Statement on human and political rights – Government of Republic of Srpska

The RS Government Supports Actions to Ensure that All BiH Citizens Enjoy the Rights Guaranteed by the European Convention on Human Rights and the Dayton Peace Accords

The RS Government supports amending provisions of the BiH Constitution on eligibility for election to the BiH Presidency and House of Peoples to bring the Constitution into conformity with the European Convention on Human Rights (“ECHR”) in light of the recent decision of the European Court of Human Rights in the Case of Sejdic and Finci v. BiH.
No less important is the need to ensure redress for the hundreds of citizens of BiH whose human rights have been violated by the High Representative. The EU, Council of Europe and other members of the international community must equally support remedying these violations immediately.

The High Representative has, by decree, removed nearly 200 BiH citizens from their public positions, usually banning them indefinitely from holding any public office or employment. The High Representative has also taken actions against citizens that deny other rights, such as blocking bank accounts and seizing travel documents indefinitely. The High Representative has given these individuals no notice or hearing, no administrative or judicial process, and no opportunity to appeal.
These decrees plainly violate the most basic human rights guaranteed by the ECHR and other human rights instruments set forth in the Dayton Peace Accords and BiH Constitution. These actions of the High Representative have been condemned by the Council of Europe’s Parliamentary Assembly, the Council of Venice, the Commissioner for Human Rights, and BiH’s Constitutional Court.
In 2004, the Council of Europe’s Parliamentary Assembly stated in Resolution 1384 that it “considers it irreconcilable with democratic principles that the High Representative should be able to take enforceable decisions without being accountable for them or obliged to justify their validity and without there being a legal recourse.”[1]
In its March 2005 opinion, the Venice Commission called for removal decisions of the High Representative to be transferred to “the proper national institutions” and “made subject to full judicial control.”[2] The Commission held that “[t]he continuation of such power being exercised by a non-elected political authority without any possibility of appeal and any input by an independent body is not acceptable.”[3] The Commission further explained:

The termination of the employment of a public official is a serious interference with the rights of the persons concerned. In order to meet democratic standards, it should follow a fair hearing, be based on serious grounds with sufficient proof and the possibility of a legal appeal. The sanction has to be proportionate to the alleged offence. In cases of dismissal of elected representatives, the rights of their voters are also concerned and particularly serious justification for such interference is required. . . .

The main concern is . . . that the High Representative does not act as an independent court and that there is no possibility of appeal. The High Representative is not an independent judge and he has no democratic legitimacy deriving from the people of [BiH]. He pursues a political agenda . . . . As a matter of principle, it seems unacceptable that decisions directly affecting the rights of individuals taken by a political body are not subject to a fair hearing or at least the minimum of due process and scrutiny by an independent court.[4]

Last year, the Commissioner for Human Rights of the Council of Europe wrote about the need for international organizations acting as quasi-governments to be held accountable for their actions, citing the Office of the High Representative as an example.[5]
In a 2006 decision, Milorad Bilbija et al, the BiH Constitutional Court held that the High Representative’s removal decrees violate human rights protected in the BiH Constitution, including rights set forth in the ECHR.[6]
In response to that decision, however, the High Representative issued an order purporting to overrule the Constitutional Court and going well beyond. Among other statements placing itself entirely above the law, the High Representative decreed that “any proceeding instituted before any court in [BiH], which challenges or takes any issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.”[7]
The Government sent letters to the EU President and the Council of Europe’s Commissioner for Human Rights in October 2009 urging the EU and Council of Europe to work to remedy this serious human rights issue. However, no action has yet been taken.

The Council of Europe, EU and other members of the international community must be equally concerned with and committed to remedying the High Representative’s violations of human rights guaranteed by the ECHR and other human rights instruments as they are with remedying provisions of the BiH Constitution on eligibility for election to the BiH Presidency and House of Peoples. Both issues must be addressed.

[1] Council of Europe Res. 1384 (2004), Assembly debate on 23 June 2004 (20^th Sitting) (see Doc. 10196, report of the Political Affairs Committee, rapporteur: Mr. Kirilov), text adopted by the Assembly on 23 June 2004 (20^th Sitting).

[2] European Commission For Democracy Through Law (Venice Commission), Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, adopted by the Venice Commission at its 62^nd plenary session, para. 97 (Venice, 11-12 March 2005).

[3] Id. at para. 98.

[4] European Commission For Democracy Through Law (Venice Commission), Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, adopted by the Venice Commission at its 62^nd plenary session, paras. 94-96 (Venice, 11-12 March 2005) (emphasis added).

[5] Viewpoints of the Council of Europe Commissioner for Human Rights, International Organizations acting as quasi-governments should be held accountable, 6 June 2009, at www.coe.int/t/commissioner/Viewpoints/ 090608_en.asp.

[6] See Milorad Bilbija i Dragan Kalinić, Decision on admissibility and merits, AP-953/05 (8 July 2006).

[7] Office of the High Representative, Order on the Implementation of the Decision of the Constitutional Court of Bosnia and Herzegovina in the Appeal of Milorad Bilbija et al, No. AP-953/05 (23 March 2007).