By Slavko Mitrović
The Constitutional Court of BiH is the only judicial institution established by the BiH Constitution. It consists of nine members: four are appointed by the Parliament of the Federation of BiH, and two by the National Assembly of Republika Srpska. In practice, these are typically two Bosniaks, two Serbs, and two Croats. Three foreign judges are appointed by the President of the European Court of Human Rights in consultation with the BiH Presidency, although the Presidency’s opinion is not binding.
This means that a single foreign individual appoints the largest number of judges to the Constitutional Court of BiH—judges who do not necessarily have any knowledge of BiH, its language, or its legal system. This is clear evidence of the limitation of BiH’s sovereignty and the sovereignty of its constituent peoples and entities. A foreign individual, even if they are the President of the European Court of Human Rights, appoints three judges to the Constitutional Court of BiH, granting them more authority than the country’s actual constituents—two entities and three peoples—who can appoint only two judges each. This setup defies logic, legal principles, and common sense.
A tool for unconstitutional revisions
From its inception, the Constitutional Court of BiH has functioned as a tool for unlawful and illegitimate constitutional revision. It has achieved this through distorted interpretations and by affirming laws imposed by high representatives. Instead of relying on explicit constitutional provisions (which often do not exist), the Court has justified its rulings by citing vague justifications such as “based on the established constitutional necessity” or “it can be expected,” as was the case with the imposed Petritsch Law on the Court of BiH.
Some key decisions were made by outvoting the four judges from the Serb and Croat communities with the votes of the three foreign judges and the two Bosniak judges. These rulings were often based on appeals submitted by Bosniak representatives, particularly SDA presidents while they were members of the BiH Presidency.
An international agreement
The General Framework Agreement for Peace in BiH, known as the Dayton Agreement, along with its 11 annexes, is an international treaty and part of international law. Annex 4, which serves as the BiH Constitution, establishes the Constitutional Court of BiH as one of only three institutions in BiH explicitly allowed to bear the country’s name (the other two being the Presidency and the Central Bank).
Article 6 of the BiH Constitution regulates the composition, procedures, and jurisdiction of the Constitutional Court. Article 6.1 mandates: “The Constitutional Court of Bosnia and Herzegovina shall have nine members.” This provision, known as the Rule of Nine Members, is a fundamental requirement for the Court’s existence and function. Article 6.2 states: “A majority of all members of the Court shall constitute a quorum.” However, this refers strictly to decision-making procedures, not the Court’s composition.
At various times, the Constitutional Court has functioned without all nine members, making decisions with only a partial bench. This raises the question: Can the Court legally exist and function if it lacks its full composition? Article 6.1 does not provide exceptions to the Rule of Nine Members, nor does it grant the Court the power to create such exceptions.
For example, Article 6.1(c) stipulates that judges serve until they reach the age of 70. Yet in 2024, the Court attempted to bypass this rule by amending its own regulations to extend the mandate of judge Seada Palavrić beyond the constitutional age limit.
Former BiH Constitutional Court President Mato Tadić stated that procedural rules can govern the Court’s work but cannot alter constitutional provisions. During his tenure in 2022, the Court rejected a proposal to extend judges’ mandates when replacements were not elected, ruling it unconstitutional.
Political manipulation
On June 19, 2023, the Constitutional Court amended its rules by removing Article 39, which previously required at least three judges from the Federation and one judge from Republika Srpska to be present for a plenary session. This effectively excluded the only remaining Serb judge, Zlatko Knežević, from participating in decisions. The goal was clear: to allow the Court to function without judges from Republika Srpska, making it a mere remnant of its intended form, with no legal authority.
Legal procedures
Annex 4 of the Dayton Agreement was signed by three parties: the Republic of Bosnia and Herzegovina, the Federation of BiH, and Republika Srpska. Only these three entities have the legal authority to amend the BiH Constitution, as stipulated by the Vienna Convention on the Law of Treaties (Article 39). Any amendment to the BiH Constitution must first be agreed upon by these three parties before being adopted by a two-thirds majority in the BiH Parliamentary Assembly, as required by Article 10.1 of the Constitution.
Since no legal procedure preceded the changes to the Constitutional Court’s rules—such as the deletion of Article 39 or the addition of Article 99(a)—these changes are legally null and void.
The necessity of full composition
Article 6.2 of the Constitution strictly refers to procedural matters. The Court only exists as a constitutional body if it has all nine members. If it lacks the full composition, it cannot exercise its constitutional jurisdiction. It may handle technical matters, but it cannot issue binding constitutional rulings.
If the Court operates with fewer than nine members, it fails in its fundamental role of upholding the Constitution. Only when the Court is fully composed can it issue final and binding decisions under Article 6.4 of the Constitution. If it lacks its full composition, then its rulings are neither final nor binding.
Republika Srpska’s response
The BiH Constitution states in Article 3.3(b): “The Entities and all their subdivisions shall fully comply with this Constitution, which shall take precedence over inconsistent provisions of laws of Bosnia and Herzegovina, as well as over the constitutions and laws of the Entities.”
Since the incomplete Constitutional Court is not functioning in accordance with the BiH Constitution, its decisions cannot be considered legally valid. Therefore, the National Assembly of Republika Srpska, fulfilling its constitutional obligation, passed a law rejecting the application of decisions made by the Court due to its unconstitutional rule changes and its long-standing failure to replace foreign judges with domestic ones.
Additionally, the National Assembly recognized that the Constitutional Court’s decisions, made without judges from Republika Srpska, lack legitimacy. Full stop.
Source: Glas Srpske
