BiH Presidency member Zeljko Komsic addressed the 139th Plenary Session of the Venice Commission on Friday, in his capacity as the applicant for the Opinion of the Venice Commission regarding European practice concerning the election of judges to constitutional courts. The reasons for his address, in which he explained the elements of his request, refer to the imprecision of the provisions of the Constitution of Bosnia and Herzegovina concerning the minimum qualifications for the election of judges to Bosnia's Constitutional Court, requesting that the prevailing practice be pointed out in the Opinion of the Venice Commission in European countries during the election of judges in constitutional courts so that such a practice would also be used in BiH.

He pointed out that the Constitution of Bosnia and Herzegovina, as Annex IV of the Dayton Peace Agreement, was written in the terminology of Anglo-Saxon law, which opens up space for frequent arbitrary and unfounded interpretations of the constitution itself. Additionally, he specifically requested that the Venice Commission clearly state in its recommendations whether it is possible to use ethnicity when filling the Constitutional Court in such a way that it is done through a parity ethnically based election of judges. He was also suggested, during the presentation and discussion, that the Venice Commission, in its Opinion or recommendations and conclusion, express its position on whether the decision-making system in the Constitutional Court of Bosnia and Herzegovina can be ethnically and territorially (entity)-based.

As the first reason for his address, Komsic pointed out the “relatively imprecise provisions” of the Constitution which establish the minimum criteria for the selection of judges to the Constitutional Court which, he said, had been abused in previous cases to the extent that people were elected without any judicial experience.

“It must be stressed that there is a fragile democracy in Bosnia and Herzegovina which, due to the existence of ethnically based policies, is neither complete nor fully established, where in such cases the Constitutional Court of Bosnia and Herzegovina should be the final judicial instance which, in addition to legal issues, should protect democracy in Bosnia and Herzegovina”.

Komsic recalled that persons who had no judicial experience at all were elected as judges, and decisions were made that caused significant tensions and long-term political and legal problems in Bosnia and Herzegovina.

“These were mostly decisions concerning the electoral system in Bosnia and Herzegovina, in which the Constitutional Court made very strange decisions, which even contained arguments for ethnic divisions in the country, which reinforced discrimination. Let me stress that such a practice is unacceptable.

Additionally, there is no Supreme Court in Bosnia and Herzegovina as the last court instance in two-level proceedings, so the Constitutional Court of Bosnia and Herzegovina acted as the final court instance in some cases. For such a thing to be established, it is certainly necessary for the Constitutional Court of Bosnia and Herzegovina to elect judges who have judicial or long enough professional experience to be able to perform their work in such a court, which represents the last judicial instance. This certainly undermines the quality of the Constitutional Court of Bosnia and Herzegovina itself and ultimately results in insufficient legal security for the citizens of BiH”, Komsic said.

It is particularly worrisome, he continued, that the Constitutional Court took over the powers of the European Court of Human Rights, concerning the protection of human rights, in such a way that it visibly tried to create a new practice for the European Court with its decisions, instead of using the jurisprudence of the European Court of Human Rights in decision-making, which is its constitutional obligation.

“The reason for this is the insufficient quality, potential and knowledge of the elected judges, due to insufficiently precise criteria for the selection of judges of the Constitutional Court, which are established by the Constitution of Bosnia and Herzegovina”, BiH Presidency member concluded.

Another important issue, Komsic pointed out, relates to the ethnic system for electing judges.

“Of course, I'm aware that the Constitution of Bosnia and Herzegovina does not establish ethnic criteria for the election of judges to the Constitutional Court of Bosnia and Herzegovina, but on the other hand, the practice has been established that, during all elections, we have 2 ethnic Bosniaks, 2 ethnic Croats and 2 ethnic Serbs for 6 domestic judges. This is a practice that comes from ethnic politics and ethnically based parties, which is absolutely unacceptable. The way in which elections are conducted based on ethnic parity is an additional reason for undermining the quality of the Constitutional Court. On this occasion, I will remind you of the position of the Parliamentary Assembly of the Council of Europe from October 2002, in which it was unequivocally stated that within the framework of its obligations arising from membership in the Council of Europe, Bosnia and Herzegovina ‘must abandon the ethnic system of representation and switch to a civil system of representation.’ This is an obligation of my country and it must be fulfilled,” Komsic added.

Finally, Komšić underlined the third problem…

“This problem is reflected in the intention of domestic political actors to change the decision-making system of the Constitutional Court of Bosnia and Herzegovina in such a way that it is an ethnic and territorial (entity)-based decision-making. You will agree with me that such a thing is completely unacceptable. Therefore, we made a small amendment to the draft Opinion of the Venice Commission, which we think can be incorporated into paragraph 35 or paragraph 36 and which reads:

“Stemming from the fact that ethnic quotas or ethnic criteria for the election of judges of the Constitutional Court of Bosnia and Herzegovina represent an expression of discrimination, the Venice Commission also considers that the decision-making system of the Constitutional Court of Bosnia and Herzegovina cannot be applied to the ethnic decision-making system, as well as the territorial, i.e. entity decision-making system. The Constitutional Court of Bosnia and Herzegovina, as a judicial body with specific competencies that makes decisions related to all citizens of BiH, should make its decisions by a simple majority of the total number of judges of the Constitutional Court of Bosnia and Herzegovina. Thus the ethnic and territorial (entity) decision-making system would be unacceptable.”

“I believe that this amendment can be very significant and useful and, allow me to insist, that it be included in the final Opinion of the Venice Commission, per to my request of March 15, 2024,” Komsic concluded.