia, “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;”
and in April 2005, Protocol 12 to the European Convention on Human
Rights (ETS No. 177), which establishes a general prohibition of
discrimination, came into force in Bosnia and Herzegovina.
29. Two years after the accession of Bosnia and Herzegovina to
the Council of Europe, the Assembly adopted Resolution 1384 (2004) “Strengthening of democratic institutions in Bosnia
and Herzegovina” in which it asked the Venice Commission “to make
a comprehensive assessment of the conformity of the Constitution of
Bosnia and Herzegovina with the Convention for the Protection of
Human Rights and Fundamental Freedoms and the European Charter of
Local Self-Government (ETS No. 122), as well as of the efficiency
and rationality of the present constitutional and legal arrangements
in Bosnia and Herzegovina.” The Venice Commission prepared the “Opinion
on the constitutional situation in Bosnia and Herzegovina and the
powers of the High Representative” which was adopted in March 2005.
which was adopted in March 2005.30. Following this opinion, a process of constitutional reform
was initiated quickly and three different solutions for the election
of the presidency were submitted to the Venice Commission a year
later. The Venice Commission issued another opinion, endorsing two of the three proposals,
with some adjustments. In April 2006 a group of constitutional amendments, the
Aprilski packet, was put to the vote, but the required two-thirds
majority was missed by two votes.
endorsing two of the three proposals,
with some adjustments. In April 2006 a group of constitutional amendments, the
Aprilski packet, was put to the vote, but the required two-thirds
majority was missed by two votes.31. As no reform was adopted, the existing constitutional and
electoral rules governing the elections to the House of Peoples
and the presidency of Bosnia and Herzegovina were challenged before
the European Court of Human Rights. The Court gave its judgment
in the Sejdić and Finci v. Bosnia and
Herzegovina case, in 2009. The Court found that the impossibility
for candidates not belonging to a constituent people to stand for
election to the House of Peoples and the presidency lacked an objective
and reasonable justification. Therefore, it breached the prohibition
of discrimination set out in the European Convention on Human Rights.
The Court’s findings in that judgment were reiterated in a series
of cases. These
cases are still under the supervision of the Committee of Ministers
pending execution of the judgments concerned.
These
cases are still under the supervision of the Committee of Ministers
pending execution of the judgments concerned.32. Since this judgment, numerous negotiations took place, under
different patronage and in different formats, to find a constitutional
and electoral reform in conformity with the Convention. All these
attempts failed, often due to the impossibility for the main political
actors to make a politically difficult compromise.
33. The case law of the European Court of Human Rights was completed
with the judgment of the Grand Chamber in the case Kovačević v. Bosnia and Herzegovina,
in June 2025. The Sejdic and Finci case dealt with the right to
stand for elections and hinted that precluding candidates to take
part in elections on the basis of their ethnicity constituted a
discrimination. In the Kovačević v. Bosnia
and Herzegovina case, the Court made a clear distinction
between the right to stand for elections – the passive aspect of
the right to vote – and the right of voters – the active aspect
of the right to vote. The Court noted that restrictions imposed
on the exercise of the right to vote based on the specific constitutional
set-up in a State were not all of discriminatory nature and could
be justified in some situations. According to the Court, the active
and passive aspects of the right to vote were intended to protect
different interests, were different in their scope, entailed different
requirements and might be subject to different limitations. States
might choose to establish electoral units based on existing administrative
boundaries, or other administrative, geographical or constitutional
criteria that they may determine in view of their specific needs
and conditions. In the specific case of Bosnia and Herzegovina,
the separation into different electoral units along Entity lines
for the purposes of the composition of the House of Peoples was
a result of its highly decentralised and uniquely complex constitutional
structure embedded in an international peace agreement. This judgment
could prove extremely useful in the search for a solution.
34. While we were in Sarajevo, the Council of Ministers decided
the creation of a “Working Group for the preparation of amendments
to the Constitution of Bosnia and Herzegovina and the draft Law
on Amendments to the Election Law of Bosnia and Herzegovina.”
4. Improving the efficiency of the institutional structures at State-level
35. The electoral reform is not
the only institutional issue that requires fixing in Bosnia and
Herzegovina. As put by the Venice Commission in 2005, “BiH Constitution
ensures the protection of the interests of the constituent peoples
not only through territorial arrangements reflecting their interests
but also through the composition of the state organs and the rules
on their functioning. In such a situation, a balance has indeed
to be struck between the need to protect the interests of all constituent
peoples on the one hand and the need for effective government on
the other. However, in the BiH Constitution, there are many provisions
ensuring the protection of the interests of the constituent peoples,
inter alia: the vital interest veto in the Parliamentary Assembly,
the two chamber system and the collective Presidency on an ethnic
basis. The combined effect of these provisions makes effective government
extremely difficult, if not impossible. Hitherto the system has more
or less functioned due to the paramount role of the High Representative.
This role is however not sustainable.”
36. Unfortunately, the situation did not improve in the 20 years
that elapsed since the Venice Commission prepared its opinion. In
its 2025 report on Bosnia and Herzegovina, the
European Commission concluded similarly that: “Bosnia and Herzegovina
needs to bring its constitutional framework in line with European standards
and ensure the functionality of its institutions to be able to take
on EU obligations. While a decentralised State structure is compatible
with EU membership, Bosnia and Herzegovina will need to reform its
institutions to be able to effectively participate in EU decision-making
and to fully implement and enforce the acquis.” Functionality
and efficiency remain critical in 2025.
the
European Commission concluded similarly that: “Bosnia and Herzegovina
needs to bring its constitutional framework in line with European standards
and ensure the functionality of its institutions to be able to take
on EU obligations. While a decentralised State structure is compatible
with EU membership, Bosnia and Herzegovina will need to reform its
institutions to be able to effectively participate in EU decision-making
and to fully implement and enforce the acquis.” Functionality
and efficiency remain critical in 2025.37. The Venice Commission’s opinion underlined how two institutional
features of Bosnia and Herzegovina were intertwined: the numerous
veto powers, and the institution of the High Representative. The
system creates numerous veto points at State and entity levels.
Decisions can be blocked by a minority if any of the constituent
peoples oppose them, making legislative consensus difficult and
causing frequent paralysis. As a counterpart, and in order to keep
a minimum level of functionality in the institutions, the Office
of the High Representative can intervene as a “safety valve”, allowing
to unblock the paralysis. Once again, the negotiated peace agreement
created an ambiguity between extremely consociational institutions,
based on the idea that no decision can be imposed on a constituent
people without its agreement, and an international institution granted
extraordinary authority to impose decisions – in some limited matters –
in case of deadlocks. This ambiguity has also been the origin of
bitter conflicts and also needs to find a conclusion. Both issues,
the numerous blocking mechanisms and the international overseeing
mechanism, are linked and should be analysed in common.
4.1. Veto powers in legislative and executive organs
38. The most important mechanism
ensuring that no decisions are taken against the interest of any constituent
people is the vital national interest veto. It is a protection mechanism
allowing each of the three constituent peoples to block legislation
or decisions they perceive as threatening their vital ethnic interests.
It operates primarily in the House of Peoples of the Parliamentary
Assembly and also affects decisions of the presidency. Another kind of veto
exists, the Entity veto. It provides for a veto by two-thirds of
the delegation from either Entity. In practice, it is essentially
relevant for the RS.
Another kind of veto
exists, the Entity veto. It provides for a veto by two-thirds of
the delegation from either Entity. In practice, it is essentially
relevant for the RS.39. Apart from the veto systems, the composition of the bicameral
parliament also contributes to the creation of deadlocks.
40. The House of Representatives is composed of 42 members, elected
at party-list proportional representation on two levels. The territory
is divided into multi-mandate constituencies in each of which a proportional
list election is organised. This system guarantees a very high proportionality
between the votes cast and the distribution of mandates and ensures
the representation of all parties that receive more than 3% of the
vote.
41. The second chamber is the House of Peoples. It is composed
of 15 members, 5 from each constituent people. Persons who do not
identify themselves as Bosniacs, Croats or Serbs are completely
barred from running for the House of Peoples, which constitutes
a violation of the European Convention on Human rights. The House of Peoples
is a chamber with full legislative powers, and the two chambers
have exactly the same legislative rights. The quorum for decision
making in the House of Peoples is nine delegates present, with the crucial
condition that at least three Bosniac, three Croat, and three Serb
delegates must be present. This ensures ethnic representation for
any valid session or vote. It also means that it only takes three
members to be absent to block the legislative process. As SNSD and
the Croatian Democratic Union of Bosnia and Herzegovina both have
three delegates each, it means they have a de
facto veto power on legislative work. For instance, on
3 November 2025, during our visit in Sarajevo, three delegates from
the Croat caucus were not present and the House of Peoples had to
postpone its session.
The House of Peoples
is a chamber with full legislative powers, and the two chambers
have exactly the same legislative rights. The quorum for decision
making in the House of Peoples is nine delegates present, with the crucial
condition that at least three Bosniac, three Croat, and three Serb
delegates must be present. This ensures ethnic representation for
any valid session or vote. It also means that it only takes three
members to be absent to block the legislative process. As SNSD and
the Croatian Democratic Union of Bosnia and Herzegovina both have
three delegates each, it means they have a de
facto veto power on legislative work. For instance, on
3 November 2025, during our visit in Sarajevo, three delegates from
the Croat caucus were not present and the House of Peoples had to
postpone its session. 42. For this reason, many constitutional reform proposals include
a redefinition of the roles of both chambers. As the Venice Commission
put it in 2005: “the House of Representatives becomes the chamber where
legislative work is done and necessary compromises are made in order
to achieve a majority. The role of the House of Peoples is only
negative as a veto chamber, where members see as their task to exclusively defend
the interests of their people without having a stake in the success
of the legislative process.” Improving the functionality and
efficiency of the institutions of Bosnia and Herzegovina would therefore probably
require to improve the legislative process by reducing the potential
abuse of vital national interest vetoes and quorum rules that allow
obstruction of parliamentary decision making.
Improving the functionality and
efficiency of the institutions of Bosnia and Herzegovina would therefore probably
require to improve the legislative process by reducing the potential
abuse of vital national interest vetoes and quorum rules that allow
obstruction of parliamentary decision making.43. Improving the efficiency of the legislative procedure in Bosnia
and Herzegovina is also a prerequisite for the conclusion of the
mandate of another Bosnian specificity, the institution of the High
Representative.
4.2. The Office of the High Representative
44. Annex X of the Dayton Agreement
established a High Representative of the international community
to facilitate the implementation of the peace agreement. This internationally
appointed political figure is vested with the power to take binding
decisions regarding the implementation of the civilian aspects of
the Dayton agreement. These are referred to as “Bonn powers”. Over
time, the use of Bonn powers has raised controversies. In its aforementioned Resolution 1384 (2004), the Assembly asked the Venice Commission to assess
the compatibility of the powers of the High Representative with
the European Convention on Human Rights.
45. Regarding the power to enact legislation granted to the High
Representative – the Bonn powers – the Venice Commission reminded
that: “the legislative process in BiH is unduly cumbersome and provides
far too many opportunities to block the adoption of legislation.
(…) The power of the High Representative to enact legislation therefore
provides a safety valve making it possible to adopt urgently required
legal texts.” However: “The democratic principle of the sovereignty
of the people requires that legislation is adopted by a body elected by
the people. Art. 3 of the (first) Protocol to the ECHR requires
the election of the legislature by the people, and this right is
deprived of its content if legislation is adopted by another body.”
Accordingly, the Venice Commission advocated that this power should
be gradually abandoned, in parallel with a constitutional reform making
the legislative process more efficient.
46. The persistence of the Office of the High Representative,
and its use of the Bonn powers, can then be understood as a consequence
and a necessary counterpart to the many blocking mechanisms existing
in the Bosnian legislative process.
47. It is precisely over some decisions taken using “Bonn powers”
that the political crisis culminating with the revocation of Mr Dodik’s
mandate sparked. The hostility from Mr Dodik towards the institution
of the High Representative is not a new feature and is concomitant
with Russia’s gradual withdrawal of support for the efforts to reinforce
the sovereignty and territorial integrity of Bosnia and Herzegovina.
Between 2017 and 2022, Russia opposed the declaration that RS had
no right to secede; questioned the legitimacy of judgments from the
International Criminal Tribunal for the former Yugoslavia; objected
to the statements of support for the Constitutional Court of Bosnia
and Herzegovina and its judges. More recently, Russia boycotted
the Peace Implementation Council in defiance of its decision to
support Christian Schmidt’s appointment.
48. From the viewpoint of Mr Dodik, the current High Representative
would not have been legally appointed, as the Security Council of
the United Nations did not endorse its nomination. This legal reasoning
is not in line with international practice and the findings of the
European Court of Human Rights. The High Representative has been established
with the authorisation of the United Nations Security Council by
an informal group of States actively involved in the peace process
as an enforcement measure under Chapter VII of the United Nations
Charter. He or she is selected by the Peace Implementation Council,
and not the UN Security Council. The expression of support by the
UN Security Council is not legally necessary for the decision of
the Peace Implementation Council Steering Board appointing a new
High Representative to take effect. In 2021, a Security Council resolution
explicitly proposed to end the powers and close the Office of the
High Representative for Bosnia and Herzegovina. It was rejected,
proving that the Security Council did not consider the institution
as illegitimate.
The High Representative has been established
with the authorisation of the United Nations Security Council by
an informal group of States actively involved in the peace process
as an enforcement measure under Chapter VII of the United Nations
Charter. He or she is selected by the Peace Implementation Council,
and not the UN Security Council. The expression of support by the
UN Security Council is not legally necessary for the decision of
the Peace Implementation Council Steering Board appointing a new
High Representative to take effect. In 2021, a Security Council resolution
explicitly proposed to end the powers and close the Office of the
High Representative for Bosnia and Herzegovina. It was rejected,
proving that the Security Council did not consider the institution
as illegitimate. 49. Nevertheless, all parties agree that the Office of the High
Representative is a temporary solution and that Bosnia and Herzegovina
should function without international oversight. As soon as 2004,
the co-rapporteurs of the Monitoring Committee considered that “the
time ha[d] come to define a clear strategy for transferring responsibilities
from the High Representative to domestic authorities.” In 2006, as
he took office, the then High Representative Christian Schwarz-Schilling
stated that: “Bosnia and Herzegovina must be fully sovereign. That
means I must step back”.
In 2006, as
he took office, the then High Representative Christian Schwarz-Schilling
stated that: “Bosnia and Herzegovina must be fully sovereign. That
means I must step back”.50. Accordingly, in February 2008, the Peace Implementation Council
set out five objectives and two conditions to put an end to the
mandate of the High Representative. These are known as the “Agenda
5+2”. The Steering Board of the Peace Implementation
Council has regularly reviewed progress on this agenda. While improvement
has been made in some areas, chronic disagreement among the main
political parties has led to gridlock that has prevented the full
implementation of the agenda.
The Steering Board of the Peace Implementation
Council has regularly reviewed progress on this agenda. While improvement
has been made in some areas, chronic disagreement among the main
political parties has led to gridlock that has prevented the full
implementation of the agenda.51. During our exchanges in Sarajevo, we heard very diverging
views on the institution of the High Representative. The SNSD has
made of its opposition to the High Representative a campaign argument
and an electoral slogan. Several other stakeholders have expressed
the view that the Office of the High Representative was still necessary
for the good functioning of institutions. These two views are in
fact not incompatible. The closure of the Office of the High Representative
should take place in parallel with constitutional reforms that improve
the efficiency of the legislative procedure and the functioning
of the executive and encourage local ownership and compromise.
5. State property
52. One of the objectives set in
the “Agenda 5+2” – to be satisfied prior to the closure of the Office
of the High Representative – is the “Acceptable and Sustainable
Resolution of the Issue of Apportionment of Property between State
and other levels of government».
53. State property in Bosnia and Herzegovina is estimated over
53% of the country’s territory. It covers around 2.7 million hectares
of forests, pastures, rivers, mineral resources, and strategic sites.
According to the Constitution of Bosnia and Herzegovina and confirmed
by court rulings, this property belongs exclusively to the State
of Bosnia and Herzegovina. In 2006, a State Property Disposal Ban was
adopted by the Parliamentary Assembly of Bosnia and Herzegovina
with the intent to temporarily prohibit the sale, transfer, or any
form of disposal of State-owned property until the adoption of comprehensive
State-level legislation on State property management. This legislative
measure was introduced to safeguard the sovereignty and territorial
integrity of Bosnia and Herzegovina by preventing any unauthorised
disposal or transfer of immovable State assets, particularly amid
ongoing disputes and tensions between the entities and the State
regarding ownership and control of public property.
54. The issue came into sharp focus in 2010, when Bosnia and Herzegovina
was conditionally granted a North Atlantic Treaty Organization (NATO)
Membership Action Plan, the final step before full membership talks. For
its activation, 63 prospective military sites had to be registered
as State property, 23 of them located in RS. Milorad Dodik, then
Prime Minister, agreed to this registration only on the condition
that the rest of the country’s State property be handed to the entities.
This condition was rejected.
55. This issue has some geopolitical aspects. There are fears
that if entities gain control over State property, foreign powers
could take control of strategic locations very close to EU territory.
Furthermore, given the high level of corruption and the cases of
misuse of public resources, granting unilateral control over assets
worth hundreds of billions of euros would require solid oversight
mechanisms.
56. In February 2022, the RSNA adopted the Law on Immovable Property
Used for the Functioning of Public Authority. The law effectively
classified certain immovable properties as assets of the RS and
subject to management and disposal by RS authorities, including
property assets previously considered to be owned by the State of
Bosnia and Herzegovina. The Constitutional Court of Bosnia and Herzegovina
declared the law unconstitutional, which sparked the escalation
that led to the current political crisis (see above). According
to the Constitutional Court of Bosnia and Herzegovina, the RS does
not have the constitutional competence to regulate State-level public
property assets because that jurisdiction belongs to the State of
Bosnia and Herzegovina.
57. The dispute is creating a serious barrier to the economic
development of Bosnia and Herzegovina, as many investment and development
projects involve State property assets, primarily agricultural and
forest land. On 12 September 2025, the Prime Minister of the Federation
of Bosnia and Herzegovina submitted to the Office of the High Representative
an official Initiative for amendments to the State Property Disposal
Ban, which would provide for exemptions that enable implementation
of infrastructure projects of public interest and strategic importance
for the Federation of Bosnia and Herzegovina and Bosnia and Herzegovina.
And on 18 October 2025, the RSNA repealed the Law on Immovable Property
adopted in 2022, that created a major hurdle.
58. Solving the issue of the apportionment of property between
the State, the entities and the other local level of governance
is therefore a crucial issue. On the institutional level, it is
necessary for the closure of the Office of the High Representative.
And on the economic and political level, it is required to allow
investment projects that are much needed for the economic development
and sustainability of the country.
6. Concluding remarks
59. The last resolution adopted
by the Assembly in 2024 congratulated the authorities of Bosnia
and Herzegovina for the pace of reforms since 2022. Since then,
the governing coalition created after the 2022 elections dissolved,
and political and institutional deadlocks impeded the formation
of another government.
60. Over the year, a serious political crisis unfolded. As we
are writing these lines, it seems that this crisis has found a solution
in the respect of the rule of law, with the implementation of the
decisions of the Constitutional Court and the Court of Bosnia and
Herzegovina, and regular elections. In spite of their shortcomings,
the institutions of Bosnia and Herzegovina have shown strong resilience.
61. During our visit in Sarajevo, we heard that the solution to
this crisis could create a momentum. The fundamental issue, in our
view, is the lack of confidence between political actors entrenched
for many years in confrontational rhetorics. However, the shared
objective of European Union integration may be a transformative
factor and help shift lines.
62. The problems that we detailed in this short memorandum are
all linked in one way or another, and all require a greater confidence
and real dialogue between the local stakeholders. In the face of
this lack of confidence, we think that the radical transformation
of the institutions of Bosnia and Herzegovina remains a long-term
objective. The pre-requisites for a complete overhaul of the Constitution
are not present in the reality of Bosnia and Herzegovina today.
Nevertheless, the institutional framework cannot stay unchanged
any longer, as the status quo does
not play in favour of an improvement of the situation. Immediate
reforms are needed to restore confidence and allow dialogue between
local stakeholders without the involvement of external actors.
63. In this regard, the question of the election law, especially
regarding the Presidency of the Republic, has for too long been
a bone of contention between the Croat and the Bosniac community
in the Federation. A solution must be found to overcome the distrust.
The legal formulas are known, the Council of Europe is ready to
provide all the required expertise to help draft a solution in line
with the European Convention on Human Rights. It is now for the
political representatives to seize the opportunity and not repeat
the errors committed in 2006, twenty years ago, when a reform was
at hand’s reach but failed by two votes.
64. The question of State property can find a solution, now that
the 2022 RS law has been withdrawn. Every level of government has
an interest in finding a quick solution. This could create a positive
impetus and allow for the development of local investments, providing
much needed employment. It would also satisfy one of the required
objectives for the closure of the Office of the High Representative.
65. The European integration process will induce changes in the
architecture of State institutions. The negotiation process requires
strong governance and swift decision making, in the pursuit of a
shared common objective. This process could, in turn, create the
required conditions allowing for the discussion and adoption of
a Constitution by the Bosnians themselves, turning the page over
the post-war power-sharing arrangements and opening the chapter
of a Bosnia and Herzegovina integrated in the European Union, for
the benefit of all its inhabitants.