Original article (in Bosnian) was published on 14/07/2023; Author: Mladen Lakić
An article published by the agency Srna claims that Christian Schmidt is misrepresenting himself and that the Office of the High Representative (OHR) does not respect the decisions of the Constitutional Court of Bosnia and Herzegovina. These are incorrect statements.
On May 30, 2023, the news agency Srna published an article equipped with the following title:
WOULD OHR CRIMINALLY PROSECUTE THOSE WHO DO NOT RESPECT THEIR DECISIONS?
The article states that the agency has information that the OHR is preparing amendments to the Criminal Code of Bosnia and Herzegovina, according to which non-compliance and non-implementation of the high representative’s decisions will be a criminal offence. Christian Schmidt, the High Representative of the international community in BiH, was described in the article as “a German citizen who falsely presents himself as a high representative” and it is also stated that “BiH does not have a high representative elected in accordance with the procedure provided by the Dayton Agreement”.
Given the fact that BiH does not have a high representative elected in accordance with the procedure provided for in the Dayton Agreement, the question arises as to who and how should respect the decisions of the OHR – when the same OHR does not respect the Constitutional Court of BiH, the Dayton Agreement, or the procedures.
German citizen Christian Schmidt falsely presents himself as a high representative, and this is a known fact both to himself and to the institution in which he illegally sits – the OHR, as well as to all politicians and citizens in Bosnia and Herzegovina.
The same article states that the Constitutional Court of Bosnia and Herzegovina emphasized in its decision from 2006 that “the high representative is proposed by the Steering Committee of the Peace Implementation Council, and the appointment is confirmed by the United Nations Security Council”.
As a reminder, and to inform the OHR, although by now they should know the Constitution of BiH and the Dayton Agreement by heart, given that they have been sitting on the table in Sarajevo for decades, that the Constitutional Court emphasized in its decision from 2006: “The Dayton Peace Agreement, which was signed in 1995, the high representative on behalf of the international community is tasked with overseeing the implementation of the civilian aspects of the Peace Agreement in BiH. The high representative is also tasked with coordinating the activities of international and civil organizations and agencies operating in the country”.
And the most important thing for the gentlemen in the OHR, the same decision of the Constitutional Court of BiH, stated that: “The high representative is proposed by the Steering Committee of the Peace Implementation Council /PIK/, and the appointment is confirmed by the United Nations Security Council, which also approved the Dayton Peace Agreement. ..”(…) A clear question arises: How does the OHR expect domestic actors to respect the decisions of the OHR, when that same institution does not respect the decisions of the Constitutional Court of Bosnia and Herzegovina, the Dayton Agreement, given the fact that the OHR has a fake so-called high representative, German citizen Christian Schmidt.
The article was shared by 20 web portals on the same day.
What are the facts about the election and appointment of the high representative?
On July 1, 2023, the High Representative in Bosnia and Herzegovina, Christian Schmidt, issued the decision by which the Law on Amendments and Supplements to the Criminal Code of Bosnia and Herzegovina is adopted. With these amendments, non-implementation of the decisions of the high representative and the Constitutional Court of BiH became a criminal offence punishable by imprisonment.
Since Schmidt assumed the post of high representative of the international community in BiH in August 2021, numerous political officials have started calling him illegitimate. As an explanation, they stated that Schmidt’s appointment was not confirmed by the UN Security Council.
Our partner web portal Istinomjer has on several occasions dealt with the claims of officials challenging Schmidt’s legality and legitimacy in the position of high representative (1, 2, 3, 4). In the analysis published on June 7, 2021, it is stated that it is true that Schmidt’s appointment was not confirmed by the UN Security Council, but it was explained that this does not make Schmidt illegitimate or “illegally elected”, as this is not a condition for the appointment of a high representative of the international community in Bosnia and Herzegovina.
Raskrinkavanje also wrote about how numerous media called Christian Schmidt an “illegally elected”, “illegitimate” or “fake” high representative in Bosnia and Herzegovina (1 , 2). As stated in the analysis published on January 25, 2022, it happened several times that the UN Security Council expressed its opinion on the selection of the high representative, but it also occurred that the Council did not confirm the appointment of the high representative. The aforementioned analysis explains:
However, the case from 2005, when Christian Schwarz-Schilling was chosen as the high representative, shows that the absence of confirmation by the UN Security Council is not a precedent. Namely, at that time, outgoing High Representative Paddy Ashdown informed the UN Secretary-General in writing that Schwarz-Schilling would hold this position from January 31, 2006, and that he was informed “that this information should be forwarded to the Security Council for consideration and possible achievement agreement”.
Moreover, there is no defined procedure for the election of the high representative, and even the first executor of this function, Carl Bildt, was not appointed by the UN Security Council.
(…)
So, although there were cases in the past when the Security Council also expressed their opinion on the selection of a high representative, there is no legal basis for this practice, and therefore the validity of the statements of high officials about the lack of legitimacy of Christian Schmidt is disputed.
The claim from the analyzed article that “BiH does not have a high representative elected in accordance with the procedure provided for in the Dayton Agreement” is not entirely precise, but it can be concluded that it refers to the appointment to the UN Council. The framework agreement for peace in BiH in Annex 10, Article I, which is entitled “High Representative”, contains the provision that “he/she will be appointed in accordance with the relevant resolutions of the United Nations Security Council” (p. 65).
Thus, claims that Bosnia and Herzegovina does not have a high representative elected in accordance with the procedure provided for in the Dayton Agreement, and that Schmidt is “unappointed” and a “fake so-called high representative” are manipulative. It is true that Schmidt’s appointment was not confirmed by the UN Security Council, but this is neither mandatory nor defined as necessary.
What is the decision of the Constitutional Court of Bosnia and Herzegovina about?
In Srna’s article, it is stated that the Constitutional Court of Bosnia and Herzegovina emphasized in its decision from 2006 that “the high representative is proposed by the Steering Committee of the Peace Implementation Council, and the appointment is confirmed by the United Nations Security Council”. It is not specified which decision it is.
A search of case law on the website of the Constitutional Court of Bosnia and Herzegovina for the year 2006 offers 1,238 results. Among these results, the only Court decision that contains allegations about the high representative from Srna’s article is the decision in case AP-953/05 from July 8, 2006. With this decision, the appeal of Milorad Bilbija and Dragan Kalinic was accepted, in which they complained about their removal from office in 2004.
By the decision of the high representative at the time, Bilbija was dismissed from the position of deputy head of the Operational Directorate at the headquarters of the Intelligence and Security Agency in Banja Luka and from other public and party positions he held. Kalinic was removed from the post of chairman of the National Assembly of the Republic of Srpska and president of the Serbian Democratic Party, and he was banned from holding any official, elected or appointed public office, as well as running for office in elections and serving in political parties.
In Article VII of the decision of the Constitutional Court of Bosnia and Herzegovina, in section 46, it is stated:
The Constitutional Court reminds that the Office of the High Representative (OHR) is the leading organization for the civilian aspect of the implementation of peace in BiH. With the Dayton Peace Agreement, which was signed in 1995, the high representative is tasked on behalf of the international community with overseeing the implementation of the civilian aspects of the Peace Agreement in Bosnia and Herzegovina. The high representative is also tasked with coordinating the activities of international and civil organizations and agencies operating in the country. The high representative is proposed by the Steering Committee of the Peace Implementation Council, and the appointment is confirmed by the United Nations Security Council, which approved the Dayton Peace Agreement as well as the deployment of troops in Bosnia and Herzegovina.
Harun Iseric, an assistant at the Faculty of Law of the University of Sarajevo, explained in his response to Raskrinkavanje that the decision of the Constitutional Court of Bosnia and Herzegovina referred to by Srna in the analyzed article is not relevant when it comes to examining the legitimacy or legality of the high representative. He specifies that in the explanation of the decision from 2006, the Constitutional Court observed the previous practice of electing a high representative.
The decision of the Constitutional Court of Bosnia and Herzegovina in case AP 953/05 is not relevant for examining the legitimacy or legality of the election of the high representative. First of all, in its explanation of the aforementioned decision, the Constitutional Court simply states its observation about the previous procedure for the election of the high representative. Secondly, it is not about the legal understanding or conclusion that the Constitutional Court elaborated in its decision, nor is it about the position expressed in the enacting clause of its decision, that they would be binding for the parties and all other persons (citizens, public authorities and others, or society as a whole), nor does the Constitutional Court of Bosnia and Herzegovina have the jurisdiction to examine the constitutionality of the procedure for electing a high representative. In this sense, the obligation and enforceability of the aforementioned decision of the Constitutional Court of Bosnia and Herzegovina cannot in any sense, context or interpretation result in the conclusion that the observation of the Constitutional Court on the previous procedure for the election of the high representative is a legal conclusion or understanding, which is binding as such.
So, Srna did correctly quote what was stated in the decision of the Constitutional Court of Bosnia and Herzegovina from 2006, but it is an observation of the Court about the previous practice and not a binding legal conclusion.
Does the OHR respect the decisions of the Constitutional Court of Bosnia and Herzegovina?
The author of Srna’s article wonders “how does the OHR expect domestic actors to respect the decisions of the OHR, when that same institution does not respect the decisions of the Constitutional Court of BiH”.
Iseric explains that the previous practice of the Constitutional Court and the practice of the Office of the High Representative indicate that the decisions of the Constitutional Court are binding for the OHR.
It is necessary to distinguish between two situations in the current practice of the Constitutional Court, as well as the practice of the work of the OHR. The first concerns the decisions of the Constitutional Court of Bosnia and Herzegovina in the process of abstract evaluation of constitutionality. The OHR accepted such decisions without objection, did not deny the jurisdiction of the Constitutional Court of Bosnia and Herzegovina to assess their constitutionality, and participated in the constitutionality assessment procedure as a friend of the court – amicus curiae – in the procedure of executing the decisions of the Constitutional Court, i.e. passing new acts or amending and supplementing earlier ones, now unconstitutional acts passed by the high representative. In this sense, the decisions of the Constitutional Court are binding for the Office of the High Representative (again, it is about the dispositive decision, but also the legal understanding and conclusion presented in the explanation of the decision). The Office of the High Representative explicitly stated in one of its public announcements: “Based on previous practice, the high representative will continue to allow the domestic judicial authorities to consider the laws he passes instead of the legislative authorities”. (https://web.archive.org) /web/20230706132301/https://www.ohr.int/visoki-predstavnik-donio-odluku-o-provedbi-odluke-ustavnog-suda-ap-95305/). Therefore, the Office has accepted the powers of the Constitutional Court to control the constitutionality of the general acts it passes, and these decisions are binding for the Office as such.
Iseric further states that the decision in case AP-953/05 is an example in which the OHR complied with the decision of the Constitutional Court.
Another situation is the decisions of the Constitutional Court of Bosnia and Herzegovina made in the procedure for the protection of human rights and fundamental freedoms, i.e. on the basis of appellate jurisdiction. The most pronounced example is the decision in case AP-953/05, which you also mention in your e-mail. Therefore, the Office of the High Representative reacted negatively against its decision only in the context of a decision made on the basis of appellate jurisdiction and prevented its execution in the manner ordered by the Constitutional Court of Bosnia and Herzegovina, but provided for an alternative way of its execution. Therefore, even then the Office of the High Representative did not stop the execution of the decision, but offered an alternative way of its execution and tried to comply with the decision of the Constitutional Court of Bosnia and Herzegovina. (https://web.archive.org/web/20230706132301/https://www.ohr.int/visoki-predstavnik-donio-odluku-o-provedbi-odluke-ustavnog-suda-ap-95305/)
In accordance with the stated facts, we evaluate the claim that Christian Schmidt falsely presents himself as a high representative, published in the Srna agency article, as fake news. His appointment was not confirmed by the UN Security Council, but this does not make him illegitimate or “illegally elected” because confirmation in the UN Security Council is not a condition for the appointment of a high representative of the international community in Bosnia and Herzegovina.
We give the same assessment to the claim that the OHR does not respect the decisions of the Constitutional Court of Bosnia and Herzegovina. The previous practice of the Constitutional Court and the practice of the Office of the High Representative indicate that the OHR respects the decisions of the Constitutional Court.
We evaluate all subsequent publications of these claims as the distribution of fake news.