1 of 15 25/10/2011 13:26 Having regard to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina and Articles 54 and 57 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina, at its session held on 23 March 2001, the Constitutional Court of Bosnia and Herzegovina adopted the following DECISION The Decision Amending the Law on Travel Documents of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina No. 27/00) is declared to be in conformity with the Constitution of Bosnia and Herzegovina. This Decision shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina and the Official Gazette of Republika Srpska. The Facts REASONS 1. The High Representative for Bosnia and Herzegovina, Mr. Wolfgang Petritsch, adopted on 29 September 2000, the Decision Amending the Law on Travel Documents of Bosnia and Herzegovina which was published in the Official Gazette of Bosnia and Herzegovina No. 27/00 of 27 October 2000. 2. This Decision amended the Law on Travel Documents of Bosnia and Herzegovina, published in the Official Gazette of Bosnia and Herzegovina No. 4/97, with amendments published in the Official Gazette of Bosnia and Herzegovina No. 1/99 and 9/99. 3. The Decision Amending the Law on Travel Documents specified which documents were to be regarded as travel documents within the meaning of the Law (Article 2) and established the design of the passport, i.e. that the cover should be of dark blue color, that the front cover should contain the words "Bosnia and Herzegovina", the coat of arms of Bosnia and Herzegovina and the word "Passport", that the text "Bosnia and Herzegovina" and "Passport" should be printed in the Bosnian, Croat and English languages (in Latin script) and in the Serb language (Cyrillic script), and that the text of the first page of the passport should be identical to the text of the front cover (Article 3). It further provided that the front cover of diplomatic passports and service passports should contain the words "Bosnia and Herzegovina", the coat of arms of Bosnia and Herzegovina and the words "Diplomatic Passport" or "Service Passport", that the text "Bosnia and Herzegovina" and "Diplomatic Passport" or Service Passport should be printed in the Bosnian, Croat and English languages (in Latin script) and in the Serb language (Cyrillic script), and that the text on the first page of the passport should be identical to the text of the front cover (Article 4). Moreover, it was provided that each passport should contain information on the type and the symbol of the country, and it should be specified that the bearer of the passport is a citizen of Bosnia and Herzegovina. The text on all pages of the passport, except the information provided under items 2 and 3 of Article 8, should be printed in the Bosnian, Croat and English languages (Latin script) and in the Serb language (Cyrillic script) (Article 5). A new Article 12 a) should be added, which would regulate the issuing of seaman's or maritime books (Article 6) and the Brčko District would also be competent to issue travel documents (Article 7). The issuing of travel documents for citizens fulfilling the requirements of the
2 of 15 25/10/2011 13:26 Law, but who were not issued a passport by an Entity, should be carried out by the Ministry of Civil Affairs and Communications, according to the procedure prescribed in a by-law of the Ministry of Civil Affairs and Communications (Article 8). The Decision also established the authorized persons for filing an application for travel documents. The issuing of the travel documents for citizens fulfilling the requirements accepted by the Law shall be regulated by a by-law to be issued by the Ministry of the Ministry of Civil Affairs and Communications of Bosnia and Herzegovina (Article 9). A request for issuance of a travel document, in addition to previous requirements, should be accompanied by evidence of payment of the price, and "Article 18" should be replaced by "Article 19" (Article 10). The competent body of the Brčko District should decide, along with the previously determined organs, on appeals by persons who were dispossessed of their travel documents (Article 12), and the Ministry of Civil Affairs and Communications of Bosnia and Herzegovina should be responsible for the purchasing of personalization equipment and consumable supplies, for the maintenance and repair of personalization equipment, and for purchasing, printing and deciding on the price of travel documents (Article 13). Article 14 of the Decision specifies the validity of the travel documents, and Article 15 deals with the publication and entry into force of the Decision. Procedure before the Constitutional Court 4. On 12 October 2000, thirty-four representatives of the National Assembly of Republika Srpska Milan Lazić, Mirjana Dejanović, Slavko Bojanović, Milenko Stanić, Angela Tripunovski, Miloš Zlojutro, Milan Lazić, Mičo Josipović, Borislav Paravac, Jasminka Radišković, Borivoje Milić, Vukašin Vojinović, Slavko Dunjić, Slobodan Šaraba, Ljiljana Nešković, Mirjana Petrović, Borislav Bojić, Dragan Kalinić, Dragan Čović, Nemanja Vasić, Predrag Radić, Risti Radenko, Čedo Markelić, Rade Kalamanda, Milijana Dakić, Dragutin Ilić, Slobodan Bilić, Slobodan Mrdić, Budimir Ačimović, Ostoja Knežević, Miko Perković, Vesna Pajić, Vlado Stanišić and Radojica Mlađenović submitted a request to the Constitutional Court of Bosnia and Herzegovina for the evaluation of the conformity of the Decision on Amending the Law on Travel Documents of Bosnia and Herzegovina, adopted by the High Representative on 29 September 2000, with the Constitution of Bosnia and Herzegovina. 5. On 16 November 2000, this request was communicated to the High Representative, who was given the opportunity to present his views on the request. Mr. Ian Campbell, as Head of the Legal Department and Deputy High Representative for Legal Affairs (hereinafter "the OHR"), submitted comments on the request on 22 January 2001. The Request 6. The thirty-four applicants consider that the High Representative for Bosnia and Herzegovina does not have the competence to adopt legal regulations according to Annex 10 of the Peace Agreement. They state that the High Representative is the final authority regarding the interpretation of the Agreement on Civilian Implementation of the Peace Settlement, which means that the High Representative is to interpret, but not to create, the law in Bosnia and Herzegovina, and therefore he cannot adopt legal regulations, since he would then be assisting with his authority in the adoption of laws that would have their basis in the Constitution. Further, the applicants claim that he does not have the power to adopt legal provisions under the Bonn Declaration, and moreover such declarations are acts of a political character and are not legally binding. 7. The applicants state that, since Chapter XI, item 2 (b) of the Bonn Declaration, which concerns the High Representative, provides for interim measures to take effect when the parties are unable to reach an
3 of 15 25/10/2011 13:26 agreement, which will remain in force until the Presidency or the Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned, the High Representative can adopt interim measures or decisions within the competence of the Presidency or the Council of Ministers, but not within the competence of the Parliamentary Assembly, since if such were vested in him, the decision would have needed to be presented before the Parliamentary Assembly for permanent entry into force. 8. The request further states that the High Representative exceeded the limits of his official authority and that there was no need for taking an "interim measure" i.e. a decision, since a law on travel documents already existed, and the design of the passport was determined by the Bonn Declaration, and therefore this is a decision which violates the basic right of the representatives to decide on issues within the competence of the Parliamentary Assembly. 9. The applicants consider that the previous requirement that the name of the Entity (in italics) should appear on the cover of the passport and on the first page did not violate the principle of a unique passport of Bosnia and Herzegovina. In the present case, according to the request, the High Representative, when enacting the challenged Law, was incited by some Bosniac representatives. According to the applicants, deleting the names of the Entities would not be in conformity with Article I, item 7 (a) and (b) of the Constitution of Bosnia and Herzegovina which provides for the so-called internal dual citizenship as regulated by a law of the Parliamentary Assembly and the laws of the Entities. According to these provisions, a citizen of Bosnia and Herzegovina is automatically also a citizen of one of the Entities of which Bosnia and Herzegovina is composed, and any citizen of an Entity is also a citizen of Bosnia and Herzegovina. 10. The request also states that deleting the Entities' names would not be in conformity with Article 34 of the Law on Citizenship of Bosnia and Herzegovina, according to which the citizenship of Bosnia and Herzegovina and the citizenships of the Entities are proven, inter alia, by possession of a passport of Bosnia and Herzegovina. 11. The applicants consider that the High Representative cannot amend, in the present case, the Law on Travel Documents by a decision, since a decision represents an act of weaker legal force than laws. Moreover, the High Representative is not competent to transfer the income from the passports to the budget of the common institutions, since, according to the applicants, the original income belongs to the Entities (Article VIII of the Constitution of Bosnia and Herzegovina). 12. In its comments on the request of the group of representatives of the National Assembly of Republika Srpska, the OHR pointed out that the High Representative has broad competences in the sphere of civilian implementation that follows from the international mandate under Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina. The scope of those competences is elaborated in detail in the Conclusions of the Conference of the Peace Implementation Council held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the intention of the High Representative to use his supreme authority in this field regarding the interpretation of the Agreement on Civilian Implementation of the Peace Agreement. The High Representative, as the final authority, interprets his powers as including the adoption of legal regulations. 13. In its comments the OHR further stated that in its decision on the constitutionality of the Law on State Border Service in case U 9/00 (Official Gazette of Bosnia and Herzegovina No. 1/01), the Constitutional Court confirmed that the High Representative may intervene in the legal system of Bosnia and Herzegovina, and that, in acting so, he is effectively substituting domestic legislators.
4 of 15 25/10/2011 13:26 14. Regarding the argument of the applicants that the challenged decision, as an act of a weaker legal force than a law, cannot amend a law, it is stated in the reply that with the Decision of the High Representative, amendments were adopted to the Law on Travel Documents of Bosnia and Herzegovina, which must be considered a domestic law. Just as the laws of Bosnia and Herzegovina can be changed completely or partially in a regular parliamentary procedure, the powers of the High Representative can be used for amending as well, in this case the Law on Travel Documents. The fact that the amendments to the Law on Travel Documents have their source in an instrument named "Decision" does not mean that this is an equivalent to the instrument having the same name in the legal tradition of Bosnia and Herzegovina. 15. Regarding the issue of the conformity of the challenged Decision with the Bonn Conclusions from 1997, it is pointed out that nothing in item XI.2 c) of the Bonn Conclusions, which represents the basis for the Decision of the High Representative, limits the possibility for the High Representative to adopt certain laws if he finds it necessary in the process of the promotion of the civilian implementation, even in cases where a law on the subject already exists. The OHR further noted that the Constitutional Court of Bosnia and Herzegovina itself, in its decision U 9/00, pointed out that the powers of the High Representative under Annex 10 of the General Framework Agreement, the resolution of the Security Council and the Bonn Conclusions, and the exercise of these powers, are not subject to review by the Constitutional Court. 16. With respect to the claims in the request that the Decision of the High Representative altered the design of the passports, and that the deletion of the names of the Entities from the passport would be in contravention of Article I.7 (a) and (b) of the Constitution of Bosnia and Herzegovina, which provides for both a citizenship of the Entities and a citizenship of Bosnia and Herzegovina, it is stated in the reply of the OHR that the Constitution of Bosnia and Herzegovina expressly entrusts the competence of passport regulation to the authorities at the State level. 17. The OHR further states that, on the basis of Article I.7 (e) of the Constitution, the Parliamentary Assembly has the right to regulate the passport of Bosnia and Herzegovina, which is then issued by the Entities. That is based on the concept that passport issuing is essentially a matter of the sphere of foreign relations or international matters, and the State of Bosnia and Herzegovina as a subject of international law is the only authority competent to regulate this matter. Article I.7 e) of the Constitution of Bosnia and Herzegovina authorizes the Parliamentary Assembly to adopt a Law on Travel Documents, which would contain provisions on the design of a passport issued in Bosnia and Herzegovina. In this context, the OHR also states that the general principle of constitutional interpretation must be taken into account, where one starts from the presumption of conformity of the laws and legal provisions with the constitutional norms, while it is the party raising the issue of unconstitutionality that must bear the burden of proof in the matter. The OHR emphasizes in its statements that this general principle has already been mentioned in the second and fourth Partial Decisions of the Constitutional Court in case No. U 5/98 (Official Gazette of Bosnia and Herzegovina No. 17/00 and 36/00). Besides, there is no ground for the claim that the change of the design of the passport issued in Bosnia and Herzegovina could violate any constitutional guarantee. As it has been noted, the applicants are claiming that deleting the names of the Entities from the cover of the passport would violate the right to an Entity's citizenship as guaranteed by Article I.7 (a) and (b) of the Constitution. While it is clear that a law that would deny the citizens' right to an Entity's citizenship would be in contravention of the aforementioned constitutional provisions, the amendments that are the subject of this decision are not doing that. On the contrary, it appears from the text itself of Articles I.7 (a) and (b) that they do not require the passport to be proof of an Entity's citizenship. Actually, passports are not even
5 of 15 25/10/2011 13:26 mentioned therein. Citizenships of the Entities are still protected by laws of the Entities and of Bosnia and Herzegovina regulating citizenship, which are establishing in detail the realization of this citizenship. 18. As it is stated in the request that the High Representative is not competent to transfer the income of the passports to the budget of the institutions of Bosnia and Herzegovina, since the original income realized by issuing passports belongs to the Entities, the OHR points out in its comments that, according to Article VIII.3 of the Constitution of Bosnia and Herzegovina, the Parliament may decide to direct the collected income into the budget of Bosnia and Herzegovina. Besides, the regulation of passports is a matter which is incontestably within the competence of the State. The capacity of the State to carry out its responsibilities relating to passports would be seriously put in question if it would not have the right to decide on the distribution of the funds realized by the implementation of the Law on Travel Documents, or by any amendment to this Law. 19. Regarding the conformity of the adopted amendments with the Law on Citizenship of Bosnia and Herzegovina, it is stated in the comments of the OHR that, according to the rules of interpretation, laws are to be interpreted as consistent insofar as such an interpretation is possible. In this case, the OHR considers that it is possible to interpret the amendments to the Law on Travel Documents and Article 34 of the Law on Citizenship in a consistent way, and that citizenship of Bosnia and Herzegovina and citizenship of the Entities do not exist independently of each other. Everyone having a citizenship of Bosnia and Herzegovina must by that very fact have a citizenship of an Entity. Therefore, in order to satisfy the requirement of Article 34 of the Law on Citizenship of Bosnia and Herzegovina, a person is allowed to present evidence of having a citizenship of Bosnia and Herzegovina and a citizenship of an Entity by presenting a passport. According to OHR even if the passport would not specify which Entity's citizenship the bearer of the passport has, such a specification would not be necessary according to Article 34 of the Law. Or Article 34 could be read as meaning that either a passport or a citizenship certificate can be used as evidence of citizenship of an Entity. However, even if Article 34 is interpreted as meaning that both a passport and a citizenship certificate are required to prove an Entity's citizenship (and not the citizenship of Bosnia and Herzegovina), the aforementioned amendments are still in effect according to the principle lex posterior. Admissibility 20. The request was lodged with the Constitutional Court according to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina, which reads: a) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: - Whether an Entity s decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina. - Whether any provision of an Entity s constitution or law is consistent with this Constitution. Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.
6 of 15 25/10/2011 13:26 21. The Decision on Amending the Law on Travel Documents of Bosnia and Herzegovina was adopted by the High Representative on 29 September 2000, after the draft Law on Amendments to the Law on Travel Documents of Bosnia and Herzegovina had obtained a majority among the representatives present at the voting in the House of Representatives of the Parliamentary Assembly, but had failed to obtain a majority of votes in the House of Peoples. 22. Regarding the competence of the High Representative to adopt laws and the competence of the Constitutional Court of Bosnia and Herzegovina to decide on the conformity of such laws with the Constitution of Bosnia and Herzegovina, the Constitutional Court already expressed in its decision No. U 9/00, published in the Official Gazette of Bosnia and Herzegovina No. 1/01, its position that the High Representative s powers follow from Annex 10 of the General Framework Agreement, the relevant resolutions of the Security Council of the United Nations and the Bonn Declaration and that these powers, and the exercise of these powers, are not subject to review by the Constitutional Court. However, insofar as the High Representative intervenes in the legal system of Bosnia and Herzegovina, substituting the domestic authorities, he acts as an authority of Bosnia and Herzegovina, and the laws enacted by him have the character of domestic laws and are to be considered the laws of Bosnia and Herzegovina. 23. The responsibility for safeguarding the Constitution was allocated to the Constitutional Court according to Article VI.3 of the Constitution, in conjunction with Article I.2 of the Constitution, which reads: Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections. The principle of effective protection of the Constitution follows from this, as the Constitutional Court already decided in case No. U 1/98 (Official Gazette of Bosnia and Herzegovina No. 22/98). The Constitution allocates to the Constitutional Court the power to review the conformity with the Constitution of all acts, regardless of the adopter, as long as this review is based on one of the competences referred to in Article VI.3 of the Constitution of Bosnia and Herzegovina. 24. The constitutionality of the Decision on Amending the Law on Travel Documents of 29 September 2000 was challenged by thirty-four representatives of the National Assembly of Republika Srpska. This is over a quarter of the number of members of the National Assembly which, according to the Constitution of Republika Srpska, has 83 members (Article 71 of the Constitution of Republika Srpska). 25. However, it is to be observed that the request was submitted to the Constitutional Court on 12 October 2000, i.e. before 27 October 2000, which was the date on which the Decision of the High Representative was published in the Official Gazette of Bosnia and Herzegovina No. 27/00. According to Article 14 of the Rules of Procedure of the Constitutional Court, a request for the institution of proceedings according to Article VI.3 (a) of the Constitution has to contain, inter alia, the title of the disputed act with the title and number of the Official Gazette in which it was published, and according to Article 27 of the Rules of Procedure, the Court may evaluate the constitutionality only of general acts which are in force. 26. In the present case, the Constitutional Court finds that the request of the group of representatives, although filed before the challenged decision was published in the Official Gazette of Bosnia and Herzegovina, should be considered admissible, since according to Article 27 of the Rules of Procedure it is the date of the Constitutional Court s decision and not the day of filing of the request that is relevant.
7 of 15 25/10/2011 13:26 27. For the aforementioned reasons, the Constitutional Court finds the present request to be admissible. Conclusions 28. The request of the applicants raises the following constitutional questions: - whether the High Representative is competent not only to adopt but also to amend laws; - whether the deletion of the names of the Entities from the travel documents is in conformity with Article I.7 (a) and (b) of the Constitution of Bosnia and Herzegovina, and with Article 34 of the Law on Citizenship of Bosnia and Herzegovina; and - whether the High Representative is competent to transfer the income from passports to the budget of the institutions of Bosnia and Herzegovina. 29. The question whether it was necessary to adopt the Decision despite the fact that the Law on Travel Documents already existed is a question of legislative policy and not a constitutional question. In this respect, the High Representative substituted domestic authorities in taking the view that amendments to the existing law were required. The Court also refers in this regard to its considerations in paragraph 22 above. 30. Article 3 of the Decision relating to the issue of deletion of the names of the Entities reads: Article 6 of the Law on Travel Documents of Bosnia and Herzegovina shall be amended to read as follows: The passport shall have the following design: 1. The cover shall be of dark blue color; 2. The front cover shall contain, in the following order: a) the words Bosnia and Herzegovina b) the coat of arms of Bosnia and Herzegovina c) the word Passport. 3. The text of items (a) and (c) shall be printed in the Bosnian, Croat and English languages (Latin script) and in the Serb language (Cyrillic script). 4. The text of the first page of the passport shall be identical to the text of the front cover. 31. Article I.7 (e) second and third sentences of the Constitution of Bosnia and Herzegovina read: [ ] Each Entity may issue passports of Bosnia and Herzegovina to its citizens as regulated by the Parliamentary Assembly. Bosnia and Herzegovina may issue passports to citizens not issued a passport by an Entity. There shall be a central register of all passports issued by the Entities and by Bosnia and Herzegovina. As can be concluded from this provision, the Constitution differentiates between designing passports and issuing passports, from which it follows that designing passports is within the exclusive competence of
8 of 15 25/10/2011 13:26 Bosnia and Herzegovina. As the Court pointed out in its second Partial Decision in case U 5/98 (Official Gazette of Bosnia and Herzegovina No. 17/00) in paragraph 12, Article III.1 of the Constitution of Bosnia and Herzegovina does not contain a complete catalogue of the competences of the institutions of Bosnia and Herzegovina, but there are competences of the institutions of Bosnia and Herzegovina in other regulations of the Constitution as well, in particular in connection with Article IV.4 (e) and V.3. Therefore, the Parliamentary Assembly of Bosnia and Herzegovina may regulate the design of passports at its discretion. As can be seen from the text of this constitutional regulation, Entities may issue passports only as regulated by the Parliamentary Assembly of Bosnia and Herzegovina. 32. According to the Constitution of Bosnia and Herzegovina, the Parliamentary Assembly is not required to ensure that passports of Bosnia and Herzegovina can serve as proof of citizenship of an Entity. The deletion of the names of the Entities cannot be unconstitutional according to Article I.7 (a) and (b) of the Constitution of Bosnia and Herzegovina. 33. As for the question of whether the decision of the High Representative is in conformity with Article 34 of the Law on Citizenship of Bosnia and Herzegovina, it is sufficient to point out that the Law on Citizenship is not a constitutional regulation. Therefore, the Constitutional court may not use the Law as the legal basis for review of the constitutionality. Otherwise, the Constitution of Bosnia and Herzegovina would be interpreted on the basis of the ordinary law. This would alter the whole hierarchy of the legal system which follows from the provision of Article III.3 (b) on the supremacy of the Constitution of Bosnia and Herzegovina. 34. The contested provision that the income from travel documents can be transferred into the budget of the institutions of Bosnia and Herzegovina reads: Article 28 of the Law on Travel Documents of Bosnia and Herzegovina shall be amended to read as follows: Ministry of Civil Affairs and Communications of Bosnia and Herzegovina shall be responsible for the purchasing of personalization equipment and consumable supplies, for the maintenance and repair of personalization equipment, and for purchasing, printing and deciding on the price of travel documents. as well as for the distribution to the bodies referred to in Article 13 of this Law. In the view of the above, it is sufficient to point out that Articles IV.4 (b) and VIII.3 of the Constitution indicate, expressis verbis, that the Parliamentary Assembly is competent to collect the income. Therefore, the transfer of the income to the budget of Bosnia and Herzegovina is in conformity with the Constitution of Bosnia and Herzegovina. 35. Based on the above, the Constitutional Court concludes that the Decision on Amending the Law on Travel Documents of Bosnia and Herzegovina is in conformity with the Constitution of Bosnia and Herzegovina. According to Article VI.4 of the Constitution of Bosnia and Herzegovina, decisions of the Constitutional Court are final and binding. The Court ruled in the following composition: President of the Court Prof. Dr. Snežana Savić Judges: Prof. Dr. Kasim Begić, Dr. Hans Danelius, Prof. Dr. Louis Favoreu, Prof. Dr. Joseph Marko, Dr. Zvonko Miljko, Azra Omeragić, Prof. Dr. Vitomir Popović and Mirko Zovko.
9 of 15 25/10/2011 13:26 Pursuant to Article 36 of the Rules of Procedure of the Constitutional Court the judges Prof. Dr. Vitomir Popović and Prof. Dr. Snežana Savić gave their separate opinions. U 25/00 23 March 2001 Sarajevo Prof. Dr. Snežana Savić President of the Constitutional Court of Bosnia and Herzegovina The Court is not competent to review the powers vested in the High Representative under Annex 10 to the Dayton Peace Agreement or to review the exercise of those powers. However, the Court may review the constitutionality of laws or amendments thereto, proclaimed by the High Representative in the place of the Parliamentary Assembly of Bosnia and Herzegovina. The issues not explicitly listed in Article III. 1 of the Constitution of BiH, referring to the competencies of the institutions of BiH, do not necessarily fall within the exclusive competence of the Entities. Under the Constitution, the Parliamentary Assembly of BiH is competent to decide on the sources and amounts of the funds necessary for the operation of the institutions of BiH. Ordinary laws do not serve as a standard of review for the Constitutional Court.
10 of 15 25/10/2011 13:26 ANNEX Separate Opinion of Judge Snežana Savić against the majority Decision of the Constitutional Court of Bosnia and Herzegovina in the case U 25/00 dated 23 March 2001 Having regard to Article 36 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina, No. 24/99), as one of four judges out of nine judges who voted against the Decision, I hereby dissent my opinion on following grounds: 1. I am of the opinion that the majority Decision in the case U 25/00 that the High Representative, whose powers arise from Annex 10 to the General Framework Agreement, relevant resolutions of the United Nations Security Council and the Bonn Declaration and are not subject to review of the Constitutional Court as well as their exercise, intervened into the legislative system of Bosnia and Herzegovina as an international authority and acting as a substitute for local authorities, while the laws passed by him shall be considered local laws and must be deemed laws of Bosnia and Herzegovina, is contradictory and it cannot be accepted for the same reasons I provided in my separate opinions concerning the cases U 9/00 and 40/00. Reasons for this are as follows. First of all, an issue arises as to how can an act be found to be a law of Bosnia and Herzegovina if the powers of its adopter are not examined? The Decision provides that this law is a local law and is to be deemed law of Bosnia and Herzegovina. Another issue arises: what is the nature of local law or law in general? Is it only its contents, as claimed in this and previously mentioned decisions of the Court, or is it to be evaluated in terms of its form at the same time, particularly if this is explicitly requested, which was the case here and with previously mentioned cases? I deem that the Court, by accepting that these were the laws of Bosnia and Herzegovina, indirectly accepted to evaluate the formal aspect of those acts, which indubitably means the powers of the High Representative, as a general fact and without the possibility of review of constitutionality of the said acts in terms of form. There can be no doubt that this is contradictory, particularly in view of the ascertainment in the majority Decision: The competence for protection of the Constitution has been assigned to the Constitutional Court of Bosnia and Herzegovina, as the first line of Article VI.3 of the Constitution reads that the Constitutional Court shall uphold this Constitution. Furthermore, Article I.2 of the Constitution must also be accounted for: Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections The principle of effective protection of the Constitution follows from these constitutional regulations, as the Court already decided in the case 1/98. Hence, the Constitutional Court is empowered to review the conformity of all acts with the Constitution, irrespective of the adopter(s), as long as that review rests on one of the competencies enumerated under Article VI.3 of the Bosnia and Herzegovina Constitution. A conclusion contradictory to the Decision follows from this. Namely, it is decided that these were the laws of Bosnia and Herzegovina and that the Constitutional Court is entitled to review their conformity with the Constitution, but at the same time it is said that the powers of the High Representative are not subject to review by the Constitutional Court. Consequently, it is refused to evaluate the constitutionality of acts passed by the High Representative from the formal aspect, as he represents an international institution, but it is accepted that it could be done, particularly from the substantive aspect since this was an intervention into the Bosnia and Herzegovina legislative system, i.e. substitution for local authorities. In addition, this Court s view must also be linked to a decision in the case U 40/00 when the Court, in view of the PEC
11 of 15 25/10/2011 13:26 Rules and Regulations, decided that it was not competent to evaluate its constitutionality. In this respect, one must arrive at the conclusion that the majority Decision of the Court follows neither the Bosnia and Herzegovina Constitution nor its standards set up in previous decisions. The ascertainment stated under Item 29 of the majority Decision concerning the issue whether it was necessary for the High Representative to pass a Decision on Amendments to the Decision on Travel Documents, although there already existed a Law on Travel Documents adopted by the Parliamentary Assembly, is an issue of legislative activity or legislative policy of parliamentary institutions of Bosnia and Herzegovina, it follows that the High Representative, by adopting a decision that amended a law, acted as substitute for the local authorities within the bounds of constitutional powers constitutes an illogical assertion in regard to what has already been said. Namely, although the Court underlined that the powers of the High Representative were not subject to its review, its ascertainment leads to a conclusion that this falls under the legislative policy of parliamentary institutions of Bosnia and Herzegovina. Accordingly, one does not agree to evaluate the powers, but this is clearly being done by the mere ascertainment and without a proper legal analysis. Additionally, it is accepted that the legislative activity of the Parliamentary Assembly, i.e. its legislative policy, should be regarded as identical to the will, i.e. the decision of the High Representative. This cannot be done, especially in this case, as it is evident that the Parliamentary Assembly s legislative policy was fairly different simply because it did not adopt the law at issue. The Reasons adduced for the ruling are contradictory, particularly since one cannot deduce the essential purpose and values of the High Representative s decision. Each legal norm of any law (and other legal acts) must have a purpose and the value it protects, which is guaranteed by the Constitution. 2. In view of the substantive aspect of the constitutionality of the High Representative s decision, I am of the opinion that the regulation of definition of travel documents is limited by Article I.7 (a) and (b) of the Constitution of Bosnia and Herzegovina and Article 34 of the Law on Citizenship, and it cannot be claimed that neither under Article I.7 (a) and (b) of the Bosnian and Herzegovina Constitution nor under any regulation of the Constitution are there any responsibilities of the Parliamentary Assembly that passports of Bosnia and Herzegovina shall be used as evidence of citizenship of any Entity. Accordingly, deletion of names of Entities is unconstitutional. Also, one cannot accept the conclusion of the majority Decision that The Law on Citizenship is not within the domain of the constitutional matters, and that it cannot be used as a standard of review by the Bosnia and Herzegovina Constitutional Court. Otherwise, the Constitution of Bosnia and Herzegovina would be interpreted on the basis of one single law, which would turn over the entire hierarchy of law and order that follows from the provision of supremacy of Article III.3 (b) of the Constitution of Bosnia and Herzegovina. On the contrary, an obligation that travel documents (passports) perform the function of proving citizenship of both Bosnia and Herzegovina and one Entity follows from the Constitution of Bosnia and Herzegovina, the very nature of citizenship in general but also the citizenship of Bosnia and Herzegovina as a complex state community and the nature of citizenship in states with complex structures in general, i.e. the nature of citizenship as defined by Article I.7 (a) and (b) of the Bosnia and Herzegovina Constitution but also by Article 34 of the Law on Travel Documents, which should be viewed as an act that regulates rights and responsibilities from the domain of citizenship and specifies the said constitutional provisions whose enforcement is then regulated by the Law on Travel Documents [1]. Moreover, the very Constitution of Bosnia and Herzegovina summarized the provisions on travel documents under Article I.7 together with citizenship, which speaks clearly of their mutual relation and is consistent with the systematic interpretation of law.
12 of 15 25/10/2011 13:26 Additionally, citizenship as a legal category, a form of equal relation between the state and natural persons, imposes certain rights and responsibilities on both sides. The Constitution established the citizenship of Entity and of Bosnia and Herzegovina. The Law on Citizenship as a lower-instance legal act put this in concrete terms and, according to Article 34 thereof, there is an obligation to prove one s citizenship by use of travel documents, which is their purpose. This is why the Law on Travel Documents enjoys a specific status in relation to the Law on Citizenship; the former seems to be the concrete manifestation of the latter and cannot be viewed separately from it and the former cannot offer new (different) solutions in regard to citizenship and its attestation. This is the point of essence and hierarchy of a legal system and relation of these two acts between one another and in relation to the Bosnia and Herzegovina Constitution. Both laws, as lower-instance legal acts, function in the sense of providing concrete solutions of constitutional provisions and must be in conformity with them. If both of them are in conformity with them, that means they are in mutual conformity as well. However, when the High Representative passed his decision on amending the latter, the two of them became incompatible, which is untenable in a legal system. This is why, though in another sense, as the majority Decision reads, The entire legal system hierarchy is turning over. Because of this and because the contents of the two laws are different: one defines the issue of citizenship while the other regulates its proving, the interpretation set out in the majority Decision cannot be accepted. Otherwise, it would follow that citizenship would be prescribed by the Law on Travel Documents, or that it would be established or amended by the said law, which is nonsense. Citizenship of each Entity, in accordance with the Constitution of Bosnia and Herzegovina and the Law on Citizenship, exists beyond doubt and it remains unclear why the amendments to the Law on Travel Documents disregard it. Citizenship of each Entity exists and is of relevance according to the Constitution of Bosnia and Herzegovina and the Law on Citizenship, which is confirmed by Article 29 of the said Law: Following the change of the place of residence from the territory of one Entity to another Entity, citizenship of Entity will also change if the person changing the territory wishes so, provided that this change takes place after this Law takes effect. It evidently follows that, even in a simple situation such as the place of residence, citizenship of Entity plays a significant role. If all citizens of Bosnia and Herzegovina have the citizenship of Bosnia and Herzegovina and the citizenship of one Entity under the Constitution of Bosnia and Herzegovina, it is their right that this fact, the right not introduced by the Law on Travel Documents but the Bosnia and Herzegovina Constitution and the Law on Citizenship, be duly entered into their travel documents. What is the reason for this to be so and can this right of the Bosnia and Herzegovina citizens, who are the citizens of one of the Entities at the same time, be taken away from them? This reason has no strongpoint either in the Constitution of Bosnia and Herzegovina or in the Law on Citizenship. In addition, Article 34 of this Law is very explicit: Citizenship of Bosnia and Herzegovina and citizenship of each Entity are proved by a certificate of citizenship of Bosnia and Herzegovina, a certificate of citizenship of Entity or a passport of Bosnia and Herzegovina. Namely, this is a cogent norm that expressly provides for the citizenship of Bosnia and Herzegovina and that of Entity (according to the Constitution, Entity citizenship is relevant for there can be no citizenship of Bosnia and Herzegovina without that of Entity) to be established by a certificate of citizenship of Bosnia and Herzegovina and that of Entity or by a passport. What follows is that if citizenship is being proved by both certificates of citizenship (Bosnia and Herzegovina and Entity), those facts must be duly entered in a passport (travel permit). Given the Constitution and nature of Bosnia and Herzegovina, both forms of citizenship represent a unique and complex category of citizenship of Bosnia and Herzegovina and cannot be viewed separately. The nature of travel documents is defined as follows: A travel permit serves its holder as a means of establishment of one s identity and as evidence of citizenship [2]. If Article I.7 (a) and (b) of the Bosnia and
13 of 15 25/10/2011 13:26 Herzegovina Constitution provide that citizens of Bosnia and Herzegovina have the citizenship of Bosnia and Herzegovina and of one Entity and if the Law on Citizenship of Bosnia and Herzegovina puts it in more concrete terms by laying down an obligation that the citizenship would be proved by presentation of travel documents, an issue arises as to how a passport holder will prove his/her citizenship of Entity that is relevant under the Constitution of Bosnia and Herzegovina and the Law on Citizenship. The Law on Travel Documents must be harmonious with the Bosnia and Herzegovina Constitution but also with the Law on Citizenship, which sets forth the rights and responsibilities on citizenship provided for by the Constitution of Bosnia and Herzegovina and which lays down a procedure how citizenship is proved. This having been said, an unavoidable conclusion would be that the decision of the High Representative is in opposition to the nature of citizenship of Bosnia and Herzegovina set up under the Constitution of Bosnia and Herzegovina, i.e. it is in contravention to Article I.7 (a) and (b) of the Bosnia and Herzegovina Constitution. This is important since citizenship, as a form of legal relation or even an entirety according to some authors [3], may exist between natural persons and a unitary state, or between natural persons and a complex state. In complex states, one has priority at one point/place while the other has priority at another point/place, there is unity somewhere, i.e. a rule that both are acquired at the same time and that none is considered as principal. The manner in which citizenship is regulated in the Law on Citizenship is in compliance with the Constitution of Bosnia and Herzegovina and the Law on Travel Documents must follow this form of character of citizenship of Bosnia and Herzegovina, for both laws must operate so as to introduce practical solutions and implementation of constitutional provisions on citizenship and travel documents. It follows that the majority Decision that neither under the Bosnia and Herzegovina Constitution nor under any regulation of the Constitution are there any responsibilities of the Parliamentary Assembly that passports of Bosnia and Herzegovina shall be used as evidence of citizenship of any Entity, coupled with a general view of legal theory and practice when one deals with complex citizenship (prescribed by Article I.7 of the Constitution of Bosnia and Herzegovina) and the fact that the citizenship is proved by both a certificate of citizenship and a passport, is illogical, legally ill-founded and basically contradictory. 3. The difference between definition and issuance of passports is fairly manifest. Namely, Article I.7 (e) of the Bosnia and Herzegovina Constitution explicitly provided for a procedure: Each Entity may issue passports of Bosnia and Herzegovina to its citizens as regulated by the Parliamentary Assembly. Issuance of passports implies a complete procedure of issuance of travel documents save, of course, the very procedure of normative definition of form and contents of passports that is to be determined by the Bosnia and Herzegovina Parliamentary Assembly. An assertion that, pursuant to Article IV.4 (b) and Article VIII.3 of the Bosnia and Herzegovina Constitution, the Parliamentary Assembly is empowered to regulate revenues collection and that the transfer of revenues into the Bosnia and Herzegovina Budget is consistent with the Bosnia and Herzegovina Constitution, cannot be accepted in the present case as it is only a general provision. It is not her purpose. Its purpose is, in addition to regular revenues for the Budget of Bosnia and Herzegovina for carrying out of its competencies under the Constitution of Bosnia and Herzegovina, that the Parliamentary Assembly determines another mode of revenues collection. This provision should be linked to the provision of Article I.7 (e), which is relevant in the present case. Furthermore, this Law was not adopted by the Parliamentary Assembly but the High Representative, which brings us back to the beginning as we deal with Entity revenues to be decided upon by their representatives in the Parliamentary Assembly. The purpose of this provision is for them to decide that, in addition to regular revenues to the Bosnia and Herzegovina Budget, some other revenues could be set aside. The procedure of normative definition of passports by the Parliamentary Assembly does not imply
14 of 15 25/10/2011 13:26 their processing and collection of revenues to this purpose, as the Constitution of Bosnia and Herzegovina mentions this nowhere. Article IV.4 (b) of the Constitution speaks of sources and amounts of revenues for the operation of the institutions of Bosnia and Herzegovina and international obligations of Bosnia and Herzegovina. An issue arises as to what institutions of Bosnia and Herzegovina and what international obligations of Bosnia and Herzegovina are being referred to, when Article I.7 clearly defines that issuance of passports falls under the competencies of the Entities. It follows that the present case is not in conformity with the said Article of the Bosnia and Herzegovina Constitution. For said reasons, I hold that the majority Decision of the Court is not founded in the Constitution of Bosnia and Herzegovina and that Reasons adduced for its adoption are void of legally valid arguments. In other words, the Decision on Amendments to the Law on Travel Documents ( Official Gazette of Bosnia and Herzegovina, No. 27/00) is not in conformity with Article I.7 (a), (b) and (e) of the Bosnia and Herzegovina Constitution. 22 April 2001 Banja Luka Prof. Dr Snežana Savić Judge Constitutional Court of Bosnia and Herzegovina
15 of 15 25/10/2011 13:26 Separate DISSENTING opinion of Judge Vitomir Popović to the Decision of the Constitutional Court of Bosnia and Herzegovina in the case U 25/00 dated 23 March 2001 Having regard to Article 36 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina, No. 24/99), as one of four judges out of nine judges who voted against the Decision, I hereby dissent my opinion on following grounds: 1) I fully support the view taken by Judge Snježana Savić in her disagreement with the adopted Decision. 2) Item 35 para 3 of the Decision wrongfully provides that this Decision was adopted by the full composition of the Court, which is not true since Judges Vitomir Popović, Snežana Savić, Mirko Zovko and Zvonko Miljko voted against it. By acting in this manner, an attempt was made to attribute certain legal relevance to the Decision that it does not enjoy given the manner of its adoption and the manner of voting (five judges voted in favour of the Decision while four judges voted against it). Banja Luka 21 June 2001 Prof. Dr Vitomir Popović Judge Constitutional Court of Bosnia and Herzegovina [1] It could be said for these two laws that they are ina specific relation; i.e. the Law on Citizenship has the character of the basic (superordinate) law while the Law on Travel Permits has the character of ancilarry (subordinate) law viewed from the aspect of their contents on one side and travel permits as evidence of citizenship on the other. It follows that a characteristical standardization in the law theory could be accepted in the present case (vidi/see, M. Popovic Prilozi teoriji prava/supplements to the Law Theory, Beograd/Belgrade, 1977, str./p. 47) and, by analogy, these laws must be in harmony, i.e. the subordinate law must not contradict the superordinate law. [2] Pravna enciklopedija/lexicon of Legal Terms, Beograd/Belgrade, 1979, 268. [3] Pravna enciklopedija/lexicon of Legal Terms, Beograd/Belgrade, 1979, 268