This press release is the last time that the President of the Constitutional Court of BiH will answer to the queries made by Mr. Zoran Krešić. At the same time, the Press Council and the online media in BiH and other relevant bodies responsible for the conduct of journalists are asked to protect the Constitutional Court of BiH and its President from the pressure exerted by Mr. Krešić.

For those not up to date, we reiterate that on 19 May 2025, the President of the Constitutional Court of BiH issued a press  release, essentially refuting untruths on two decisions of the Constitutional Court (3/17 and 23/14) that have been misused for political purposes in the past month and a half.

A reaction of Mr. Krešić followed in the form of a series of questions. Respecting the right of access to information, the Constitutional Court President answered the questions yesterday. Due to the ultimatum given by Mr. Krešić that he needed the answers no later than 14:00 hours on 20 May, the President submitted the questions and answers to all the media, hoping that that would put an end to this issue.

However, Mr. Krešić sent a new e-mail yesterday, reading as follows:

“Dear President Seada Palavrić,

First of all, thank you for your prompt reply and its publication as well as transparent procedure. I must say that the efficiency and transparency that you have demonstrated is exceedingly rare among the presidents of other courts.

In that connection, I kindly ask that you answer the following questions:

1.    On what grounds do you, as President of the Constitutional Court of BiH, interpret the constitutional case law through a public release, thereby taking a legal position on behalf of the Court as a whole with regard to the proposal of the HDZ BiH on amendments to the Election Law in parliamentary procedure without the positions of the other judges?

2.    How do you justify the use official communication channels of the Constitutional Court for a reaction that contains a legal assessment and political discreditation of views arising out of publicly available decisions and reasons of the Court?

3.    In the light of the role of the Constitutional Court as a neutral and independent arbiter, do you consider it to be appropriate that the Court President, via a press release, creates an impression that the Court is reacting to political interpretations instead of leaving it to legal analyses and institutional mechanisms?

4.    For example, have you ever responded to the claims by Mr. Željko Komšić, Member of Presidency from amongst the Croats, and other politicians that Decision U-23/14 (Ljubić case) was implemented considering that it is stated in the 2024 Report of the Constitutional Court that the Ljubić decision has not been implemented? Do you have information whether the Decision of the Constitutional Court of BiH in case no. U-23/14 has been implemented?

5.    What are the reasons for which the Constitutional Court of BiH found in U-3/17 that the vital interest of the Bosniak people was not violated. In particular, I kindly ask you to answer how in the same decision the Constitutional Court of BiH reasoned the argument by the Bosniak delegates to the House of Peoples of the Parliamentary Assembly of BiH that the proposal of the Election Law by delegate of the HDZ was contrary to the decisions of the European Court of Human Rights in Sejdić–Finci?

6.    What is your comment on paragraph 39 of the decision U-3/17, particularly since you gave a dissenting opinion in that decision, noting that the proposal of the law currently in procedure before the Parliament of BiH is identical? The relevant paragraph reads: “Furthermore, the Proposal for the Law is based on the same principles provided for in the Constitution of BiH and Election Law as the current solution, according to which one Bosniak and one Croat from the territory of the Federation are elected to the Presidency of BiH. Only the procedure for their election is regulated differently by the proposed solution, which should ensure, as stated in the Reasons for the Proposal for the Law, the general principle of democracy, namely that one people does not elect the representatives of the other one, i.e. that each constituent people elect by itself its own representatives of the legislature”.

7.    I apologise for a personal question, but I need to ask it anyway: how is it possible that you still perform the role of Judge of the Constitutional Court of Bosnia and Herzegovina considering that the Constitution of Bosnia and Herzegovina clearly provides that a judge cannot serve after reaching the age of 70? Are you in violation of the Constitution of BiH?

Considering that you published my yesterday's request and your answers, I kindly ask that you do it this time as well. If not, please be advised that I will at least share my questions with all the media in Bosnia and Herzegovina.

Respectfully,
Zoran Krešić / Večernji list
www.vecernji.ba“

On this occasion, in the light of provisions of Article 2(4) of the Rulebook on Access to Information and Re-Use of Documents of the Constitutional Court of BiH, according to which the provisions of this rulebook do not apply to requests for giving opinions, explanations or directions related to exercise of a right or discharge of an obligation, requests for preparing an analysis or interpretation of a regulation, or creation of new information, for the purpose of not depriving Mr. Krešić of answers to the questions that he put and to stop the pressure on the Constitutional Court or the punishment of the Constitutional Court President over a press release that Mr. Krešić obviously did not like, the President of the Constitutional Court gives the following answers:

1.   It is true that a Constitutional Court President is not authorised to give legal views on behalf of the Court as a whole outside the formal decision-making procedure prescribed by the Rules of the Constitutional Court of Bosnia and Herzegovina. However, within the scope of its powers, the President has a right – as well as an institutional duty – to communicate with the public to point to existing views of the Court, solely on the grounds of valid and publicly available decisions. In that regard, none of the President's press releases contain new legal positions or prejudge future decisions. On the contrary, the sole purpose of the press releases was to explain the content of the previously adopted decisions to the public with a view to rule of law and a proper understanding of the case law. In this connection, it was also necessary to point to frequent misinterpretation of the jurisdiction of the Constitutional Court, particularly the differences when  applying Article IV(3)(f) compared to Article VI(3)(a) of the Constitution of Bosnia and Herzegovina, as well as specific aspects of decision-making in different procedures. Such clarifications were necessary to prevent further legal and institutional confusion.

2.  The official communication channels of the Court are intended for publishing decisions, press releases, and information that contribute to transparency and a proper understanding of the court's case-law. The press releases in question did not contain any political assessments nor were they aimed at discrediting anyone’s views or proposals for amending the law. Their sole purpose was to highlight the Court's existing positions in order to prevent arbitrary or selective interpretations. All claims in the press release are supported by quotes from the Court's decisions that have been published and can be verified on the official website of the Constitutional Court, which is why the press release cannot be understood in the manner implied by the question posed.

3.  The Constitutional Court remains entirely neutral and does not comment on political views. However, when public statements – including those of a political nature – directly and incorrectly reference the decisions of the Constitutional Court, the Court has a responsibility to ensure accurate information about the content of those decisions. Such clarifications do not constitute political activity, nor can or should they be understood as “commenting on political views”, but solely as a contribution to the proper understanding and protection of the authority of the Court and the rule of law.

4.  Within its institutional mechanisms, including annual and semi-annual reports, the Constitutional Court regularly reviews the status of the enforcement of its decisions. The 2024 Report on the Enforcement of Decisions of the Constitutional Court of Bosnia and Herzegovina clearly indicates that the decision in case U-23/14 has not been implemented. This fact is not a matter of opinion or interpretation, but part of the Court’s official record. In the past, the Constitutional Court of BiH has, in response to media inquiries, repeatedly provided the same answer for the same purpose, to contribute to the proper understanding of the Court’s positions regarding the implementation or enforcement of Decision no.U-23/14 (the so-called “Ljubić case”). It has been clearly stated that this case is still considered as not enforced. It was also noted that the issues addressed in this decision are highly complex. Therefore, the Constitutional Court has decided that it will, at a later stage (bearing in mind the current lack of staff and the expectation that the missing judges will be appointed to the Court within a reasonable time frame, thoroughly examine the implications of the decisions imposed by the High Representative for Bosnia and Herzegovina (amendments to the Constitution of the Federation of BiH and the Law to Amend the Election Law of BiH), as well as the implications of Decision no. U-27/22 of the Constitutional Court, which ruled on the constitutionality of these acts, on the status of implementation of Decision U-23/14 (the Ljubić judgment). However, as the competent Entity authorities have not yet appointed the missing judges, the Constitutional Court, together with its legal experts, has begun analysing the implications of the High Representative’s decisions on the implementation of Constitutional Court Decision no. U-23/14, and will take an official position on the matter.

5.   In the Decision on Admissibility and Merits, no. U-3/17 of 6 July 2017 (available at www.ustavnisud.ba), paras. 27 to 55, the Constitutional Court stated the reasons why it concluded that the claims made by the appellants that the Proposed Law is destructive to the vital interest of the Bosniak people are unfounded. Furthermore, the decision contains a response to the arguments that the proposed law is contrary to the judgments of the European Court of Human Rights in the Sejdić–Finci case. Instead of specifically citing those conclusions, we refer you to those positions. It is important to emphasize that the Court did not engage in a substantive assessment of the constitutionality of the proposed law under Article VI(3)(a) of the Constitution of Bosnia and Herzegovina, nor could it have, given that it was deciding within the scope of its special jurisdiction under Article IV(3)(f) of the Constitution of Bosnia and Herzegovina. Only in the event that the law is adopted could the Constitutional Court potentially assess its constitutionality upon request pursuant to Article VI(3)(a). These two competencies are different in nature and must not be equated. It was precisely these circumstances that needed to be clarified to the public, as they led to inaccurate interpretations of the Constitutional Court’s decisions.

6.   The claim that I issued a dissenting opinion in case no. U-3/17 is incorrect, as is clearly evident from the text of the decision, which is publicly available. Regarding the question related to paragraph 39 of the decision U-3/17, it is important to emphasize that this part of the decision must be interpreted as a whole and in the context of the specific request that was the subject of deliberation before the Constitutional Court of Bosnia and Herzegovina. Therefore, the  positions outlined in the referenced paragraph of the Decision no.U-3/17 cannot be interpreted in isolation, as they constitute the reasoning behind the court's assessment, which is strictly limited to the issue of the vital interest of the Bosniak people, as presented in the request. Only if the proposed law were adopted could its constitutionality be challenged before the Court in the regular procedure, at which point the Constitutional Court would apply a different legal framework and criteria for decision-making. In this context, the position under paragraph 39 – which states that the proposal is based on the same principles as existing legislative solutions – does not mean that the Court a priori confirms or denies its constitutionality or conformity with international standards, including judgments of the European Court of Human Rights. It simply indicates that such a proposal does not result in a violation of the vital interest of the Bosniak people, as concluded in paragraph 41 of that decision.

7.   The issue of extending the mandate of the judges of the Constitutional Court was discussed when amending the Rules of the Constitutional Court, and in this regard, the opinion of the Venice Commission was requested, Opinion no.1176/2024 of 18 March  2024, and it is publicly available (https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2024)002-bos). The rules have been aligned with the recommendations from that opinion outlined in paragraphs 22-27 of the opinion, to which we hereby refer you. In this regard, we highlight the position of the Venice Commission from paragraph 25: “In this context, the Venice Commission also considers that the Constitution provides that judges serve until the age of 70 and expects the Court to continue functioning by having these judges immediately replaced by new judges. In a situation like the present one, where the basic functioning of a crucial constitutional body is at stake, the question can be raised which of these two principles is of greater importance. Too strict an interpretation of the clause judges (…) shall serve until age 70 would lead to the strange conclusion that the drafters of the Constitution would prefer a complete paralysis of an essential constitutional organ to temporary prolongation of the term in office of legitimately appointed judges. Given that this prolongation can at any point be cut short by the legislatures of the entities themselves, simply by selecting new judges, as they are constitutionally obliged, the Venice Commission considers that a literal interpretation must yield to the overarching constitutional principle of a functioning Constitutional Court, safeguarding the fundamental right of access to a court”.

The decision to amend the Rules was published in the Official Gazette of BiH, 41/24 and is also published and available on the website of the Constitutional Court in the "Basic Acts" / "Rules" section.

Seada Palavrić
President
Constitutional Court of Bosnia and Herzegovina