Responding to the request of BiH Presidency member Zeljko Komsic, on the method of electing judges to the Constitutional Court of Bosnia and Herzegovina, the Venice Commission noted that ethnicity should never be used as a basis for electing judges of the Constitutional Court of Bosnia and Herzegovina.

The Commission also stressed that ethnic quotas or ethnic parity (2 Bosniaks + 2 Croats + 2 Serbs) cannot be used when electing judges to the Constitutional Court of Bosnia and Herzegovina, as this represents discrimination and undermines the integrity of the Constitutional Court and is in complete contradiction to European practices.

The Venice Commission also states that the professional experience of a candidate for a judge of the Constitutional Court of should be specified in such a way that the candidates should have 10 to 15 years of professional experience in the position of judge, professor of constitutional law or lawyer. (paragraph 34).

The Opinion recalls that on March 15, 2024, the then Chairman of the Presidency of Bosnia and Herzegovina, Zeljko Komsic, asked three questions to the Venice Commission.

Below are the conclusions that the Venice Commission made in response to Komsic’s request, which you can read in full, while the entire opinion can be read at THIS LINK:

The minimum criteria and qualifications for candidates for judges of the constitutional court vary considerably between Council of Europe member states. While a few countries require that part of the constitutional court’s members have previously served as judges, this is not commonplace. It is instead more common that countries require legal education and some professional experience in any legal area (thus including the judiciary) or list prior professional experience as a judge as one of several ways to become a constitutional justice. The requirement for prior experience, whether as a judge, scholar or other legal professional, ranges from five to 20 years, with the majority seeming to fall between 10 and 15 years. In no country is the number of successfully resolved cases a factor in the appointment of constitutional judges.

The Venice Commission would recommend to further refine or clarify the formulation “distinguished jurists” in Article VI of the Constitution by establishing a minimum level of professional legal experience in a range of, for example, 10 to 15 years and further specifying what legal professions (i.e., judges, law professors, lawyers etc.) are covered by this term.

In the view of the Venice Commission, the wording of the Constitution of Bosnia and Herzegovina leaves no doubt that the Constitutional Court was established as a truly federal body. Unlike constitutional provisions on other state institutions, the Constitution does not prescribe any ethnic criteria for the appointment of domestic judges to the Constitutional Court, nor does it prescribe that each constituent people has a certain number of seats on the Constitutional Court of Bosnia and Herzegovina. It solely prescribes that the Assembly of Republika Srpska appoints two judges, and the House of Representatives of the Federation appoints four judges to the Constitutional Court of Bosnia and Herzegovina. Selecting such judges on the basis of their affiliation to a constituent people on a certain territory is, in view of the Venice Commission, discriminatory.

The Venice Commission stresses that the composition of the Constitutional Court should reflect as much as possible the country’s diversity in terms of gender, ethnic, linguistic, religious or other criteria, as this pluralism would enhance the legitimacy of and public trust in the Constitutional Court. However, making membership specifically dependent on a person’s affiliation to an ethnic community would in fact lead in the first place to granting special rights for constituent peoples to the exclusion of the other citizens, including those belonging to the minorities of Bosnia and Herzegovina (as well as granting special rights to certain constituent people on parts of the territory of Bosnia and Herzegovina to the exclusion of both other constituent peoples and others). Further, individual constitutional court judges should not be considered to represent – and much less so, to act in the interests of – specific constituencies in the country or be perceived to do so. This would undermine the authority and impartiality of the Constitutional Court as an institution governed by the rule of law. In this context, the Venice Commission also recalls a previous Opinion on proposed voting rules for the Constitutional Court of Bosnia and Herzegovina, in which it spoke out against introducing the ethnic origin of a judge as an element of decision-making. Finally, aiming for “ethnical parity or the same ethnic representation” of judges from different ethnic communities would in fact introduce a system of ethnic quotas, which goes against the letter and spirit of the Constitution of Bosnia and Herzegovina as underlined above. The Venice Commission can therefore not support this. Ethnic criteria, alongside as gender, linguistic, religious or other criteria, could be part of the general considerations of each electing body with a view to achieving a pluralistic and balanced composition of the Constitutional Court. However, strict ethnic requirements or quotas are not consistent with the distinctive role and responsibility of the Constitutional Court as a federal institution reflecting and serving the rule of law.