Crossing the Rubicon: What is Next for the Constitutional Court of Bosnia and Herzegovina?

Harun Išeric

Harun Išeric is Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law

When faced with the most serious threat to its functionality since its establishment by the Dayton Peace Accords (1995) – as entity legislatures have been defying the obligation to fill judicial vacancies and with three other judges about to reach their mandated retirement age – the Constitutional Court (the ‘Court’) of Bosnia and Herzegovina (‘BiH’) reached out to the Venice Commission (the ‘Commission’) for help in January 2024.

In response, the Commission published an opinion in March 2024 providing legal justification for the Court to extend the mandate of sitting judges beyond 70 years of age in the event that their replacement has not been chosen. This opinion was adopted by the Court, leading to changes in the Rules of Court, a sui generis legal act that it alone has the authority to modify. The opinion provided an international legal shield for the Court to defend its decision from domestic attacks aimed at undermining its authority and credibility. 

Once the Court decided to provide a legal foundation in its Rules of Court for the extension of the judges’ mandate, this arguably provided an opportunity for it to address other longstanding issues with those Rules, including in relation to the required qualifications for its judges, and the execution of its decisions. But the Court did not consider these broader issues. This blog post argues that this was an error, and the Court needs to revisit the Commission’s opinion and consider the potential of its recommendations to make it a stronger and more independent institution, better able to fulfill its constitutional duties.

On the Rules of the Court

The BiH Constitution grants the Court authority to adopt the Rules of Court, which regulate key issues of organization, powers and procedures. At the same time, it does not provide a basis for any legislation – whether organic or constitutional – to further regulate the Court’s functioning. In the words of the Court: “Such constitutional solution indicates the intent of the Constitution’s author to secure the independence of the Court and thereby to prevent any interference with the exercise of its responsibilities assigned to it by the Constitution of Bosnia and Herzegovina.”

Both the Court and the Commission have described the Rules of Court as a sui generis legal act, holding constitutional value. As noted by the Commission, matters concerning the functionality of the Court, typically regulated by constitutional and/or organic law in other jurisdictions, are governed by the Rules of Court in BiH. In that context, the constitutionality of the Rules of Court can’t be challenged before the Court, and earlier such attempts have been rejected.

Qualifications for a Constitutional Court Judge in BiH

The Constitution sets out two broad criteria for judicial candidates: they must be “distinguished jurists of high moral standing” (Article VI(1)(b)). However, as early as in 2012, the domestic Public Law Center, following expert discussion, concluded that there was an academic consensus on the need for concrete qualifications to objectivize these constitutional requirements, by prescribing specific criteria like professional accomplishments, minimum age, and public recognition. It argued for constitutional reform along these lines.

In May 2008, the High Representative (responsible for overseeing the implementation of the civilian aspects of the Dayton Peace Accords) also emphasized the need further to define judicial qualifications, arguing that appointing authorities should establish clearer criteria to ensure merit-based selection. However, with three different appointing authorities – the two entity legislatures and the president of the European Court of Human Rights – such an approach risked creating three different sets of criteria for the same judicial position. This fundamental flaw undermined the High Representative's suggestion, and the proposal was effectively abandoned. A similar issue arose in 2005, when the Parliament of the Federation of BiH, as an appointing body (and one of two entity legislatures), issued a call in relation to judicial vacancies, introducing additional qualifications to objectivize the constitutional requirement. The President of the Court warned the Parliament’s working group that such action could violate the constitutional procedure, and ultimately the call was invalidated.

The Registrar of the Court has argued that the Court could amend its Rules of Court to further clarify the meaning of the necessary constitutional qualifications for judges. In her view, such an action is feasible, since the Court has previously used its Rules to define the obligations and role of judges, including granting them immunity from criminal prosecution.

The European Commission, in a 2019 Opinion on BiH’s application for membership in the European Union (‘EU’), underscored the need to improve the eligibility criteria to strengthen both the professionalism and independence of the Court. This is considered one of the fundamental criteria for Bosnian progress on its EU integration path.

In March 2024, the Venice Commission was also asked by the Presidency of BiH to weigh in on the qualifications for judicial positions at the Court. In a June 2024 opinion, the Commission suggested the inclusion of minimum age requirements or/and requirements for a minimum number of years of professional experience (10 to 15 years). With regards to the means of clarifying the requirements, the Venice Commission took the view that additional qualifications could not be prescribed by the Rules of the Court, for two reasons: 1) rules of Court can’t regulate the phase of the preceding appointment procedure and 2) this would risk creating a form of co-opting, which is not envisioned by the Constitution of BiH. This would mean that judges themselves would decide who would join them on the bench.

However, if the judges of the Court are already responsible for decisions of this nature, such as the extension of the judicial mandate beyond the age of 70, determining when a sitting judge should be dismissed (i.e., deciding on who will no longer sit on the bench), as well as issues of incompatibility with a judicial position and immunity, it remains unclear why it would not be possible for the Court to clarify the qualifications for the judicial position in its Rules of Court. Additionally, the Court became involved in the judicial appointment process by requiring the appointing authority, through its Rules, to obtain a written opinion from the Court on each proposed candidate. This rule, in effect from July 2005 to November 2014, was not prescribed by the BiH Constitution, which does not assign such a role to the Court. Furthermore, there are several examples from other jurisdictions where judicial qualifications, initially set out in constitutional text, are later elaborated through specific legislation which has the same legal strength as Rules of the Court (see paragraphs 22 and 23 in the Opinion).

Execution of the Court’s Decisions

A majority of the decisions of the Court are executed in a timely manner and in accordance with the Court’s rulings. To ensure compliance, the state level legislator has made it a criminal offense to fail to apply, implement, enforce, or otherwise comply with the final and binding decision of the Court. Furthermore, obstruction of the application, implementation, or enforcement of such a decision of the Court is also criminalized under the Criminal Code of BiH (for the latest version of the relevant provision in the Criminal Code of BiH see here).

However, to date, there is no evidence that anyone has been prosecuted for this crime, while in the last 22 years the Court issued rulings in 133 cases related to failures to enforce its decisions (which were forwarded to the BiH Prosecutorial Office). The concept of criminal responsibility for the non-implementation of Court decisions remains, in effect, a nudum ius. The BiH Prosecutor’s Office has made it clear that in cases where the legislative or executive branches are ordered to amend general legal acts, the issue of criminal prosecution arises from the difficulty of individualizing responsibility.

In recent years, Republika Srpska (‘RS’), one of two Bosnian entities, has decided to defy the Court’s decisions on several controversial social issues, such as the Day of RS (on which the Court has delivered three decisions, the latest of which can be found here) and state property (on which Court has delivered eight decisions, the latest of which can be found here). In some cases, public authorities have only formally implemented the decisions, without adhering to their essence, despite the fact that the judgments of the Court are final and binding. Meanwhile, the High Representative has opted not to intervene, leaving the resolution of these issues to domestic politicians and state institutions (for the High Representative’s latest verbal intervention see here). Most recently, RS has shown a strong determination to halt executing the Court’s decisions. In June 2023, the National Assembly of RS adopted a Law on Non-Application of the Decisions of the Constitutional Court of BiH. Although the High Representative annulled this law, RS, including its prosecutors’ offices, continues to act as if the law is still in force (as seen in this criminal law case).

This should have led the Court to explore further methods for implementing its decisions, as the burden of enforcement ultimately rests with the Court. This issue has also been recognized in the European Commission’s 2019 opinion on BiH’s EU membership application: the opinion highlighted the need to ensure effective enforcement of the Court’s decisions.

It follows that one of the most appropriate solutions would be for the Court to introduce financial penalties for the national or subnational entities if their executive or legislative branches fail to implement the Court’s decisions. This approach could draw inspiration from the EU, where the Court of Justice of the EU has the authority to impose financial penalties for non-compliance (Article 260 of the Treaty on the Functioning of the EU). Furthermore, according to the Venice Commission, civil penalties could be imposed on individuals who fail to carry out the Court’s judgements.

The Perfect Moment for Action

The Court is currently operating in the most challenging time for BiH since 1995. Every crisis represents an opportunity, and this moment should be seized by the Court to take necessary action that will safeguard its strength and independence. While other branches of government are either unwilling or unable to protect the Court, it cannot afford to remain passive. The Court must actively preserve public trust and ensure the full implementation of its decisions, especially those of existential importance to the state, which is under threat by the secessionist movement in RS. This necessarily requires further amending its Rules and advancing financial penalties as a further instrument of compliance with its rulings.

Harun Išeric 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, member of the national self-regulatory Press and Online Media Council Complaints Commission, and member of the Local Municipal Election Commission.

Suggested citation: Harun Išeric, ‘Crossing the Rubicon: What is Next for the Constitutional Court of Bosnia and Herzegovina?’ IACL-AIDC Blog (1 April 2025) Crossing the Rubicon: What is Next for the Constitutional Court of Bosnia and Herzegovina? — IACL-IADC Blog