Doc. 9288

5 December 2001

Bosnia and Herzegovina’s application for membership of the Council of Europe

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Anneli Jäätteenmäki, Finland, Liberal, Democratic and Reformers' Group

I. Conclusions of the committee

1.        I support the opinion of the Rapporteur of the Political Affairs Committee to invite Bosnia and Herzegovina to become a member of the Council of Europe.

2.        I propose, however, the following amendments to the draft opinion:

Amendment A

After paragraph 3, add the following paragraph:

Amendment B

In paragraph 13.iii.b, after the words "to ratify", add the words "as soon as possible and not later than within one year”.

Explanation:

The European Convention on Human Rights and its protocols are already incorporated in the Constitution of BiH by the Dayton Agreement and it is necessary to allow citizens to apply to the European Court on Human Rights as soon as possible.

Amendment C

After paragraph 13.iii.j., add the following paragraph:

      "to sign and ratify, within two years after its accession, the following conventions:

      and, within three years after its accession:

      -        the European Convention on Cyber-Crime."

Amendment D

After paragraph 13.iv.a., add the following paragraph:

Amendement E

In paragraph 13.iv.c, add "- Law on schools (BiH, Entities)"

Amendment F

In paragraphs 13.iv.c and d., after respectively the words "following laws" and the words "implement fully" add the words "in conformity with Council of Europe standards".

Amendment G

In paragraph 13.iv.d., replace "one year" by "two years".

Amendment H

In paragraph 13.v.c replace the words “which would replace the current system of Ombudsmen institutions at State as well as Entity levels” by the words “which would include the present Ombudsmen institutions at Entities level”.

Amendment I

In paragraph 13.v.e, after "Venice Commission", insert the following words:

Amendment J

Replace paragraphs 13.vii.a and b. by the following paragraphs:

*

* *

II.        Explanatory memorandum

      by Mrs Jäätteenmäki, Rapporteur

1.        Since January 1999 when the Committee of Ministers asked the Parliamentary Assembly to give an opinion on the application for membership by Bosnia and Herzegovina (BiH) to the Council of Europe, the Rapporteurs of the Committee on Legal Affairs and Human Rights, first Mrs Gelderblom-Lankhout, then myself, visited BiH several times, in most cases with the Rapporteur of the Political Affairs Committee. The Committee also held a meeting in BiH in October 1999.

2.        I visited BiH last from 10 to 14 June 2001. This was my fourth visit to the country since my appointment as Rapporteur in 1999, to replace the former Rapporteur Mrs Gelderblom-Lankhout. My previous visit was for the observation of the general elections which took place in November 2000. Following those elections the nationalist parties lost their majority and a new government formed by the Alliance for Change took over. This Alliance is composed of ten different parties which have no political affinities but, according to the High Representative, are devoted to working towards establishing democracy. They have a small majority.

3.        Contrary to my previous visits, all the meetings took place in Sarajevo, the capital of the State. Members of Parliament, Ministers, Prosecutors and members of the Supreme Court of Republika Srpska (RS) came to Sarajevo and we had joint meetings with their counterparts of the Federation of BiH. I would like to say that this is one step further towards the building of a State as such.

4.        During this visit I focused my interest on the functioning of the common institutions, the respect for human rights, including the return of refugees and displaced persons, education, the functioning of the judiciary and in particular the independence of judges.

A.       The functioning of the common institutions at State level

5.        It should be recalled that, according to the Dayton Agreement, which sets up the Constitution of Bosnia and Herzegovina, in its Appendix IV, Bosnia and Herzegovina is a Republic composed of two Entities: the Federation of Bosnia-Herzegovina and the Republika Srpska.

1.       The Government

6.        First of all, I should mention that the Common institutions at State level are limited according to the Dayton Agreement itself which confers most of the power on the Entities. There is a Council of Ministers comprised of five Ministers dealing with minor fields. But the most important matters, such as education, justice, military or foreign affairs, are dealt with at Entity level and even at cantonal level.

7.        The Rapporteur of the Political Affairs Committee concludes his comments about the BiH state under the Dayton Agreement by saying that “the highest State representative are now openly and convincingly committed to succeed in building a common State”.

8.        I agree with him, although it seems that under the Dayton Agreement this is not possible. The Dayton Agreement was intended to set up the conditions for peace. Six years after their adoption one can ask oneself whether the time has not come to revise them in order to adapt them to the situation and in particular to strengthen the common institutions.

2.        The Parliament

9.        As far as the Parliament is concerned, it is composed of two Houses - the House of Representatives and the House of Peoples. It now has an agenda, meets (although not regularly) and passes laws. During my visit a “collegium” of both Houses took place, which I was invited to address. A joint meeting was convened for 21 June in order to discuss the Election Law which should be passed before 22 June, a condition laid down by the Rapporteur of the Political Affairs Committee during his visit in May.

10.        Each Entity has its own Parliament but, according to some members of the Parliament of the Federation, they are not “symmetrical” since there is no House of Peoples in the RS and no Serb ”club” in the House of Peoples of the Federation. They think that following the decision of the Constitutional Court of July 2000 on the constituent people this should be changed.

11.        The parliament of the Federation meets every month since the election of the Alliance for Change.

12.        Commissions have been set up: I met the Commission for Human Rights and the Constitutional Commission and they too seem to be functioning. A budget has been adopted.

13.        They said that Parliament has passed more laws in the past two months than during the last two years.

14.        As already mentioned, I also met a joint delegation of the parliaments of the two Entities. They said that they meet regularly and that their committees also hold joint meetings on issues such as the fight against corruption which requires the common control of borders.

15.        In conclusion, I can say that there have been improvements in the functioning of the common institutions. However, it is obvious that these institutions should be progressively reinforced at the expense of the institutions at Entities level. But this is, as already mentioned, a consequence of the peace agreement and it will take time to change it.

B.        Respect for Human Rights

16.        All the people I met said that as long as the economic situation does not improve one cannot speak about respect for human rights. There is an extremely high level of unemployment and many people only survive thanks to the aid they receive from relatives abroad. The consequence is that a great number of young people leave the country and that only the elderly pensioned people return to it.

17.        This situation leads to a low degree of priority being placed on human rights protection which seems to be in the interests of some politicians.

18.        Another important right which is still not respected is the right to property. The Commission for Real Property Claims of Displaced persons and refugees, set up by Annex 7 to the Dayton Agreement, is responsible for issuing decisions. It has already issued around 150,000 decisions (200,000 claims are still pending). However, the Commission is not responsible for the implementation of its decisions. That is the task of the municipalities. The Chamber of Human Rights issues decisions on implementation and in some cases so does the Constitutional Court, which is competent to deal with individual applications. But when it comes to implementation, one is faced with a “domino” problem. In order to implement the decision the eviction of other persons is necessary and so on. For example, between 500 and 700 expulsions take place in Sarajevo every month. On the other hand some people prefer to continue to occupy an apartment while they are renting out their own. Recently the Chamber fixed fees for municipalities which do not implement decisions on ethnic grounds. The fact that there is still not a multidisciplinary police is an obstacle to the implementation of decisions of allocation of apartments.

19.        According to the figures given by the Minister for Refugees of the Federation, the total number of displaced persons and refugees is 558.000 (240.000 displaced persons and 347.000 refugees). 50.000 refugees returned from the RS. 85.000 are expected in the course of 2001.

20.        Other problems are linked to the return of refugees and displaced persons. For instance, the law on property differs from one place to another, pensions are not paid to people who leave the place where they have been working and there are no schools available.

21.        Social insurance is different in each Entity and as a consequence ill people are forced to go to hospital in the Entity to which they belong even if there is a much closer hospital in the other Entity.

22.        However, the decisions of the Human Rights Chamber and recommendations of the Ombudsman at State level are implemented at 70%.

C.        The media

23.        The media have much more freedom than in the past but there is still influence from political parties upon some media, mainly in rural areas. The situation in Sarajevo is better. There is also a difference between written media and electronic media. A Law on the regulation of media has not yet been passed, but a Communications Regulatory Agency was set up in March 2001. It allocates licences to the electronic media according to specific criteria.

24.        There is also a press council composed of representatives of five associations of journalists but it cannot be registered at State level for the time being.

25.        The main claim of journalists is that politicians stop interfering with the editorial policy of the media.

D.        The judiciary

26.        Two main problems were mentioned in the previous reports, that is the lack of independence of the judiciary and the absence of implementation of decisions.

27.        There is a lack of confidence of the citizens in their judiciary, which is accused of being under the influence of politicians and judges are accused of being corrupt.

28.        A law was passed in 2000 on the courts and the prosecutor which addresses the problem of the independence of the judiciary. Also in the Federation reforms have been undertaken according to which the background and the work of judges should be evaluated. In both Entities some disciplinary action has been taken against judges who were obviously politically biased or corrupt. Training for judges is being organised with the cooperation of the Council of Europe.

29.        To the question as to whether one can say that the judiciary is independent, the answer given by the Ministers was that some improvements are still necessary, but there have already been improvements since the change of government.

30.        An issue which I raised with different interlocutors is the one concerning the arrest of war criminals, which is a pre-condition to a reconciliation between the different ethnic groups.

31.        While some cooperation exists and some trials have started to take place in the Federation, there are still problems both to bring to trial indictees in the country itself and to arrest the more prominent war criminals and hand them over to the Tribunal in The Hague.

32.        Some are of the opinion that the arrest of war criminals is the responsibility of the signatories of the Dayton agreement and others think that a tribunal at State level would be necessary.

33.        I noted with satisfaction that on 2 October 2001, the RS national assembly adopted a Law on cooperation with the ITCY in The Hague, enabling the arrest of war crimes suspects and their transfer to the Hague, subject to previous scrutiny procedures by the local courts.

34.        The reshuffling of the judiciary continues with the assistance of the Venice Commission. It entails in particular the merger of the Constitutional Court and the present Chamber of Human Rights, which will disappear after the ratification of the European Convention on Human Rights by the State of Bosnia and Herzegovina. The work has already started and according to those concerned it should not encounter major problems.

35.        As far as the Ombudsman institution is concerned the situation is different in the sense that the Ombudsman is a national State institution which will continue to exist after the ratification of the ECHR by Bosnia and Herzegovina. With the same aim of reinforcing the State institutions, one should consider reinforcing the Ombudsman institution by integrating the Ombudsmen of the two Entities into the Ombudsman institution at State level.

E.        Education

36.        According to many of my interlocutors (the Minister of Education, the High Representative and Ambassadors in Sarajevo) education is unfortunately one of the fields most neglected by the international community.

37.        As already said, education is the responsibility of cantons. The Minister of Education of the Federation of BiH has no real power in the Croat cantons and is not even informed of what is going on in those cantons. He is, however, aware that both in the Croat cantons and in Republika Srpska Croat and Serb books are still used in the schools. He dismissed all his deputies who were nationalists. He is in favour of radical changes. For instance, he would like to have new textbooks in all schools instead of revised ones.

38.        Croat books are still used in the Croat cantons and Serb books in RS. He wants to have entirely new textbooks everywhere instead of revised books. He will be President of the commission in charge of the revision of books.

39.        Training for teachers were to be organised in the course of the summer. The Minister mentioned a problem concerning cooperation with an American association named “civitas” which is trying to impose a cursus.

40.        There is already a mixed school in RS attended by both Serbs and Bosnian children. But, on the other hand, 167 Bosnian children are not allowed to go to school in Mostar and must go elsewhere. There are schools where Serb children go to school in the morning and Bosnian children go in the afternoon.

41.        The law on the schools has not been passed.

F.        The Election law

42.        Since the Dayton Agreement elections have been organised every two years by the OSCE and for many years Bosnia and Herzegovina has been called upon to adopt its own election law. Unfortunately, so far it has not managed to do so and the last elections of November 2000 were again conducted under the temporary law set up by OSCE. The Next elections will take place in 2002.

43.        The Rapporteur of the Political Affairs Committee put the adoption of that law before 22 June 2001 as the only condition to take a decision on the accession.

44.        During my visit some members, including in the Alliance for Change, were opposed to these drafts on the ground that they are contrary to the European Convention on Human Rights, as voters would be forced to vote only for people belonging to the constituent people mentioned in the Constitution of each Entity. This is of course linked with the decision of the Constitutional Court of 7 July 2000 on the issue of the “constituent peoples”. However the Parliament has adopted the Law in August 2001.

45.        Both Constitutions should be changed following this decision. The decision taken following a request by the former President of Bosnia and Herzegovina, Mr Izetbegovic, stated that in order to comply with the Constitution at State level the Constitutions of both Entities should comprise the three “constituent peoples”, although as they currently stand the constitution of the Federation refers only to Bosnians and Croats and the Constitution of the RS only to Serbs.

46.        A deadline for the implementation of that decision was fixed by the OHR at March 2001, then extended by two months and it is still pending before the Constitutional Commissions in the Parliament.

47.        Of course, the Election Law will have to be amended following the amendments to the two constitutions, and there were some arguments in saying that one should proceed the other way round. But the adoption of the Election Law was considered as a test to the capacity of the State Parliament to pass a Law.

48.        I proposed that the Committee on Legal Affairs and Human Rights ask the opinion of the Venice Commission on the Election law. This opinion was adopted by the Venice Commission on 20 October last and it is contained in document CDL/Inf (2001) 21.

Conclusion

49.        I support the opinion of the Rapporteur of the Political Affairs Committee to invite Bosnia and Herzegovina to become a member of the Council of Europe.

APPENDIX

Programme of the visit of the Rapporteur

to Bosnia and Herzegovina

11 – 13 June 2001

Monday, June 11,

09:00-09:45 Welcome information, given by Dr Sonja MOSER-STARRACH, SRSG

       (CoE office Sarajevo)

10:00-10:45        Meeting with representative of CRPC-Commission for Real Property Claims of Displaced persons and refugees, Mr Steven SAGAL, Executive director

(at CRPC office, Danijela Ozme 4)

11:00-12:00 Meeting with representatives of the Bosnia and Herzegovina Federation Parliament Assembly,

House of Representatives:

Mr Enver KRESO, Chairman

Mr Ivan BRIGIC, Deputy

Ms Slavica GEBERT, Secretary

House of People:

Mr Ivo KOMSIC, Chairman

Ms Meliha ALIC, Deputy

Ms Nada ARNAUT, Secretary

(Hamdije Kresevljakovica 3)

12:00-12:45        Meeting with representatives of the Human Right Commission of House of the People and of the House of Representatives

(Hamdije Kresevljakovica 3)

13:00-14:30 Lunch hosted by Ambassador Mr Dieter WOLTMANN, acting head of OSCE mission to BiH

(Restaurant “Lovac”)

15:00-16:00        Meeting with representative of National Assembly of Republika Srpska

Mr Zoran Djeric, Vice-President

(Lukavica)

16:00-16:45 Joint meeting with Delegations of the Parliament Assemblies of the two Entities

(Lukavica)

17:00-18:00 Meeting with :

Mrs Biljana MARIC, Minister of Justice of Republika Srpska

Mr Zvonko MIJAN, Minister of Justice of Federation BiH

Mr Jovo ROSIC, President of Supreme Court of Republika Srpska

Mrs Suada SELIMOVIC, President of Supreme Court, Federation BiH

      (at Ministry of Justice, Federation BiH)

18:00-18:30 Meeting with Prosecutors,

Mr Vojislav DIMITRIJEVIC, Prosecutors of Republika Srpska

(at Ministry of Justice, Federation BiH)

18:30-19:45        Portuguese National Day, hosted by H.E. Mr Luis BARREIRA de SOUSA

(at residency, Dzinina 20, Kovaci)

20:00        Dinner hosted by BiH HR Ombudsman Mr Frank ORTON with Mrs Mediha FILIPOVIC, MP

(at restaurant “JEZ”)

Tuesday, June 12,

08:45-09:45 Meeting with:

Mr Gojko SAVANOVIC, Minister of Education of Republika Srpska

Mr Mujo DEMIROVIC, Minister of Education, Science, Culture and Sport of Federation of Bosnia and Herzegovina

10:00-11:00        Meeting with Collegiums of the House of Representatives and House of people, Bosnia and Herzegovina Parliament Assembly

(Trg BiH)

11:30-12:30 Meeting with HR Mr Wolfgang PETRITSCH

(at OHR)

12:30-14:00 Lunch, hosted by BiH Parliament Assembly

(Restaurant “La Familia”)

14:00-15:00        Meeting with Constitutional Commissions of BiH Parliament assembly

(Trg BiH)

15:00-16:00 Human Right commission

(Trg BiH)

16:45-18:00        Meeting with Mr Mehmed HALILOVIC, Deputy Ombudsman of FBiH media department,

Mr Jerker TORNGREN, Communications Regulatory Agency, and with representatives of media:

Ms Borka RUDIC, Independent Journalist Association

Mr Mehmed HUSIC, ONASA news agency

Mr Emir HABUL , Oslobodjenje-newspaper

Ms Marija TOPIC, TVBIH

(at CoE office Sarajevo)

20:00        Dinner hosted by HE Mr Nils ELIASSON, Sweden Ambassador and doyen of Diplomatic Core in BiH

(at residency)

Wednesday, June 13,

10:30-11:30        Meeting with President of Constitutional Court, Ms Snjezana SAVIC,

(Constitutional Curt, Presidency building)

12:00-12:45        Meeting with:

(at Ministry, Alipasina)

15:00-16:00        Meeting with representatives of the Helsinki Committee for Human Rights,

Mr Branko TODOROVIC, HCHR of Republika Srpska

Mr Srdjan DIZDAREVIC, HCHR of BiH Federation

       (at CoE office Sarajevo)

16:00-17:00 Meeting with Ombudsman of Federation BiH and Republika Srpska:

Mr Esad MUHIBIC "

Mrs Slavica SLAVNIC (Republika Srpska)

Mr Franjo CRNAC "

Mr Darko OSMIC "

(at CoE office Sarajevo)

17:00-17:45 Meeting with representative of Human Right Chamber for BiH

Ms Therese NELSON, Executive Director

Mr Peter KEMPES, Registrar

19:00 Dinner hosted by Mr Peter IISKOLA, UN(HR)

(Restaurant “La Familia”)

Reporting committee: Political Affairs Committee (Doc. 9287)

Committee for opinion: Committee on Legal Affairs and Human Rights

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

Opinion approved by the committee on 29 October 2001

Secretaries to the committee Ms Coin, Ms Kleinsorge, Mr Ćupina

1 See Doc. 9287 tabled by the Political Affairs Committee.