For better or worse, the Constitutional Court of Bosnia and Herzegovina has for a long time been recognized as one of the most important actors in the integration of post-conflict Bosnian society. The role of the Court in such complicated legal and political circumstances is complex, particularly when its decisions can, and certainly do, have significant impact on political processes in the country. Thus, its struggle to maintain the authority and keep the legitimacy of judicial review, though certainly not unique, is challenging.
That struggle is not helped by the way the judges are selected. The Constitution of B&H provides that the Constitutional Court will have 9 judges, of which 6 (4+2) are selected by the legislatures of the two entities in Bosnia and Herzegovina (regarding which a constitutional custom has developed that the 2 coming from Republika Srpska will always be Serbs, while 4 coming from Federation of Bosnia and Herzegovina will always be Bosniaks and Croats), and 3 are selected by the President of the European Court of Human Rights after the consultations with the Presidency. The latter 3 cannot be citizens of B&H or neighboring countries. The only criterion is that the judges should be distinguished jurists of high moral standing. Judges serve until age of 70, unless they resign or are removed for cause by consensus of the other judges.
Judges are selected by the entities in a very untransparent manner, but more significantly they are often very prominent politicians form the party that has a majority, at that moment, in the parliament of the respective entity. Looking at just the latest selections, one recognizes famous faces in Bosnian politics, two former vice-presidents of their respective parties and one long time member. Needless to say, the discarding of their former political identities, so important when faced with legitimacy problems, can prove challenging.
The latest controversy arose earlier this year after a non-governmental organization came into possession of a letter written by a Serb member of the Court, Krstan Simić, who was a vice-president of his political party prior to selection, written to his former party leader, currently a Prime minister of Republika Srpska, expressing his objection to the fact that his former “boss” (he refers to him as such in the letter) does not “use his [Simić’s] experience and possibilities“ more often. He also explains that it is proving impossible to lobby the foreign judges, while the local judges are already influenced. He also uses the opportunity to council the Prime minister on certain selections in the administration (nepotism in action). After this correspondence was revealed in the press, Judge Simić wrote several interviews and organized a press conference stating that he has evidence of hidden criminality in the Constitutional Court.
After the relevant procedure, in which the judge had a chance to appear before the Court at its extraordinary session and to send his written response to the Recommendation for his dismissal, the Court unanimously adopted, on 8 May 2010, a Decision dismissing Judge Simić. The grounds were that he had intentionally damaged the image and the dignity of the Court, as well as the image and the dignity of the judge. After reiterating the principles of judicial independence and impartiality as foreseen in the European Convention on Human Rights, the Court stated that the letter not only indicates that Simić had not broken his ties with his former political party, but was rather initiating such contacts himself. For the Constitutional Court it was irrelevant that the letter was of private and not public nature, and that the Prime Minister might indeed be a personal friend of the judge. With regards to his subsequent public appearances, Judge Simić invoked his freedom of expression, but the Constitutional Court indicated that such freedom was not absolute, particularly citing paragraph 2 of the Article 10 of ECHR providing that the freedom may be restricted with the aim of “maintaining the authority and impartiality of the judiciary.” The Court further stated that judge Simić did not respect the presumption of innocence when iterating his allegations against the Constitutional Court, and should have turned to the relevant public prosecutor (which he never did) instead of the media, if he indeed had any evidence of his allegations.
Although I have certain reservations as to the Decision, I have personally been surprised at how effectively it resolved this issue. The Constitutional Court was certainly cognizant of the problems it has faced, for example related to the law enacted by the High Representative for Bosnia and Herzegovina, and by the constant calls for its abolishment by the political establishment of Republika Srpska (for reasons of different nature than one analyzed here). It remains to be seen if this will have any longer term consequences for the Court, although it is worth mentioning that Republika Srpska had not yet selected Simić’s replacement, more than 2 months after his dismissal, and Simić had stated that he would appeal the decision at the European Court of Human Rights.
-- Nedim Kulenović, Faculty of Law, University of Sarajevo
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