A new application from Republika Srpska will soon reach the European Court of Human Rights in Strasbourg, challenging the actions of Christian Schmidt, who claims the position of high representative in Bosnia and Herzegovina. Individuals who brought similar complaints to Strasbourg nearly twenty years ago believe it is time for the judges to finally take the correct position.
The Strasbourg Court receives dozens of submissions annually from Bosnia and Herzegovina, in which individuals claim their human rights have been violated. The legal team of President Milorad Dodik confirmed that they will continue their legal battle in this way, following the latest rulings of BiH’s judicial institutions in the case against him, which stems from his alleged noncompliance with Schmidt’s decisions and the criminal code amendments imposed by Schmidt himself.
This course of action was mentioned even during Dodik’s trial before the Court of BiH. At the time, legal experts recalled an older case that had already reached Strasbourg almost two decades earlier.
The European Court of Human Rights (ECHR) determines whether the obligations set out in the European Convention on Human Rights are respected. Bosnia and Herzegovina ratified the Convention in 2002, enabling any individual who believes their rights have been violated to file an application directly with the Court.
Since his arrival, Schmidt — whom the leadership of Republika Srpska maintains is not a legitimate high representative — has continued the same practice as his predecessors by imposing new rules, including the criminal prosecution of Dodik.
However, the Court dismissed a similar complaint in 2007, in the case Berić and Others v. Bosnia and Herzegovina. That case involved 26 officials, mostly from the Serb Democratic Party (SDS), who had been removed from office by High Representative Paddy Ashdown in 2004 on the grounds that they violated the Dayton Agreement and obstructed cooperation with The Hague Tribunal.
In that landmark case, the ECHR judges ruled that they were not competent to decide on matters falling within the jurisdiction of the United Nations, under which the office of the high representative operates.
Dušan Berić, the lead applicant in that case, recalls that the judges in Strasbourg declared themselves incompetent to intervene:
“In cases like these, it always ends with no one being held accountable, while those punished remain punished. They declared themselves not competent,” Berić told Glas.
He believes that if the ECHR had taken a different stance and issued a fairer ruling at the time, the legal and political situation in Bosnia and Herzegovina would look very different today.
“My personal decision stated: ‘Dušan Berić, member of the SDS Main Board, is prohibited from working in any state institutions because his actions and omissions created an unfavorable environment for the arrest of war crimes suspects.’ The high representative made that decision, and Strasbourg refused to get involved,” Berić said, adding that he expects the same outcome in Dodik’s case.
According to him, since the high representative is effectively an instrument of the United Nations, the European Court has no jurisdiction in such matters — although the legitimacy of Schmidt’s mandate is a separate question.
Dodik’s lawyer, Goran Bubić, also cited the Berić case after the BiH Constitutional Court rejected their appeal seeking to annul the BiH Court’s verdict against Dodik.
“The Court rejected arguments clearly showing that Article 203a of the BiH Criminal Code was not adopted constitutionally, as it was not passed by the Parliamentary Assembly of BiH but imposed by an illegitimate high representative never confirmed by the UN Security Council. Instead of defending the BiH Constitution, the Constitutional Court supported a self-proclaimed foreigner — contrary to the established practice of appointing high representatives,” the defense stated, referring to the Berić and Others v. Bosnia and Herzegovina judgment (Decision No. 36357 and others, October 26, 2007).
Legal experts argue that this distinction — the absence of a UN Security Council resolution confirming Schmidt’s mandate — could represent a precedent in Dodik’s favor before the Strasbourg Court.
The issue was also debated in New York late last month, during a UN Security Council session initiated by Russia, where both the Russian and Chinese representatives declared Schmidt not legally appointed. Dodik’s defense sees this as an opportunity for a shift in the Court’s future position.
If the judges were to find that Schmidt’s actions violated human rights, Bosnia and Herzegovina could be obliged to amend its Criminal Code and remove the disputed provision. However, as legal experts note, this would not automatically overturn Dodik’s verdict for “noncompliance with the high representative’s decisions.”
Procedural deadlines
From the date of the final ruling of the country’s highest judicial body — in this case, the Constitutional Court of BiH — a party has four months to submit an application to the European Court of Human Rights. If this deadline passes, the Court will not accept the complaint.
Although the ECHR cannot annul domestic judgments or laws, its rulings have in several cases led to legal and institutional reforms in member states — and the outcome of the Dodik v. Bosnia and Herzegovina case could set an important new precedent.
Source: Glas Srpske
