Unblocking the Constitutional Court of Bosnia and Herzegovina: Three Strategies to Move Forward

The Constitutional Court of Bosnia and Herzegovina is facing a critical blockade due to an entity parliament’s refusal to appoint judges and efforts to undermine the Court’s legitimacy. Attempts by the Court to amend its rules and recommendations from the Venice Commission have not and cannot resolve the impasse. Three strategies are proposed to move forward: further internal reforms by the Court, actions by entity parliaments to fulfill their constitutional obligations, and pressure by the international community. Without significant political will (and perhaps intervention), the survival of the Court and the rule of law in Bosnia and Herzegovina remain at risk – writes Harun Išerić

The operation and decision-making processes of the Constitutional Court of Bosnia and Herzegovina have come under increasing pressure from domestic politicians, particularly those from the entity Republika Srpska (RS), over the past few years. These pressures include denying the Court’s legitimacy, ignoring its final and binding decisions within the territory of the RS, demanding the removal of international judges from the Court, and failing to fulfil the constitutional obligation to appoint judges from the RS.

Appointments to the nine-member Constitutional Court ensure representation from Bosnia and Herzegovina’s (BiH) three main constituent ethnic groups. The six domestic judges on the Constitutional Court are appointed by the two entity parliaments: four judges by the House of Representatives of the Federation (in practice two Bosniaks and two Croats), and two by the National Assembly of Republika Srpska (both Serbs). Three international judges are appointed by the European Court of Human Rights. There is an unconstitutional convention for electing a judge with a specific ethnic background to replace a retiring judge of the same ethnicity, which is considered by the Venice Commission as “flagrantly discriminatory.”

When two vacancies arose in 2022 due to the mandatory retirement of the Court’s president and vice-president, political elites seized the opportunity to strengthen their influence . . . 

When two vacancies arose in 2022 due to the mandatory retirement of the president and vice-president after reaching 70 years of age (Article VI(1)(c) of the Constitution), political elites seized the opportunity to strengthen their influence and cultivate further pressure by refusing to make necessary appointments. Another judge appointed by the National Assembly of RS retired in January 2024, at his own request, under pressure from the RS parliament and government (which was condemned by the Court and the Venice Commission). While the House of Representatives of the Federation (FBiH) took 26 months to elect a new judge, the RS has conditioned its two appointments on achieving long-standing goals, including excluding the three foreign judges from the Court’s composition and introducing ethnic voting and ethnic quotas within the Court.

With these two vacancies still unfilled, the Court’s Grand Chamber and Small Chamber are paralyzed, and all decisions are made by Plenary. So, while the Court is significantly burdened, it is still persevering in executing its role as a supporter of the Constitution, human rights and freedom, and resolving disputes between the state and subordinated federal units. But what is the way forward? What could be done by the Court, domestic actors, and the international community in order to bypass the blockade? There are three viable strategies that could be implemented: 1. by the Court itself; 2. by the entity parliament(s); and 3. by the international community represented by the Office of the High Representative of Bosnia and Herzegovina.

Too Little Too Late: The Court’s Rule Change

Months before the first retirement was to happen in 2022 — of President Mato Tadić — the three foreign judges proposed changes to the Rules of the Court (in the absence of a law on the Court, the Rules, together with the Constitution, regulate the operation of the Court).  The amendment, meant to address the potential political blockade against the Court, was to allow judges to continue past retirement age until the responsible authority elects their replacement. This proposal was viciously rejected by the domestic judges, with the argument that the Constitution contains a clear and precise norm prescribing that judges shall serve until age 70. These views of the domestic judges echoed excessive formalism, as a legacy of the surviving socialist legal culture. The three foreign judges themselves could not adopt the amendments, requiring a five-vote majority to pass.

The domestic judges changed their stance once the Venice Commission, following the request of the president of the Court, issued an opinion stating that, considering ‘the overarching constitutional principle of a functioning Constitutional Court’, and given the legal status of the Rules of the Court as equivalent to organic or constitutional law, the Court has the authority to modify the rules to extend a judge’s mandate until the vacancy is filled by the responsible authority. The Commission emphasized that the extension could end at any time, either by the election of new judges or even by the resignation of the judge whose mandate has expired.

The Court eventually adopted the amendments to its Rules allowing for the exceptional extension of a judge’s term in office. It used the Venice Commission’s opinion as a shield against various political attacks it was exposed to, especially from RS politicians, who condemned the changes as “unconstitutional” and “discriminatory” against other citizens subject to a mandatory retirement age. This amendment will be tested in November 2024, when the current president of the Court — Seada Palavrić — reaches the mandatory retirement age. Regarding the filling of that vacancy, the FBiH Parliament has yet to publish a public call for candidates, even though the Parliament was informed about the vacancy in January 2024 and the forthcoming procedure can take months. Given that a new judge will not be elected in time, and President Palavrić has previously expressed her intent to continue serving until a successor is appointed, the amendment should achieve its purpose.

Composition of the Court and the Problem of Vacancies

The Court’s president and three vice-presidents must be from different constituent peoples. In practice, this typically means that these positions are filled by one Serb (elected by the RS), one Croat and one Bosniak (both elected by the FBiH), and one foreign judge. So, since January 2024, the Court has been missing one vice-president: a judge elected from RS, a Serb. This creates problems both in forming the Court’s chambers and adopting decisions.

The Small Chamber of the Court, which decides interim measures and administrative issues, is composed of a president and two domestic vice-presidents. Due to the vacancies, it can no longer operate. Further, with two out of six domestic judges missing, the Grand Chamber of the Court — which decides 99.1 per cent of cases of the whole Court’s workload (data from 2010-2021) — is also incapacitated and cannot decide human rights cases or issues of admissibility. Thus, all cases are now decided by the Plenary of the Court, which is made up of all nine judges.

The Constitution requires an absolute majority for adopting the Rules of the Court and is silent on the majorities for the merits of cases. Currently, the Court’s Rules mandate an absolute majority for adopting decisions in Plenary and Grand Chambers (five votes) and unanimity in the Small Chamber. The Venice Commission recommended switching to a simple majority of those present and voting to make the Plenary more functional with fewer judges. Again, in spite of the Venice Commission’s recommendation, the Court was reluctant to adopt these changes in its voting rules.

The Court needs to change its Rules to allow, in exceptional cases, the election of a missing vice-president from among the sitting judges, regardless of their ethnicity.

The Court needs to change its Rules to allow, in exceptional cases, the election of a missing vice-president from among the sitting judges, regardless of their ethnicity. This change would make it possible to constitute a Small Chamber. However, the Court has been hesitant to take this step, although it previously adopted an amendment to the Rules which made it possible to hold Plenary sessions in the absence of judges elected by RS, which was considered a nuclear option.  

Judicial Appointments: Deadlocks and Blockades

The National Assembly of RS has made blocking the Court a policy, refusing to make any appointments until its political demands are met. The FBiH, on the other hand, is understood to have at least goodwill to fill the vacancies, especially important since the mandates of three domestic judges from the FBiH will end in November 2024, December 2025, and October 2026, respectively.

The most recent judicial appointment took over two years, largely due to deadlock within the Election and Appointment Committee, caused by the Croatian Democratic Party which was insisting on a single nomination for the vacancy to the House plenary. After the composition of the Committee was changed, a candidate was nominated and eventually confirmed. As the Venice Commission noted, anti-dead lock mechanisms should be introduced, such as directly forwarding a ranked list of candidates to the House of Representatives if the Committee fails to nominate candidate(s) within a set amount of time.

Although there is goodwill among pro-Bosnian political parties to make timely judicial appointments, it remains just a will without action. They remain indifferent to political blackmail and to the specific political appointments requested by Croatian Democratic Party, which has proclaimed itself as the only party with the right to decide on any appointment (including judicial) involving a person with Croatian ethnic background. The prolonged judicial vacancies undermine both the process as well as the Court, particularly concerning since the majority in the House of Representatives is made of politicians who declare themselves pro-Bosnian and thus should seek to support a cohesive and functional state.

As the RS continues to fail in its constitutional duty, it seems proper for the Office of the High Representative of Bosnia and Herzegovina (OHR) to act to ensure implementation of the Dayton Peace Accords, and to restore the functionality of the Court. The international community has several potential responses to address the RS blockade.

International Community: Need for Action Beyond Condemnation

While the international community has criticized the situation of the Court, other actions are possible (and perhaps necessary). Former FBiH President Marinko Čavara previously refused to nominate judges to fill vacancies on the Constitutional Court for years, hindering the Court’s Vital National Interest panel for his and his party’s political interests. His actions led to U.S. blacklisting and sanctions. So far, no similar measures have been taken by the USA or EU against RS officials for blocking appointments to the Court.

Secondly, one could consider an appointment of ad hoc judges, but the Venice Commission has made it clear that such appointments must come from the same body in charge of appointing the regular judges — the NA RS — to remain constitutional and legitimate. A key question is whether the OHR could temporarily step in to appoint ad hoc judges until the NA RS makes an appointment, or could even appoint permanent judges. The OHR has previously intervened in judicial appointments, when in 2002 it annulled the appointment of two judges by NA RS, claiming procedural violations. It has also, since its creation in 1995, made various judicial appointments, including foreign and domestic judges to the Court of BiH after the responsible authorities failed to appoint judges within the prescribed deadline of six months. In that case, a working group from the BiH Parliamentary Assembly conducted a proper procedure and ranked 19 qualified candidates, from which the OHR made seven appointments.

To break another political deadlock, in 2023, the OHR used his Bonn Powers to substitute the necessary signature of the second vice-president of the FBiH for the appointment of the Government of FBiH. In the same manner, the OHR could substitute the signature of the president of NA RS on the decision of the appointment of the Court’s (ad hoc) judges. The OHR’s authority is strengthened by laws that criminalize non-implementation of its decisions, punishable by a prison sentence of up to five years. Unfortunately, so far, OHR has refrained from doing more, but has issued a public statement condemning the unconstitutional behavior of RS as ‘without legal merit’, underlining that BiH entities have no authority to blackmail or control the Court.

Will the Court Survive?

The Court has been left to fend for itself, despite claims of support from political elites who praise the Court for its role in defending and protecting the state from disloyal federal units. The Court therefore needs to develop its own survival strategy, including to retain public trust in the institution. Key priorities include changing the Rules to adjust the majority required for decision-making in all chambers and improving logistical measures to ensure faster and smoother English translation of decisions, making them accessible for the foreign judges.

The OHR must articulate a clear plan to intervene if and when the appointment procedure is hijacked in entity parliaments.

The OHR must articulate a clear plan to intervene if and when the appointment procedure is hijacked in entity parliaments. Furthermore, if entity parliaments remain ignorant and persistent in blocking judicial appointments, the OHR should make ad hoc appointments, contingent on entity parliaments making appointments of regular judges.

The Court remains a vital state-level institution, the only one that cannot be blocked by entity or ethnic veto. The tactic of leaving vacancies open is the only means of a partial blockade, and in such a situation the international community has a greater role to play in defending the Court’s integrity and independence. So far, we can conclude that neither pro-Bosnian politicians nor the international community has been up to the task.

Harun Išerić is Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law. He is a member of the Constitutional Affairs Council of the BiH Presidency member Dr. Denis Bećirović, member of the national self-regulatory Press and Online Media Council Complaints Commission, and member of the Local Municipal Election Commission.

♦ ♦ ♦ 

Suggested citation: Harun Išerić, ‘Unblocking the Constitutional Court of Bosnia and Herzegovina: Three Strategies to Move Forward’, ConstitutionNet, International IDEA, 2 October 2024, https://constitutionnet.org/news/voices/unblocking-constitutional-court-bosnia-and-herzegovina

Click here for updates on constitutional developments in Bosnia and Herzegovina.