Doc. 8390

26 April 1999

Situation in Bosnia and Herzegovina – the functioning of the institutions, the implementation of certain laws and the protection of human rights

Information report

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Hanneke Gelderblom-Lankhout, Netherlands, Liberal, Democratic and Reformers' Group

I.       Introduction

1.        In January 1999 the Committee of Ministers formally invited the Assembly to formulate an opinion on the application of Bosnia and Herzegovina for Council of Europe membership. Following this decision, the two rapporteurs, Mr Bloetzer for the Political Affairs Committee and Ms Gelderblom-Lankhout for the Committee on Legal Affairs and Human Rights, visited the country from 23 to 26 March 1999.

2.        The aim of their visit was, in co-ordination with the Bosnia and Herzegovina authorities and Mr Westendorp, High Representative responsible for the Civil Application of the Dayton Agreements, to draw up a list of conditions which Bosnia and Herzegovina would have to fulfil respectively prior to and the commitments it would have to enter into upon accession.

3.        According to the programme of the visit, time was to be spent in both entities, that is to say the Federation of Bosnia and Herzegovina and the Republika Srpska.

4.        However, during the two weeks prior to the visit, a number of significant events took place, as a result of which the aim of the visit was amended.

5.        On 5 March 1999 the High Representative decided to dismiss Mr Poplasen, who had been elected President of the Republika Srpska in September 1998, because of his refusal to appoint a government which took into account the election results. On the very same day, the result of arbitration concerning the town on Brcko was announced. The town was to become an autonomous zone placed under state authority, no longer divided between the two entities.

6.        These two decisions which, because they were announced on the same day, were felt to be particularly provocative by the Republika Srpska, greatly displeased the Republika Srpska authorities, who decided to withdraw from the common institutions for an indefinite period.

7.        On 16 March the Federation of Bosnia and Herzegovina’s Deputy Minister of the Interior, a Croat, was the victim of a bomb attack, which ultimately cost him his life. This angered the Croats, who, in turn, announced a one-week moratorium on their participation in the common institutions from 22 to 28 March.

8.        Moreover, Nato launched its first air-strikes on Yugoslavia on the evening of Wednesday 24 March and the airspace over Bosnia and Herzegovina and Croatia was closed. The rapporteurs did not visit the Republika Srpska because their journey had to be interrupted. The programme of the visit is reproduced in Appendix I. A letter has been sent to the authorities of Republika Srpska expressing the wish of the rapporteurs to go there as soon as possible (see Appendix II).

9.        In the light of these events, it was decided that the visit should still go ahead, but that the rapporteurs should focus on the situation in the country with a view to submitting an information report to the Assembly.

10.        This document considers the functioning of the judicial authorities, the implementation of certain laws and the protection of human rights. The political situation is discussed in the information report drawn up by the Political Affairs Committee (Doc 8381).

11.        This document focuses on the following subjects:

- Election Law;

- Law on the Property and Return of Refugees;

- media;

- constitutions of the entities;

- human rights situation;

- education system;

- composition of the delegation.

Finally, a number of preliminary conditions that need to be fulfilled in respect of the above subjects are listed.

II.       Election Law

12.        After the September 1998 elections, a number of criticisms were made concerning the Electoral Law, particularly the fact that it favoured parties set up on an ethnic basis. The adoption of a permanent Election Law had therefore been established as a priority and it seemed that this could be achieved fairly quickly.

13.        The members of parliament we met and the Minister of Foreign Affairs, Mr Prlic, complained that the new Election Law had still not been adopted. They claimed that the Head of the OSCE mission in Bosnia and Herzegovina, who is responsible for organising elections, should take charge of drawing up an election bill. Mr Prlic said that the Bosnia and Herzegovina Government could draw up such a bill in a matter of weeks if asked to do so.

14.        The Head of the OSCE mission, Ambassador Barry, said that local experts were working on the bill together with the Office of the High Representative. When questioned, the High Representative declared that a group of seven local experts was in fact working on the text with a group of international experts.

15.        The High Representative thought that a draft report on the technical aspects of the bill should be ready by July. It would then be necessary to opt for an electoral system and, finally, to amend the constitution. He proposed that Bosnia and Herzegovina's accession to the Council of Europe should be subject to the working group’s bill being finalised and tabled before parliament.

16.        We think that, as stated in the Madrid Declaration of December last year, the bill should be adopted by parliament before Bosnia and Herzegovina’s accession to the Council of Europe.

III.       Law on the Property and Return of Refugees

17.        The question of the return of refugees and of minorities in particular is partly linked to that of property law. One problem has specifically been mentioned, that is, those who return tend to be the older generations, while younger people remain in the host country. This leads to a high proportion of old people who become a heavy economic burden for the country and the country is deprived of the young generation who could contribute to moving the country away from the policy based on ethnic segregation.

18.        The previous report devoted to the functioning of the institutions for the protection of human rights (Doc. 7833), drawn up two years ago, called for legislation on property rights. Since then, such a law was passed in the Federation in 1997 and 80% of claims have been settled. This is encouraging, especially bearing in mind the size of the task. However, the Sarajevo-based Housing Authority, which was responsible for allocating housing, was dissolved in December 1998 and not re-appointed until March 1999. It was still without a new director at the time of the rapporteurs’ visit.

19.        In the Republika Srpska, the law was only passed recently and the current situation is similar to that which the Federation experienced one year ago, that is, the authorities are making no attempt to follow up property claims.

20.        In both entities there is a lack of will to deal with property claims. The local police, who should assist in guaranteeing the rights of minorities wishing to return to their former property, is not cooperating.

IV.       Media

21.        The rapporteurs were unable to meet journalists because their visit was cut short. However, the Shadow Cabinet representative whom they met did mention the need for legislation on the electronic media. He accused the majority party, the SDA, of manipulating television companies.

V.       Constitutions of the two entities

22.        The members of parliament whom the rapporteurs met insisted on the need for the constitutions of both entities to be amended so that they conformed with the state constitution, which specifically recognises the three ethnic components: Bosnians, Croats and Serbs. The current Constitution of the Federation only recognises Bosnians and Croats while that of the Republika Srpska only recognises Serbs.

VI.       Human rights situation

23.        The abolition of the death penalty in the new Criminal Code adopted on 29 July 1998 should be welcomed.

24.        Human rights, it should be remembered, are protected by a series of highly developed instruments and mechanisms, although the Venice Commission stressed in its opinion on the constitutional situation in Bosnia and Herzegovina (CDL-INF (96) 9) that these presented “an unusual degree of complexity”. We are of the same opinion. The protection of human rights is essentially the responsibility of the Commission on Human Rights. Set up under Annex 6 of the Dayton Agreements, the Commission on Human Rights comprises two bodies: the Office of the Ombudsperson and the Chamber of Human Rights.

25.        Dayton not only stopped the war but also started the process of the return to normality. However, this process is dependent upon the will of the people in Bosnia and Herzegovina. We can only assist them in trying to do so.

26.        Ms Gret Haller, Ombudsperson for Human Rights, showed the rapporteurs part of her 1998 annual report in which she described a large number of recommendations submitted to and implemented by the authorities. This represented a significant improvement on the situation mentioned in previous reports.

27.        The Chamber of Human Rights does not see this in the same light, at least according to the opinion expressed by its Chief Registrar at the meeting with NGOs concerned with human rights.

28.        At the same meeting, the Ombudsperson for Human Rights drew attention to the fact that Bosnia and Herzegovina might be discriminated against when its application for membership was considered, because it was the only country in which the European Convention on Human Rights was applicable even before its accession to the Council of Europe. To require Bosnia and Herzegovina to apply the Convention fully would be discriminatory since all other countries were given at least one year following their accession in which to ratify it.

29.        An ombudsperson for human rights, following the example of the Ombudspersons of the Federation, has still not been established in the Republika Srpska, despite the Assembly’s Recommendation 1337 (1997).

30.        In their report on the conformity of the legal order of Bosnia and Herzegovina with Council of Europe standards, the eminent jurists concluded:

VII.       Education system

31.        A report on segregation and discrimination in education in the Federation of Bosnia and Herzegovina, drawn up by the International Human Rights Law Group, was made available to the rapporteurs (see also the report by the Committee on Culture and Education dealing with education in Bosnia and Herzegovina, Doc 8385).

32.        According to this report, the general accuracy of which has been confirmed by the Head of the Council of Europe Education Department, who from April 1998 was also co-Chairperson with OHR of the Sarajevo Education Steering Group, the Federation Ministry of Education issued a directive in 1997, instructing the cantonal authorities to implement a dual curriculum throughout the Federation. The directive made provision for three options in areas with minority ethnic groups: separate schools for the ethnic minority, separate classes within the same school for different ethnic groups or common schools with separate classes on “national” subjects for children from different ethnic groups.

33.        Although this directive has since been annulled, it is still used. It helped legitimate a de facto segregation.

34.        A committee has been set up to establish a common curriculum to replace the current decentralised ethnic curricula, but the work is facing a number of political obstacles.

35.        According to the Dayton Agreements, authority for education is the responsibility of cantons within the Federation, and of the entity of the Republika Srpska. Consequently, the education system and curriculum in the Republika Srpska are very similar to those in FRY (Serbia).

36.        Since education represents the only hope of training future generations in the respect of tolerance and differences, it is vital that it should be free from any kind of ethnic discrimination. Sarajevo should be the first city to revive the spirit of ethnic pluralism in its housing and education systems.

VIII.       Composition of the delegation to the Parliamentary Assembly

37.        The special guest delegation to the Parliamentary Assembly currently comprises five members. It was originally supposed to have four members, in accordance with the usual criteria, but this number was increased to five in order that both entities and the opposition could be represented. However, the opposition is not actually represented. The delegation, whose members are appointed on an ethnic basis, is composed of two Republika Srpska representatives and three from the Federation (two Bosnians and one Croat).

38.        The members of parliament whom they met told the rapporteurs that they intended to ask for the number of members to be increased to six. Their objective was not to include a representative of the opposition but, on the contrary, to boost the number of representatives of the majority party, the SDA, on the grounds that the size of the political parties should be mirrored by the composition of the delegation. They claimed that the High Representative supported this request.

IX. Preliminary conclusions

39.        In the light of the above, we propose the following list of conditions which Bosnia and Herzegovina should fulfil:

i.       Election Law

-       adoption of the new permanent Election Law by Parliament.

ii.       Protection of human rights

-       review of legislation to bring it into line with the European Convention on Human Rights;

-       assumption of responsibility of the State for the funding of the Constitutional Court and of the Commission on Human Rights;

-       establishment of an ombudsperson in the Republika Srpska.

iii.       Law on the Property and Return of Refugees

-       guarantee by the two entities of the right to return of refugees and to housing;

-       implementation by the Federation of the decisions of the Chamber of Human Rights concerning housing;

-       establishment by the Republika Srpska of a system for property claims.

iv.       Media

-       adoption of an electronic media law.

v.       Education system

- removal from all school textbooks of material liable to incite ethnic tension and hatred;

- review of the education system in order to eradicate all aspects of ethnic segregation.

vi.       Composition of the special guest delegation

-       inclusion of a representative of the opposition in the delegation.

APPENDIX I

Programme of the visit of the Rapporteurs to Bosnia and Herzegovina

(23-26 March 1999)

Tuesday, 23 March 1999

14:45       Arrival to Sarajevo of Mr Peter Bloetzer

17:00       Meeting with Mr Halid Genjac, Speaker of the House of Representatives and Mr Izet Žigić, Vice-Speaker of the House of Peoples

18:00       Meeting with leaders and representatives of political parties

19:30       Dinner hosted by Special Guest Delegation of Bosnia and Herzegovina to the Council of Europe, Chairman, Mr Edhem Bičakčič (Prime Minister of the Federation of Bosnia and Herzegovina)

Wednesday, 24 March 1999

09:00       Meeting with Dr Jadranko Prlić, Foreign Affairs Minister of Bosnia and Herzegovina

10:00       Meeting with Ambassador Robert Barry, Head of OSCE Mission

11:00       Meeting with H.E. Carlos Westendorp, High Representative

12:00       Meeting with H.E. Mr Alija Izetbegović, Member of the Presidency of Bosnia and Herzegovina

12:35       Arrival to Sarajevo of Mrs Hanneke Gelderblom-Lankhout, Rapporteur of the Committee for Legal Affairs and Human Rights

14:00       Meeting with Alternative Council of Ministers (opposition)

15:30       Meeting with Human Rights Center – University of Sarajevo and representatives of NGO's

17:00       Meeting with Dr Haris Silajdžić, Co-Chairman of the Council of Ministers of Bosnia and Herzegovina

18:00       Meeting and reception of ambassadors of the Council of Europe member states accredited in Bosnia and Herzegovina, hosted by the H.E. Kalman Kocsic, Ambassador of the Hungarian Republic in Bosnia and Herzegovina

20:00       Dinner hosted by H.E. Mrs Gret Haller, Human Rights Ombudsman in Bosnia and Herzegovina

Thursday, 25 March 1999

APPENDIX II

Letter of 25 March 1999 from Mr Peter Iiskola, Representative of the Council of Europe Secretariat in Bosnia and Herzegovina to H.E. Zivko Radisic, Chair of the Presidency of Bosnia and Herzegovina

…

I am most grateful for your kindness to have an open dialogue in matters relating to the relations with the Council of Europe and for your kindness to always receive us. The Secretariat of the Council of Europe is most grateful for all your kind arrangements in preparation for the meetings with the Rapporteurs Mr Peter Bloetzer (Switzerland) and Mrs Hanneke Gelderblom-Lankhout (Netherlands) from the Parliamentary Assembly of the Council of Europe.

Unfortunately, due to the situation in the region, we must postpone this visit and the programme of today and proceed to the closest open airport, probably somewhere in Italy. So, also from the viewpoint of the time-table the visit would be impossible, because the closed airspace in the region forces us to leave immediately from Bosnia and Herzegovina. The Rapporteurs would like to fulfil their mission at a later stage, so if you allow me, Excellency, I must apologise for the postponement, but I hope we will have the opportunity to resume our planned meetings with the Rapporteurs as soon as possible.

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Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc. 8303 and Reference No 2354 of 25 January 1999

Information report approved by the committee on 26 April 1999