In the course of the session so far, the Constitutional Court has adopted, inter alia, the decisions no. U-6/25, U-7/25 and U-8/25.
By the decision no. U-6/25 the Constitutional Court has found that the Law on Special Register and Public Aspect of Work of Non-Profit Organizations (Official Gazette of the Republika Srpska, 19/25) is not compatible with Article II(3)(i) of the Constitution of Bosnia and Herzegovina and Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. For that reason, the Court suspended ab initio the disputed law and ordered that it shall cease to be in effect as of the date of its publication in the Official Gazette of the Republika Srpska, 19/25.
In the reasons of the decision, the Constitutional Court invoked the general principles in the case law of the European Court of Human Rights concerning the important role of associations in a democratic society. It further referred to the relevant case law in which the European Court deliberated on the Foreign Agents Act of Russia, whose contents are almost identical to the disputed law, and found that that law was not in compliance with freedom of association under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court has followed the referenced case law and concluded that the disputed law, which introduced the new categories of “non-profit organisations” and “agents of foreign influence” with special obligations and restrictions, completely excludes the freedom of non-profit organizations to influence representatives of public authorities and, thus, non-profit organisations are prohibited from carrying out their core activities. It also points out that the broadly formulated terms of “non-profit organisations” and prohibited “political action” and “political activities” are not in compliance with the requirement of foreseeability as they make it impossible for civil society organizations to anticipate the limits of their permitted activities. On the other hand, such formulation allows public authorities to classify any activity of civil society organizations as prohibited and to sanction it. It is further stated that the associations that engage in “political action” or “political activities” and are financially or in some other way assisted by foreign entities are qualified as “agents of foreign influence” and that such qualification has a strong chilling and stigmatizing effect and significantly complicates their work, creating a negative perception of these associations in the public. In that regard, the court points out that the right of associations to receive donations from abroad follows from the Fundamental Principles on the Status of Non-Governmental Organisations in Europe and Recommendation CM/Rec(2007)14 of the Committee of Ministers of the Council of Europe to Member States on the Legal Status of Non-Governmental Organisations in Europe, and the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms. However, despite this, the disputed law subjects foreign donations to a rigorous reporting regime and routine and unscheduled controls, with the obligation for associations that receive such donations to label all materials they distribute “with a label of the non-profit organisation”, regardless of whether there is any connection between such foreign financing and the alleged “political activity” or “political action”. In addition, the disputed law lacks provisions guaranteeing access to effective legal remedies in order to challenge or seek review of decisions taken on the basis of that law, as pointed out by the Venice Commission and the ODIHR (OSCE Office for Democratic Institutions and Human Rights) in their joint opinion on the draft of the disputed law. Finally, the Constitutional Court observes that the only sanction prescribed for “political activities” or “political action” under the disputed law is ban on work and criminal liability of responsible persons. Based on the foregoing, the Constitutional Court considers that the introduction of the new legal categories of “non-profit organisations” and “agents of foreign influence”, as well as a rigorous reporting regime, the possibility of routine and unscheduled controls, and the obligation of the non-profit organisations to label the materials they distribute with “a label of the non-profit organisation”, with the prospect of an exclusive sanction in the form of a ban on work and criminal liability of the responsible persons, does not correspond to “a pressing social need”, that is, it was not necessary in a democratic society.
By the decision no. U-7/25 the Constitutional Court found that the Law on the Non-Application of Laws and Ban on Operation of Extra-Constitutional Institutions of Bosnia and Herzegovina (Official Gazette of the Republika Srpska, 19/25), the Law Supplementing the Criminal Code of the Republika Srpska (Official Gazette of the Republika Srpska, 19/25), the Decision on Measures and Tasks Arising Out of Unconstitutional Decisions and Actions of Extra-Constitutional Institutions of Bosnia and Herzegovina (Official Gazette of the Republika Srpska, 19/25) and paragraphs 3, 5 and 6 of the Conclusions of the National Assembly of the Republika Srpska adopted at the 17th special session held on 26 February 2025, are not compatible with Articles I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina. For that reason, the court suspended ab initio the disputed laws and decision and ordered that they shall cease to be in effect as of the date of their publication in the Official Gazette of the Republika Srpska, 19/25, and paragraphs 3, 5 and 6 of the contested conclusions as of the date of their adoption. In the reasons of the decision the Constitutional Court invoked its own case law relating to the issue of distribution of responsibilities between the Entities and the State of BiH, from which it can be inferred that issues that are not explicitly listed in Article III(1) are not necessarily an exclusive responsibility of an Entity, given that the Constitution of BiH stipulates additional responsibilities of the State of BiH in other provisions (for example, Articles I(1), II(7), III(1)(a), III(5)(a), IV(2), V(1) and V(3)(a)). The Constitutional Court also referred to the case law under which the responsibilities of the State of BiH in the field of judiciary and security that have been established under Article III(5) of the BiH Constitution are consistent with the BiH Constitution. Lastly, the Constitutional Court considers that the procedure of “restoring” responsibilities to the Entities that have been established as responsibilities of BiH under Article III(5) of the BiH Constitution is not per se incompatible with the BiH Constitution, but that the Parliamentary Assembly of BiH is exclusively responsible for this issue.
Having analysed the constitutionality of the disputed Law on the Non-Application of Laws and Ban on Operation of Extra-Constitutional Institutions of BiH, the Constitutional Court points out that that law fully excludes the application of the Law on the High Judicial and Prosecutorial Council of BiH, the Law on the State Investigation and Protection Agency, the Law on the Court of BiH and the Law on the Prosecutor’s Office of BiH. The court points out that in that way the sovereignty of the State of BiH is de facto and de iure abolished in one part of its territory and the responsibility in the field of judiciary and security is essentially “restored” to the RS Entity. However, as explained previously, the Parliamentary Assembly of BiH is exclusively responsible for the procedure of “restoring” responsibilities to Entities that have been established as responsibilities of BiH under Article III(5) of the BiH Constitution. The Constitutional Court stresses that unilateral actions of an Entity (withdrawal of a previously given consent, enactment of a law governing the same matter, etc.) cannot establish a responsibility of an Entity for the area in respect of which the responsibility of BiH has been established under Article III(5) of the BiH Constitution. Therefore, by enacting the disputed Law on the Non-Application of Laws and Ban on Operation of Extra-Constitutional Institutions of BiH, the RS National Assembly went beyond its powers. For the aforementioned reasons, the Constitutional Court concluded that the contested Entity law must be declared unconstitutional on formal grounds, as it normatively regulates a matter which, pursuant to the Constitution of Bosnia and Herzegovina, does not fall within the competence of that Entity. Consequently, there is no constitutional basis for the enactment of such a law. For the same reasons, the Constitutional Court further concluded that paragraphs 3, 5, and 6 of the contested Conclusions of the National Assembly of the Republika Srpska, adopted at the 17th special session held on 26 February 2025, as well as the Decision on Measures and Tasks Arising out of Unconstitutional Decisions and Actions of Extra-Constitutional Institutions of Bosnia and Herzegovina - the legal acts that served as the basis for initiating the adoption of the contested Law on Non-Application of Laws - are entirely contrary to Articles I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina.
In reviewing the constitutionality of the contested Law on Amendments to the Criminal Code of the Republika Srpska, which introduces a new criminal offense—“Non-Compliance with or Failure to Implement Decisions of the Institutions or Bodies of the Republika Srpska” - the Constitutional Court emphasized that prescribing criminal liability for violating the general values of society represents ultima ratio (the last resort) if those values cannot be protected in some other manner. The Constitutional Court accepted the position that compliance with decisions of institutions represents a general value of a democratic society, the realisation of which could, in some cases, require criminal justice compulsion. However, it was emphasized that the imposition of criminal liability for failure to implement those decisions must be consistent with the principle of the rule of law as enshrined in Article I(2) of the Constitution of Bosnia and Herzegovina, which requires that all Entity and Cantonal constitutions, laws, and other regulations must be in conformity with constitutional principles. The Constitutional Court pointed out that the contested law provision was formulated in such a broad manner that it implies criminal liability for failure to implement any decision of institutions or bodies of the Republika Srpska, regardless of which social values are at stake in the case in question. Consequently, that provision disregards the already existing methods of resolving non-implementation of decisions of the institutions or bodies of the Republika Srpska, which is contrary to the principle of legal certainty. Furthermore, the Court noted that the wording of the contested provision implies that decisions of the institutions and authorities of the Republika Srpska are binding, regardless of whether such decisions are final and enforceable, and ultimately, regardless of whether they are consistent with the constitution and lawful. This undermines the principle of the separation of powers by excluding both judicial and constitutional review of decisions adopted by the Republika Srpska. Finally, the contested provision introduces the supremacy of decisions of the Entity of Republika Srpska over the decisions of the State-level institutions and authorities, which, under the legal hierarchy, are superior to those of the Entities. It also attempts to regulate the conduct of individuals employed in the institutions of Bosnia and Herzegovina—an issue falling exclusively within the jurisdiction of the State. In view of the foregoing, the Constitutional Court concluded that the contested law provision has failed to meet the standard of legal quality and is incompatible with the principle of the rule of law under Article I(2) of the Constitution of Bosnia and Herzegovina.
By decision no. U-8/25, the Constitutional Court found that the Law on the High Judicial and Prosecutorial Council of the Republika Srpska (Official Gazette of the Republika Srpska, 19/25) and the Rulebook on the Procedure for Nomination and Selection of the First Members of the High Judicial and Prosecutorial Council of the Republika Srpska (Official Gazette of the Republika Srpska, 25/25), are not compatible with Articles I(2), III(3)(b) and VI(5) of the Constitution of Bosnia and Herzegovina. Therefore, the Constitutional Court suspended the contested law and rulebook ab initio and determined that they shall cease to be in effect from the date of their publication in the Official Gazette of the Republika Srpska, 19/25 of 5 March 2025 and 25/25 of 21 March 2025.
In its reasons for the decision, while referring to its own case law, the Constitutional Court pointed out that in a situation where a responsibility of the Entity is transferred to the State level by consent, it becomes part of the exclusive competence of the State and, thus, in accordance with the rule of law principle under Article I(2) of the Constitution on BiH, the reinstatement of these previously transferred responsibilities can only take place on the basis of decisions made in the Institutions of BiH (Parliamentary Assembly of BiH). Furthermore, it was pointed out that the contested Law on the High Judicial and Prosecutorial Council of Republika Srpska and the Rulebook on the Procedure for Nomination and Selection of the First Members of the High Judicial and Prosecutorial Council of the Republika Srpska regulate the same subject matter that has already been regulated by the State Law on High Judicial and Prosecutorial Council of Bosnia and Herzegovina. It was noted that the Entities concluded the Agreement on the Transfer of Certain Entity Responsibilities through the Establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. Consequently, through the Entities’ consent, the responsibility of Bosnia and Herzegovina in the field of judiciary was established pursuant to Article III(5)(a) of the Constitution of Bosnia and Herzegovina. At the same time, this entailed the competence of the Parliamentary Assembly of Bosnia and Herzegovina to enact, pursuant to Article IV(4)(a) of the Constitution of Bosnia and Herzegovina, the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, thereby establishing the High Judicial and Prosecutorial Council of Bosnia and Herzegovina as an independent and autonomous body tasked with ensuring an independent, impartial, and professional judiciary. However, the contested Law on High Judicial and Prosecutorial Council of the Republika Srpska and the Rulebook on the Procedure for Nomination and Selection of the First Members of the High Judicial and Prosecutorial Council of the Republika Srpska exclude the judiciary on the territory of the Entity of Republika Srpska from the purview of the HJPCBiH and place it under the purview of the newly established HJPCRS. In this way, de facto and de iure, an attempt has been made to usurp the responsibilities of Bosnia and Herzegovina in the field of judiciary in the territory of the Entity of Republika Srpska and to “return” the responsibilities in that field to the Entity of the Republika Srpska. The Constitutional Court has emphasized on several occasions that the procedure for “returning” responsibilities to the Entities, which were previously determined as responsibilities Bosnia and Herzegovina on the basis of Article III(5) of the Constitution of Bosnia and Herzegovina, is within the exclusive power of the Parliamentary Assembly. It was pointed out that unilateral actions by one of the Entities (withdrawing previously given consent, adopting laws regulating the same matter, etc.) cannot (re)establish the competence of the Entity for the area in which the responsibility of the State of Bosnia and Herzegovina was previously established based on Article III(5) of the Constitution of Bosnia and Herzegovina. Therefore, considering the undisputed content of the Law on the HJPC of Bosnia and Herzegovina, the content of the contested Law on the HJPC of the Republika Srpska and the Rulebook by which the responsibilities of institutions of Bosnia and Herzegovina are assumed, as well as its own established case law, the Constitutional Court concluded that there are no provisions in the Constitution of Bosnia and Herzegovina that could justify the constitutionality of the contested legal acts adopted by the National Assembly of Republika Srpska.
The Constitutional Court will resume its work in accordance with the agenda.
