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BiH Constitutional Court postpones the decision on Schmidt's amendments to Election Law

FENA Saopćenje

SARAJEVO, December 2 (FENA) - At the plenary session, held on December 1 and 2, the Constitutional Court of Bosnia and Herzegovina dismissed the request for the adoption of interim measure and postponed the decision on the merits in case U 27/22, the request for the review of the constitutionality of the amendments of the FBiH Constitution and the Election Law imposed by the High Representative in BiH on the night of the election, on October 2.

“In this case, the applicants, namely Mr. Željko Komišić, Member of the Presidency of Bosnia and Herzegovina and Mr. Šefik Džaferović, Chairman of the Presidency of Bosnia and Herzegovina at the time the request was filed, requested the review of the constitutionality of the decision of the High Representative for Bosnia and Herzegovina, of 2 October 2022. At this session, the Constitutional Court considered and decided exclusively on the applicant’s requests for an interim measure,” it was published on the official website of the Constitutional Court of BiH.

As further stated, the Constitutional Court decided to dismiss the requests for an interim measure. 

In the opinion of the Constitutional Court, the applicants have neither clearly stated beyond the abstract level, what kinds of irreparable damages could occur if the challenged acts were to remain in force pending the resolution of the dispute, nor provided any evidence on the justification of their request. 

“Just as the applicants surmise that allowing the challenged acts to remain in force pending the resolution of these requests could entail negative implications for rule of law, one could also argue in the other direction that complying with the applicants’ requests for interim measures could entail negative implications for the rule of law,” the Constitutional Court of BiH stated. 

The Court finds that at this stage, these arguments are only speculative. However, pursuant to Article 64(1) of its Rules, the Constitutional Court may, of its motion or at the request of an applicant or appellant, adopt any interim measure it deems necessary in the interest of the parties or the proper conduct of the proceedings before the Constitutional Court, notably if they create irreparable harm.

The Court is aware of the risk that the implementation of the election results based on the contested decision of the High Representative may lead to a situation where the elections or appointments will have to be reconsidered if the Constitutional Court concludes that the decision of the High Representative is incompatible with the Constitution. 

However, given the Constitutional Court, this does not cause irreparable harm, as it is remediable.

In the case, U 17/22, the Constitutional Court, in deciding the request of Mr. Šefik Džaferović, at the time of submission of the request the Chairman of the BiH Presidency, for the review of constitutionality of the Law on Pharmaceuticals and Medical Devices of the Republika Srpska and the Law on Amendments to the Law on the Republic Administration, established that the mentioned laws are not in conformity with Articles I(2) and III(3)(b) of the Constitution of Bosnia and Herzegovina, and therefore repealed them. 

In view of the Constitutional Court, the Constitution of BiH does not contain the provisions, based on which it would be possible to conclude that the challenged laws, which were passed by the National Assembly, are constitutional.

According to the principle of the rule of law under Article I(2) of the Constitution of Bosnia and Herzegovina, the Entities shall comply with the laws at the level of Bosnia and Herzegovina, while under Article III(3)(b) of the Constitution of Bosnia and Herzegovina, the Entities shall comply fully with the decisions of the institutions of Bosnia and Herzegovina.

In the case AP 75/21, the Constitutional Court concluded that the appellant's right to property was violated. The violation was found as the appellant's request was dismissed for payment of legal default interest on the amount of money that had been taken from the appellant and which the court had kept for a period of 13 years. The money had been retained although the competent Prosecutor’s Office informed it that the said money was not to be used as evidence in the criminal proceeding against the appellant.

All decisions adopted at today's plenary session will be delivered to the applicants/appellants within one month and published as soon as possible on the website of the Constitutional Court of Bosnia and Herzegovina.

(FENA) A. B.

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