On 18 January 2024, the Constitutional Court of Bosnia and Herzegovina held its 140th  plenary session, where it considered requests for constitutional review and appeals.

The Constitutional Court held this plenary session online due to unexpected and objective circumstances (flight cancellations due to worsening weather condition, which prevented international judges from arriving).

At the beginning of the plenary session, the Constitutional Court considered the Information on the previous activities of the Constitutional Court, which were undertaken with the aim of enabling the functioning of the Constitutional Court under the new circumstances. In addition, the Constitutional Court considered all the future activities and measures that the Constitutional Court will undertake in order to ensure unhindered operation of the Court.

Within this agenda item, the Constitutional Court made relevant conclusions. One of the conclusions is that the Constitutional Court will draft an appropriate strategy in the upcoming period that will enable further unhindered operation of the Constitutional Court.

The Constitutional Court once again calls on the competent legislative bodies of the Entities (the House of Representatives of the Federation of Bosnia and Herzegovina and the National Assembly of the Republika Srpska) to immediately fulfil their constitutional obligation and select judges for the Constitutional Court of Bosnia and Herzegovina without further delay. All of this is with the aim of enabling unhindered operation of the most important institution in Bosnia and Herzegovina.

Specifically, although almost two years has passed since the retirement of Judge Mato Tadić, more than a year since the retirement of Judge Miodrag Simović and although Judge Zlatko M. Knežević has recently went to an early retirement of (at his own request), the legislative bodies of the Entities did not select new judges for the Constitutional Court to date. This is, thus, in direction violation of and undermining the Dayton Peace Agreement and, within its framework, Annex IV to the Constitution of Bosnia and Herzegovina.

In this connection, we would like to remind that the Constitutional Court of Bosnia and Herzegovina, which has been established under Article VI of the Constitution of Bosnia and Herzegovina as an independent guardian of the Constitution, is the highest guarantor of the protection of the rule of law in BiH. In addition, it is the institutional guarantor of the protection of human rights and fundamental freedoms under the Constitution of Bosnia and Herzegovina and instruments under the Annex I to the Constitution. The Constitutional Court of Bosnia and Herzegovina is not part of the legislative, executive or regular judicial power, but is positioned under the Constitution of Bosnia and Herzegovina as a special independent and autonomous authority. The Constitutional Court, based on the Constitution, acts as a corrective mechanism for the other three branches of governmental power and as such is not obliged to account to them. Only the Constitutional Court of Bosnia and Herzegovina can issue regulations and general acts concerning its work and its role established under the Constitution of Bosnia and Herzegovina. It follows from all of this that the Constitutional Court of Bosnia and Herzegovina enjoys complete autonomy and independence from any branch of government in the constitutional and legal system of Bosnia and Herzegovina, which is afforded to it exclusively by the Constitution of Bosnia and Herzegovina.

The Constitutional Court emphasizes that even in these exceptional and very challenging circumstances, the Constitutional Court has a complete legality and legitimacy in its work, deriving directly from the Constitution of Bosnia and Herzegovina and its Rules, which the Constitutional Court adopts based on the Constitution of Bosnia and Herzegovina. Decisions of the Constitutional Court are final and binding, and any failure to comply with them constitutes a criminal offense.

Of the decisions adopted at the plenary session, the Constitutional Court singles out the following:

U 21/22 -   In deciding the request of Mr. Bakir Izetbegović, First Deputy Chairman of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, at the time of filing request, for review of the constitutionality of Article 5, paragraph 3 of the Rules on Uniforms of the Armed Forces of Bosnia and Herzegovina No. 11-02-3-1864-13/16 of 24 April 2017 which reads “Religious symbols may be worn with the uniform in such a way that they are not visible”, the Constitutional Court hereby established that the disputed provision is in accordance with Article II(3)(g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.

Decision summary:

In deciding the specific request, the Constitutional Court, inter alia, recalled that the European Court in its case law points out that it can, if necessary, take into account any consensus and common values emerging from the practices of the States Parties to the Convention.

The court also pointed out that it is evident from the Rulebook on Uniforms that the rules on the visible display of religious symbols in the Armed Forces of Bosnia and Herzegovina apply equally to all members and that the protection of the principle of neutrality in the Armed Forces of Bosnia and Herzegovina is compatible with the values on which the Constitution of Bosnia and Herzegovina and the European Convention are based. The Constitutional Court considered that the Ministry of Defense of Bosnia and Herzegovina, due to the specific character of the Armed Forces of Bosnia and Herzegovina, may require its members to refrain from expressing certain religious beliefs at the workplace. In this connection, the Constitutional Court recalls that the European Court of Human Rights emphasizes the subsidiary role of the Convention mechanism, according to which domestic authorities have direct democratic legitimation and are in a better position to evaluate the needs and conditions as to the issues of relationship between the State and different religions, on which opinions within a democratic society may reasonably differ widely. In addition, the Constitutional Court pointed out that the contested provision does not limit religious freedom in general in the Armed Forces of Bosnia and Herzegovina, and that a military person shall be entitled to perform religious activities in order to exercise religious freedoms in accordance with the specifics of each religion. In addition, the Constitutional Court pointed out that the challenged provision does not limit religious freedom in general in the Armed Forces of Bosnia and Herzegovina, and that military personnel are enabled to perform religious activities in accordance with the specifics of each religion. The Constitutional Court concluded that the ban on wearing the hijab with the uniform during military service in the BiH Armed Forces is not in violation of the right to freedom of religion.

U 11/23 – In deciding the request of the Cantonal Court in Tuzla for review of constitutionality Article 3, paragraph 1, subparagraph 4 and paragraph 2 and Article 12 of the Law on Communal Fees, the Constitutional Court hereby established that the disputed provisions are not consistent with Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention.

U 14/23 – In deciding the requests of Cantonal Court in Tuzla for review of constitutionality of for review of constitutionality of Article 32(5), Article 34(3), Article 35(1)(a) and Article 36(1)(a) and (c) of the Law on the Communal Utility Management of the Posavina Canton, Article 10(2) and (3), Article 11(1) and Article 14 of the Decision on Communal Utility Fee, Articles 3, 4, 6, 9, 14, 17 and 20 of the Decision on Communal Utility Fee and Article 3(2) Article 4(1), Article 9, Article 12(3), Article 14, Article 17(1) and (7) and Article 20 of the Decision on Communal Utility Fee of the Domaljevac-Šamac Municipality, the Constitutional Court  hereby established that disputed provisions of the Law on the Communal Utility Management of the Posavina Canton are compatible with Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article II(4) of the Constitution of Bosnia and Herzegovina and Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The requests for review of constitutionality of the provisions of the Decision on Communal Utility are rejected as inadmissible as the Constitutional Court is not competent to take a decision.

U 20/23 – In deciding the requests filed by the Cantonal Court in Tuzla  for review of the constitutionality of Article 102, paragraph 2 of the Law on Pension and Disability Insurance  and Articles 7, 14 and 20 of the Law on the Establishment of the Institute for Medical Expert Examination, the Constitutional Court hereby established that the provisions of the cited laws are in accordance with Article II (3) (e) of the Constitution of Bosnia and Herzegovina and Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article II (3) (k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

U 21/23 –  In deciding the request filed by Denis Zvizdić, the Second Deputy Chairman of the House of Representatives of the Parliamentary Assembly of BiH and 14 Members of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, the Constitutional Court hereby established that Article 280a of the Criminal Code of the Republika Srpska (Official Gazette of the Republika Srpska, 64/17, 104/18, 15/21, 89/21, www.ohr.int - Decision of the HR nos. 12/23 and 73/23) is not compatible with Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and quashed the disputed provision of the law.  It further established that Articles 208a, 208b, 208v, 208g, 208d and 208đ of the cited law are compatible with Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Decision summary:

In considering the constitutionality of Article 280a, the Constitutional Court found that the scope of acts which could be regarded as punishable under Article 280a (Damage to the reputation of the Republika Srpska and its Peoples) of the contested law called into question the proportionality of the interference by way of criminal sanctions. In addition, the Constitutional Court concluded that criminal offence referred to in Article 280a of the contested Law, which was punishable by imprisonment, left an open the possibility for applying the measures stipulated by the Criminal Procedure Code to ensure the presence of the accused person and successful conduct of the criminal procedure, or the possibility for ordering the accused into custody, which additionally confirmed the deterrent effect of Article 280a. The Constitutional Court concluded that Article 280a was not proportionate to the aims for which it was enacted and that such interference with freedom of expression was not "necessary in a democratic society". In considering Article 208a, 208b, 208v, 208g, 208d and 208đ, the Constitutional Court noted that the fact that defamation, after a long period, was again prescribed as a criminal offense, was not in itself against the Constitution of Bosnia and Herzegovina or the European Convention. However, the Constitutional Court also considered it necessary to point out that, although it did not judge the aforementioned provisions to be unconstitutional, the competent authorities in Republika Srpska should act with special care in the cases of criminal prosecution for the offences prescribed by these articles, and notably take care to apply the challenged provisions in accordance with standards under the well-established case law of the European and Constitutional Court. The Constitutional Court further emphasized that competent authorities should, as much as it is possible, avoid using legal remedies that could deter citizens, notably journalists, from expressing critical opinions on issues of public interest due to fear of criminal and other sanctions. The Constitutional Court concluded that Articles 208a, 208b, 208v, 208g, 208d and 208đ of the Criminal Code of the Republika Srpska were compatible with Article II(3)(h) of the Constitution of BiH and Article 10 of the European Convention.

AP 3993/22  (FACE d.o.o. Sarajevo) –  In this case the Constitutional Court established the violation of principle of legal certainty as one of the basic forms of the rule of law, which is an inseparable element of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms is hereby established in respect of the Ruling of the Supreme Court of the Federation of Bosnia and Herzegovina, number 65 0 Ps 387307 22 Rev 2 of 24 January 2023. A decision-making is hereby postponed in respect of the appellate allegations against the Judgment of the Cantonal Court in Sarajevo, number 65 0 Ps 387307 16 Pž 4 of 5 July 2022, and the adoption of a decision on the violation of the right to a trial within a reasonable time, pending the adoption of the decision of the Supreme Court on the enforcement of the present decision of the Constitutional Court. The Constitutional Court concludes that it is in the interest of the parties and the proper conduct of the proceedings that the Constitutional Court’s Decision on Interim Measure, no. AP-3993/22 of 27 April 2023 remains legally effective until the end of the proceedings before the Constitutional Court to decide on the part of the appeal that was postponed by this decision.

AP 1520/23 (Ivica Mišković) –  The Constitutional Court, inter alia, established that there has been a violation of Article II (3) (d) of the Constitution of Bosnia and Herzegovina and Article 5 paragraph 3 in conjunction with paragraph 1 item c) of the European Convention. The violation has been found as the Basic Court failed to carry out the review of the justification of the appellant’s detention within the statutory time limit prescribed under Article 202 (1) of the RS Criminal Procedure Code.

AP 3158/23 (R.J.) –  The Constitutional Court concluded that there has been a violation of the appellant's right to the impartiality of the court as an aspect of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention.  The Constitutional Court has reached the above conclusion because the appellant's request for disqualification was not considered in the light of an objective test and a perception of an outside observer, given that the evidence contains the name of a member of the First Instance Disciplinary Commission, which the Commission assessed in connection with the appellant's disciplinary accountability.

In addition, the Constitutional Court has examined a number of appeals concerning the violation of the right to a fair trial within reasonable time adopting the decisions in those cases.

All decisions adopted at today's plenary session will be delivered to the applicants/appellants within one month. It will published as soon as possible on the website of the Constitutional Court of Bosnia and Herzegovina.