presidents and vice presidents of the Senate For instance, in 2016, Bolivia held a consti- ing the specific
specific disease, that the magistrate
and the Chamber of Deputies, thus, leaving
a vacuum of power. Days later, the Second
Vice president of the Senate Jeanine Áñez
assumed the interim presidency of Bolivia.
In February 2020, an article published in
the Washington Post questioned the alleged
fraud of 2019 based on a statistical analysis
made by researchers of the Massachusetts
Institute of Technology whose work was
commissioned by the Center for Economic
and Policy Research3.
General elections were held again in Oc-
tober 2020 and MAS returned to power.
With the ruling party again in the govern-
ment, political and judicial actions were
taken against the people accused of the so-
called 2019 coup. In March 2021, pretrial
detention was ordered for former Senator
Jeanine Áñez. The former President was
accused of sedition, terrorism, and conspir-
acy in the case called “Golpe de Estado” by
the State Prosecutor’s Office. The arrest of
former ministers of the State’s portfolio in
2019 was also ordered. The European Par-
liament and international human rights or-
ganizations questioned the impartiality of
the legal proceedings due to the interest of
the government and the charge of terrorism
against Áñez4. Likewise, the use of pretrial
detention against the former President has
been condemned as it has been considered
abusive and a violation of human rights. Ac-
cording to Bolivian law, pretrial detention
cannot last more than six months, howev-
er, in August 2021, a judge ordered Jeanine
Áñez’s pretrial detention to be extended for
another six months.
2. The Plurinational Constitutional Court
The 2009 Constitution created the Plurina-
tional Constitutional Court as the country’s
highest judicial tribunal. The Court has nine
judges who are elected through general elec-
tions for a period of six years. Since its cre-
ation to date, the Tribunal has not been able
to achieve legitimacy and the main reason is
that its decisions have been controversial be-
cause they play a key role in legitimizing the
acts of power. Also, the independence of the
Tribunal is put into question because of its
close relationship with the Executive.
tutional referendum that proposed constitu-
tional amendments that allowed President
Morales to run for a third consecutive term.
The elections concluded with the rejection
of a fourth term. However, the ruling party
in an unexpected movement used the jus-
tice system to inquiry about the possibility
of reelection, consequently, filed an uncon-
stitutionality lawsuit against many articles
of the Electoral Regime Law that stated that
reelection could only be possible for once
as indicated in the Bolivian Constitution.
In 2017, through Judgment 0084/2017, the
Plurinational Constitutional Court declared
the unconstitutionality of many articles of
the Electoral Regime Law. According to the
Tribunal, although the electoral law and the
Constitution did not have incompatibilities
between them, the article 23 of the American
Convention on Human Rights was more “fa-
vorable” to political rights; hence, the Court
opened the door for indefinite reelection.
This decision helped current president Evo
Morales to run for another term.
The few constitutional judges who have
questioned the government or decided
against its interests have been subject of re-
moval proceedings and political persecution.
In 2014, a claim of unconstitutionality was
filed against several articles of the Law of
Plurinational Notaries for allowing the inter-
ference of the Executive5. The lawsuit was
admitted by constitutional judges Soraida
Chánez, Ligia Velásquez and Gualberto Cusi.
The Chamber of Deputies and the Chamber
of the Senate initiated criminal sanctions and
the dismissal for prevarication and breach of
duties against the judges. The senators and
deputies accused them of having created a
“legislative vacuum”. Velásquez resigned
from her position while Chánez and Cusi
were sanctioned with dismissal. During the
process, public opinion condemned the sys-
tematic persecution of Gualberto Cusi, who
had previously disapproved the reelection of
Evo Morales and had openly expressed con-
cerns about the interference of the Executive
in the Plurinational Constitutional Court.
The government violated Cusi’s rights to in-
timacy and privacy because Health Minister
Juan Carlos Calvimontes revealed, in a press
conference, the private health details, includ-
suffered.
Moreover, the Court’s behavior has also
changed according to the political moment
as could be seen after Judgment 0052/2021.
As established in the previous section, the
2019 Bolivian general elections divided pub-
lic opinion and caused a vacuum of power
after the resignation of the elected authori-
ties. Minutes after the Second Vice President
of the Senate Jeanine Áñez proclaimed her-
self President, the Court issued a statement
which indicated that according to Judgment
0003/01 presidential succession operates
immediately. In that sense, due to the seri-
ous situation in the country, the Tribunal en-
dorsed the presidential succession. However,
after the return to power of the ruling party in
2021, with Judgment 0052/2021, the Court
changed its criteria and made clarifications
that contradict the statement issued in 2019.
Many jurists as well as public opinion
claimed that the lack of consistency of the
Court’s reasoning regarding its own prece-
dents caused legal insecurity; however, it is
not the only setback regarding the behavior
of the Court. Another aspect that complicates
its legitimacy and puts into question its inde-
pendence is related to the lack of processing
speed of controversial causes. Often, courts
are accused of not solving pending cases in
a reasonable time or delaying its decision on
purpose and the Plurinational Constitutional
Court has not been an exception. Howev-
er, there are also allegations that the Court
changes the dates of its decisions and delays
its notification to the parties. For instance,
a group of jurists filed an annulment claim
against judgment 0084/2017 in which indef-
inite reelection was allowed on the grounds
that the Judgment affected human and con-
stitutional rights6. Despite the insistence for
an answer, the Court remained silent. For
this reason, in October 2020, the jurists filed
an amparo action, a judicial mean for pro-
tection, in which they alleged the violation
of their rights due to the lack of response
from the Court. One day before the amparo
hearing, on April 20, 2021, the inadmissi-
bility of the annulment lawsuit filed in 2019
against Judgment 0084/2017 was notified.
Consequently, the Court denied the amparo,
2021 Global Review of Constitutional Law | 39
considering that the decision had indeed ob-
tained a response. The Court argued that the
inadmissibility was resolved on December
24, 2019, with number AC 126/2019-CA/S.
However, it was criticized that it was noti-
fied on April 20, 2021, just one day before
the amparo hearing. Because of this, the ju-
rists filled a complaint appeal, but it was de-
nied by the Court.
3. Gender violence
Violence against women is one of the most
serious problems in Bolivia. Even though
there is a legal framework that protects
women such as Law 348, more cases of
domestic violence, sexual abuse, and fem-
icide are reported every year. The Special-
ized Prosecutor’s Office for Gender-Based
Crimes reported that in 2021 there were
about 2,541 cases of sexual abuse, 2,138
cases of rape, and 2,007 cases of child and
adolescent rape. Also, during this year, 108
cases of femicides and 46 infanticides were
registered. Consequently, the government
announced that structural measures would
be taken in 2022 and it would be a year of
“Cultural Revolution for Depatriarchaliza-
tion” so as to achieve a life free of violence
against women.
The judicial handling of cases of gender vi-
olence is seen as one of the main challeng-
es to solve the problem. Wilma Flores de-
nounced her ex-partner Marcelino Martínez
twice for domestic violence and serious and
minor injuries and requested a restraining or-
der. Martínez, who already had a history of
violence, was arrested, however, he was re-
leased by Prosecutor Gerardo Balderas. Lat-
er, Martínez murdered Wilma Flores. This
case caused outrage and a commission of the
Chamber of Deputies requested the imme-
diate dismissal of the prosecutor for having
released Martínez. But this was not the only
case in which the handling of gender violence
cases by the authorities was questioned.
In 2021, a judge of the Sala Penal Primera
de Cochabamba revoked the pretrial deten-
tion of a member of a gang called “Wander
Rap” who was accused of the femicide and
gang rape of 16-year-old María del Carmen
Carvallo Reyes in 2016. Following the de-
40 | I•CONnect
cision, the mother of the victim proposed
an amparo action and the Sala Constitucio-
nal Primera del Tribunal Departamental de
Justicia de Cochabamba annulled the deci-
sion. However, by then, the defendant was
already a fugitive from justice. The Sala
Constitucional recalled that the judicial au-
thority must apply a gender perspective in its
analysis and decision, according to Bolivian
legislation and specifically, according to the
Protocol to judge with a gender perspective
developed by the Supreme Court of Justice,
Ministry of Justice and Institutional Trans-
parency, the Gender Committee of the Judi-
cial Branch, and the Mission of the Office
of the United Nations High Commissioner
for Human Rights. Likewise, the Sala Con-
stitucional stressed that the judge’s decision
lacked motivation. Subsequently, the judge
was accused by the Prosecutor’s Office of
prevarication and breach of duty.
III. CONSTITUTIONAL CASES
1. The unconstitutionality of trials in absen-
tia: ¿A lost judgment?
On March 11, 2021, through ruling
0012/2021, the Plurinational Constitutional
Court resolved an unconstitutionality law-
suit filed in 2019. The decision declared the
unconstitutionality of articles 91 BIS and
344 BIS of the Code of Criminal Procedure,
which were incorporated by article 36 of
Law No. 004. The articles declared uncon-
stitutional referred to the trial in absentia in
cases related to corruption crimes. This judg-
ment has important procedural implications
for the judicial system because, as it is no
longer possible to judge a person in his or her
absence, those accused of corruption must be
extradited to guarantee their rights.
This case was surrounded by much contro-
versy because of the legal insecurity creat-
ed by the declarations of the authorities and
how the case was handled. Hence, public
opinion, as well as the media, referred to the
Judgment as “the ghost sentence” (“la sen-
tencia fantasma”) or the “lost judgment”. On
March 25, 2021, Justice Minister Iván Lima
criticized Judgment 0012/2021 in the media
because extradition would be necessary to
continue the trial in cases of corruption. He
said that it was “no good news”, and that the
constitutional decision had many implica-
tions on the pending cases.
Two months after the declarations of Lima,
the President of the Plurinational Constitu-
tional Court Paúl Franco denied the existence
of the Judgment even though it had already
been circulating and had the signature of six
of the nine judges of the Court. According to
Franco’s statements, this was a preliminary
version and would not be official until the
interested parties were notified7. However,
many argued that if the decision would only
have an effect until the notification, then, the
rights of those whose cases were pending
will remain in legal indetermination8. Also,
they insisted on the fact that the judgment
was already available for the public.
In May 2021, Paúl Franco announced that
the lawsuit filed in 2019 would be known
again, despite the critics, that there was al-
ready a judgment over that case. Nonetheless,
in September, Senator Andrea Barrientos of
the opposition requested the TCP a report on
the “lost judgment” 0012/2021. However, the
Tribunal refused to offer an answer arguing
its independence and autonomy. The Court
indicated that it would provide information if
the president of the Senate refers the queries.9
2. Ipso facto succession is not possible after
the resignation of elected authorities
Through Judgment 0052/202110, the Pluri-
national Constitutional Court resolved an
appeal for annulment proposed by former
Deputy Margarita del Carmen Fernández
Claure against former Deputy Susana Rivero
Guzmán and former Deputy Simón Sergio
Choque Siñani for having usurped functions
in 2019 as Vice president and President of
the Chamber of Deputies of Bolivia, respec-
tively. The Judgment was preceded by the
serious political situation that the country
experienced after the tumultuous crisis of
the 2019 general elections and was issued
precisely at a time of high political tension.
Deputy Susana Rivero Guzmán (MAS),
First Vice President of the Chamber of
Deputies, announced through Twitter her
resignation from her position and did not
perform her duties for six days in a row.
Given this, Deputy Margarita del Carmen
Fernández Claure, Second Vice President
of the Chamber of Deputies, and member of
the Unidad Democrática, an opposition par-
ty, requested the presidency of the Chamber
by succession. However, on November 13,
2019, Susana Rivero issued the Comunica-
do SG 0010/2019-2020, through which she
assumed the presidency of the Chamber of
Deputies due to the resignation of Víctor
Borda, the former president. Subsequently,
Rivero issued a chamber resolution, Resolu-
ción Camaral 062/2019-2020, in which she
assumed the power to elect the new presi-
dency of the Chamber. In the early hours of
November 14, 2019, Rivero swore in Deputy
Simón Sergio Choque Siñani as President of
the Chamber of Deputies.
On November 19, 2019, Deputy Fernández
filed an appeal for annulment, an action con-
templated in the Bolivian legal system against
all acts that are issued without jurisdiction or
competence, against Susana Rivero for having
issued the Comunicado SG 0010/2019- 2020
and Resolución Camaral 062/2019-2020 de-
spite having resigned from her position, as
well as against Simón Sergio Choque, for all
their actions after November 12, 2019.
The Tribunal specified that, through Judg-
ments SC 0748/2003-R of June 4, 2003, and
SCP 1708/2013 of October 10, 2013, as well
as in other judgments, that for the resigna-
tion of an elected authority to be valid, it
must follow the formalities established in the
Constitution and legislation. Also, the TCP
highlighted that in the Judgment 1708/2013
the Court previously referred to the “Ley
Contra el Acoso y Violencia Política Hacia
las Mujeres” (Law Against Harassment and
Political Violence Towards Women), accord-
ing to which, female elected candidates must
deliver the resignation to their candidacies
or their positions, in the first place, to the
Órgano Electoral Plurinacional, which is the
electoral institution in Bolivia.
According to the TCP, any action that devi-
ates from the conditions established for the
termination of a mandate of elected author-
ities by resignation is considered a de facto
route. In this case, as said by the Reglamento
General de la Cámara de Diputados, the reg-
ulation of the Chamber of Deputies, all resig-
nations will only become effective after the
discussion of the Chamber of Deputies in a
plenary assembly. The deputies must decide
the situation through a resolution and accept
or reject the resignation. Consequently, the
TCP considered that the resignation of Dep-
uty Susana Rivero, through Twitter, was in-
valid because it did not fulfill the established
requirements. Regarding the allegations of
Deputy Margarita Fernández that Susana
Rivero did not hold public office for six days
in a row and, thus, incurred in a cause for
cessation of mandate, the Court considered
that the Ethics Commission of the Chamber
of Deputies should have made a report, af-
ter which, the Assembly of Deputies had to
decide about the cessation of mandate. The
TCP stated that as Ethics Commission never
summited any report about former Deputy
Susana Rivero, the Court could not make a
statement about that allegation.
On the other hand, the TCP stressed that the
ipso facto succession only operates from the
presidency to the vice presidency of the Re-
public of Bolivia, as well as to the presiden-
cies of the Chambers of Senators and Depu-
ties because of the impediment to continue in
functions or for the definitive absence of the
person who is in office. As for the first vice
and second presidency of the Chamber of
Deputies, the Court stated that the deputies
only replace temporarily and circumstan-
tially their president or vice president when
they are absent, but they do not take on that
position. Therefore, Deputy Margarita del
Carmen Fernández Claure never assumed
the presidency of the Chamber of Deputies
and, on the contrary, Susana Rivero issued
the Comunicación SG 0010/2019-2020 and
Resolución 062/2019-2020 in legitimate use
of her attributions.
One of the controversial aspects around this
Judgment is that the Plurinational Constitu-
tional Court took nearly twenty-two months
to resolve the appeal which was proposed in
November 2019. In the same way, the Judg-
ment was issued in a highly political context
and made references that have implications
for the current situation in Bolivia. In the
first place, it referred to the ipso facto presi-
dential succession, despite not being part of
the facts of the case or the allegations, pre-
cisely, when judicial proceedings are pend-
ing against Jeanine Áñez, who assumed the
presidency ipso facto after the resignation of
the elected authorities in 2019. In the same
way, the Judgment was pronounced after the
Prosecutor’s Office closed the case on the
alleged electoral fraud in the 2019 elections
in favor of Evo Morales and after the State
Attorney, Wilfredo Chávez, who was previ-
ously a government minister of Bolivia be-
tween 2011 and 2012, announced that there
was no electoral fraud in the 2019 elections
after five days of reviewing the acts.
IV. LOOKING AHEAD
In 2022, political and judicial processes
against the people accused of the so-called
2019 coup should continue. In this context,
the greatest challenge for justice and for the
authorities will be to guarantee judicial in-
dependence, as well as to respond to the call
of international human rights organizations
regarding due process and transparency and
avoid political persecution. Meanwhile, the
situation of the defendants who remain in
pretrial detention is pending, including for-
mer President Jeanine Áñez.
On the other hand, there is expectation in this
year for legislative and judicial measures that
will be adopted to solve the structural prob-
lems related to gender violence, especially
after the announcements of the government
and the alarming violence rates.
V. FURTHER READING
Michael Vega, ‘The rule of law in jeopardy?:
The constitutional judge against the Constitu-
tion and in favor of indefinite presidential re-
election: Bolivian case’ (2021) 32 Revista Bo-
liviana de Derecho<https://www.revista-rbd.
com/wp-content/uploads/2021/09/29._Mi-
chael_Juan_Ram%C3%83%C2%B3n_
Vega_pp._862-899.pdf> accessed 10 March
12 2022.
2021 Global Review of Constitutional Law | 41
1 OAS. Electoral integrity analysis General Elec-
tions in the Plurinational State of Bolivia: Prelim-
inary Findings. <http://www.oas.org/documents/
eng/press/Electoral-Integrity-Analysis-Boliv-
ia2019.pdf> accessed 8 March 2022.
2 OAS. Electoral integrity analysis General Elec-
tions in the Plurinational State of Bolivia: Final Re-
port. < https://www.oas.org/fpdb/press/Audit-Re-
port-EN-vFINAL.pdf> accessed 8 March 2022.
3 John Curiel and Jack R. Williams, ‘Bolivia dis-
missed its October elections as fraudulent. Our
research found no reason to suspect fraud.’
The Washington Post (Washington 27 February
2020) <https://www.washingtonpost.com/poli-
tics/2020/02/26/bolivia-dismissed-its-october-
elections-fraudulent-our-research-found-no-rea-
son-suspect-fraud/ > accessed 8 March 2022.
4 César Muñoz and José Miguel Vivanco, ‘La
justicia como revancha’ (Human Rights Watch,
22 March 2021) < https://www.hrw.org/es/
news/2021/03/22/la-justicia-como-revancha >
accessed 8 March 2022.
5 Mabel Azcui ‘Bolivia suspende a dos magis-
tradas del Constitucional que detuvieron una
ley’ El País (Cochabamba 30 July 2014) <https://
elpais.com/internacional/2014/07/30/actuali-
dad/1406733535_345999.html> accessed 24 Fre-
bruary 2022.
6 Juan del Granado. ¿Falsificaciones en el Tri-
bunal Constitucional? Los Tiempos (Cochabam-
ba, 25 April 2021) <https://www.oas.org/fpdb/
press/Audit-Report-EN-vFINAL.pdf > accessed
24 Frebruary 2022.
7 Marco Chuquimia ‘Sentencia 0012 del TCP
tiene tres decisiones y ministro de Justicia dice
que es un proyecto’ El Deber (Santa Cruz de la Si-
erra, 15 May 2021) <https://eldeber.com.bo/pais/
sentencia-0012-del-tcp-tiene-tres-decisiones-
y-ministro-de-justicia-dice-que-es-un-proyec-
to_232084> accesed 6 March 2021.
8 Vivian Ramírez. ‘Sentencia TCP sobre Juicios
en Rebeldía. Acciones del TCP y del Ministerio
de Justicia que socavan el Estado de Derecho’
(Fundación Observatorio de Derechos Humanos
y Justicia, 13 May 2021) <http://ddhhyjusticia.
org/2021/05/13/sentencia-tcp-sobre-juicios-en-
rebeldia-acciones-del-tcp-y-del-ministerio-de-
justicia-que-socavan-el-estado-de-derecho/> ac-
cesed 8 March 2021.
9 Página Siete Digital. ‘TCP se ampara en
su autonomía y elude responder sobre el
«desaparecido» fallo de los juicios en rebeldía’
<https://www.paginasiete.bo/nacional/2021/9/30/
tcp-se-ampara-en-su-autonomia-elude-responder-
sobre-el-desaparecido-fallo-de-los-juicios-en-
rebeldia-310726.html> accesed March 2021.
10 Tribunal Constitucional Plurinacional, Judg-
ment 0052/202, Court file 31743-2019-64-RDN,
Sucre, September, 29 2021

42 | I•CONnect
 Bosnia and Herzegovina
Maja Sahadžić
Visiting Professor and Researcher/Senior Research Fellow
University of Antwerp/Law Institute in B&H
I. INTRODUCTION
In 2021, Bosnia and Herzegovina (B&H) ex-
perienced a major political crisis as the Serb
member of the Presidency, Milorad Dodik,
intensified rhetoric on the independence of
the Republic of Srpska (RS) and pushed for
BOSNIA AND HERZEGOVINA withdrawing from state-level1 institutions
such as armed forces, the judiciary, and
tax authorities. The European Union (EU)
grappled to maintain the delicate status quo
captured in the 1995 General Framework
Agreement for Peace in B&H (Dayton Peace
Agreement) amidst increasing polarization
among the three constituent peoples (the
Bosniaks, Croats, and Serbs). The crisis also
resulted in a request to the Constitutional
Court of B&H to initiate a procedure to de-
termine the temporary incapacity of Milorad
Dodik regarding the functions he performs.
2021 was also the year of further political
divisions grounded in ethnic differences.
Wearing a beard on duty in uniform in the
Armed Forces as well as the permanent res-
idence of citizens of B&H has been heavily
politicized. As it proved to be controversial,
it has resulted in cases being brought before
the Constitutional Court of B&H.
II. MAJOR CONSTITUTIONAL
DEVELOPMENTS
In 2021, B&H experienced one of the biggest
political and constitutional crises ever since
the Dayton Peace Agreement has been signed
in 1995. In October 2021, the leadership of
the RS (RS), led by Milorad Dodik, the Serb
member of the Presidency of B&H, present-
ed a critical document that laid the ground-
work for (1) the declaration of independence
of the RS if the powers that have been trans-
ferred to the state level are not returned to the
RS within six months (such as Armed Forces
of B&H, the High Judicial and Prosecutorial
Council of B&H, the Court of B&H, and the
Indirect Taxation Authority), (2) abolishing
the Intelligence-Security Agency of B&H
and withdrawing the consent for the estab-
lishment of the State Investigation and Pro-
tection Agency of B&H, (3) forming similar
and additional agencies in the RS within a
month, and (4) abolishing a large number
of decisions of the High Representative of
B&H in the National Assembly of the RS.
The state level in B&H has narrow exclusive
powers while the Entities have vast residual
powers. Based on constitutional provisions,
the state level can assume additional powers
over the matters necessary to preserve the
sovereignty, territorial integrity, political in-
dependence, and international personality of
B&H respecting the distribution of powers
and mutual agreement of the Entities. Excep-
tionally, in 2006 an agreement between the
Entities was reached, establishing unified
armed forces at the state level. Importantly,
the Entities, especially the RS, have not been
driven to transfer the powers to the state lev-
el. Hence, the High Representative of B&H
initiated the transfer of powers by imposing
several laws regulating areas contested by
Milorad Dodik. Over time, this has caused
resentment in the RS. What triggered the cri-
sis last year was the introduction of a new
law on the denial of genocide by the High
Representative. This is closely related to the
fact that many officials in the RS continue to
reject the evidence that the Srebrenica geno-
cide happened. One of the most vocal offi-
2021 Global Review of Constitutional Law | 43
cials is Milorad Dodik. The announcement
of the law incited him to hold a press con-
ference and declare that the law will never
be accepted in the RS. The document Milo-
rad Dodik presented was met with vehement
criticism within and outside of B&H as it put
at stake fragile peace brokered in Dayton. It
also resulted in a case before the Constitu-
tional Court of B&H in which the Minister
of the Ministry of Interior of the Federation
of B&H initiated a procedure to determine
the temporary incapacity of Milorad Dodik
regarding the functions he performs.
Before erupting, the brewing tensions in
B&H confirmed that the country still main-
tains a fragile and unbearable status quo
in which divergent ethnopolitical posi-
tions have been used as leverage for polit-
ical gains. For example, the case before the
Constitutional Court of B&H which tackled
wearing a beard in the Armed Forces divid-
ed the public in B&H along ethnic lines. The
public discussion revolved around question-
ing whether there should be an exception
based on religious beliefs for wearing a
beard or whether wearing a beard should be a
personal choice. The discussion on religious
beliefs extended to the discussion on beards
worn by Wahhabis and Chetniks (implying
the link with the Bosniaks and Serbs) as well
as to hijabs. The Constitutional Court was
forced to issue a clarifying statement that, in
the specific case, the Court decided only and
exclusively on the right of the soldiers of the
Armed Forces to wear a beard and that the
Court did not decide on the issue of wear-
ing a hijab. The Court also made it clear that
the decision that was made was not partial
in the way that another decision is expected
in the case. Another case on the permanent
and temporary residence has also resulted in
public discussion and division as it appealed
to the returnee population in B&H. Unfor-
tunately, more than twenty years after the
Bosnian War from 1992 to 1995, B&H still
features a considerable number of internally
displaced persons and refugees. The present
law on residence requires proof of a valid
basis for residence such as proof of owner-
ship or possession, a lease or tenancy agree-
ment, etc. The fact that some returnees have
not been able to rebuild their housing units
for objective reasons precluded them from
44 | I•CONnect
registering their pre-war places of residence.
Their return, however, is closely linked to
the implementation of Annex 7 of the Day-
ton Peace Agreement regulating the return
of refugees and displaced persons in B&H.2
Some state officials presented that the con-
tested provisions are an attempt to legalize
the demographic changes created during the
conflict, especially in Srebrenica which, yet
again, divided the political establishment
and public along the ethnic lines. Interest-
ingly, residence registrations in Srebrenica
increase before every election. In 2014, the
Constitutional Court of B&H heard a case
U-5/15 that argued that the law on residence
puts returnees at a significant disadvantage
however, in 2021, the court was faced with
yet another merely identical case on the
same issue.
III. CONSTITUTIONAL CASES
1. U-11/21: Temporary incapacity of the
member of the Presidency of B&H
This case aimed at initiating a procedure for
the determination of temporary incapaci-
ty of a member of the Presidency of B&H.
The case emerged amidst previously de-
scribed growing tensions posed by Milorad
Dodik, the Serb member of the Presidency,
who intensified independence claims of the
RS and posed threats of abolishing or with-
drawing from several state-level institutions
and agencies. The request was founded on
Article 8 Paragraph 8 of the Election Law
of B&H indicating the competence of the
Constitutional Court of B&H to decide that
a member of the Presidency is temporarily
incapable of performing their function.
The appellant (Minister of the Ministry of
the Interior of the Federation of B&H) filed
a request in which they urged the Constitu-
tional Court to initiate a procedure for the
determination of temporary incapacity of
Milorad Dodik to perform the function he
holds as a member of the Presidency. The
appellant asserted that Milorad Dodik was
blocking the functioning of the state-level
institutions by openly derogating the com-
petences of the state level in B&H. The ap-
pellant also alleged that Milorad Dodik en-
dangered peace, coexistence, and political
and economic stability of the country and
the Dayton Peace Agreement by announc-
ing the withdrawal from the Armed Forces
of B&H, the State Investigation and Protec-
tion Agency, the Intelligence and Security
Agency, the High Judicial and Prosecutorial
Council, the Border Police, and the Indirect
Taxation Authority.
The Constitutional Court evaluated whether
the competences given by the Constitution of
B&H allow the Constitutional Court to accept
the competences which are not prescribed by
the Constitution but are prescribed by the acts
of lower legal forces than the Constitution.
The Constitutional Court referred to its earli-
er case law and reiterated that it must always
adhere to the text of the Constitution of B&H,
which in the present case does not allow for a
wider interpretation of its jurisdiction. Also,
the Constitutional Court noted that the princi-
ple of independence of the Court, though it is
not explicitly enunciated in the Constitution
of B&H, represents a general principle that
must be complied with even when not explic-
itly enunciated in the constitutional text since
it is inseparable from the principle of the rule
of law. Therefore, the Constitutional Court
points out that no law can “transfer” any type
of jurisdiction to the Constitutional Court,
because such a possibility does not follow
from the text of the Constitution of B&H. The
Court concluded that, in this particular case,
it was not competent to decide on the tempo-
rary incapacity of a member of the Presiden-
cy of B&H, because such jurisdiction is not
prescribed by the Constitution of B&H. The
request was rejected as inadmissible.
2. U-9/21: Wearing a beard on duty in uni-
form
This case challenged the constitutionality of
the Rules of Service of the Armed Force of
B&H. Paragraph (2) and Paragraph (4) of
Article 12 of the Rules define that wearing
a beard in Armed Forces shall be permitted
only to the religious servants, but the beard
must be well-groomed while all military per-
sonnel must be always shaved when on duty
in uniform.
The appellant (Chairman of the House of
Peoples of the Parliamentary Assembly of
B&H) requested to render ineffective the
abovementioned provisions. The appellant
asserted that the provisions are not follow-
ing (1) the Constitution of B&H regarding
the right to private and family life, home,
and correspondence and freedom of thought,
conscience, and religion and (2) the Europe-
an Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR)
regarding the right to respect for private and
family life and freedom of thought, con-
science, and religion. The appellant argued
that the Standard Operating Procedure on
Wearing Unique Uniform and Insignia in
the Armed Forces of B&H allowed wear-
ing a beard to all members of Armed Forc-
es under defined conditions while the Rules
banned it except for the religious servants.
The appellant claimed that personal choic-
es concerning the desired appearance relate
to the expression of their personality and
therefore fall within the notion of private life
as established in the case law of the Euro-
pean Court of Human Rights (ECtHR) that
have taken the position in their case law that
wearing a beard is an aspect of private life
(Biržietis v. Lithuania). The appellant also
argued that the issue is linked to the wear-
ing of religious symbols or clothing by an
individual’s faith and their desire to express
their faith is a manifestation of their religious
belief (such as a wish of a Muslim male to
wear a skullcap). According to the appellant,
it is not clear what is the purpose and inter-
est of imposing the ban on beard concerning
all members of the Armed Forces except the
religious servants. Also, the appellant did
not find convincing the fact that a beard in-
terferes with the proper use of a protective
mask since the appropriate analysis on that
issue does not exist and because the wearing
of a beard is permitted in many armies which
are using the same or similar protective
equipment. This is especially given the fact
that there are opinions of experts that wear-
ing a beard is not incompatible with wearing
a protective (gas) mask.
The Constitutional Court emphasized that
the word “only” appears in the Bosnian text
of the Rules and as such appears to restrict
the rights exclusively to religious servants.
The Court noticed that, although essentially
identical, the Rules in the Serbian and Cro-
atian languages does not prescribe the word
“only” and reads as follows: “Wearing a
beard shall be permitted to the religious ser-
vants, but the beard must be well-groomed.”
Here, the substance of the cited provision
does not imply the conclusion that that right
is reserved exclusively for religious servants,
as in the text of the Rules in Bosnian. In
evaluating the case, the Constitutional Court
followed its case law in the case U-8/17 in
which it considered wearing a beard while in
uniform on duty regarding the Border Police.
The court held that a beard, as part of the
body and physical appearance of a person,
is a form of expression of one’s religion only
where the beard is worn for religious rea-
sons, but it is also an aspect of one’s private
life, as it is not associated only with religious
symbols. Hence, the Court prescribed that a
well-groomed beard and mustache are now
permitted, and that the limitation was arbi-
trary and irrelevant. The Court pointed out
that although understandable that military
personnel of the armed forces of any coun-
try in the world ought to look uniform and
orderly, this does not explain why wearing a
neat, short, and well-groomed beard would
violate that general objective. The Constitu-
tional Court agreed that it is understandable
that in military service there are restrictions
on certain rights and freedoms, but also
that any restriction must pursue legitimate
aims. Finally, the Constitutional Court con-
cluded that the absolute ban on soldiers of
the Armed Forces to wear a beard when on
duty in uniform violates the right to respect
for private life and the right to freedom of
religion safeguarded by the Constitution of
B&H and the ECHR.
3. U-1/21: Permanent and temporary resi-
dence of citizens
This case challenged the constitutionality of
the Law on Permanent and Temporary Res-
idence of Citizens of B&H (the Law). The
Article 8 Paragraphs 2, 3, 4, 5 and 6, Article
8a and Article 32 Paragraph 3 Subparagraph
d) define that in the procedure of registration
of residence and residential address, citizens
are obliged to enclose proof that they have a
valid basis for residence at the address where
they register, such as proof of ownership or
co-ownership or possession, a certified lease
agreement or a certified tenancy agreement,
or confirmation that a dispute over owner-
ship is being conducted before the compe-
tent authority.
The appellant (Member of the Presidency of
B&H) requested the constitutional review of
the provisions of the Law and the Constitu-
tion of B&H. The appellant alleged that the
above-mentioned provisions are not follow-
ing (1) the Constitution of B&H regarding
the right to freedom movement and resi-
dence, (2) the ECHR regarding the right of
residence, (3) the International Covenant on
Civil and Political Rights (ICCPR) regard-
ing the right to residence and freedom of
movement, and (4) Annex 7 of the General
Framework Agreement for Peace in B&H.
The appellant argued that the provisions
resulted in a significant amount of people
who do not meet rather restrictive criteria
for the registration of residence and residen-
tial address. The appellant considered “valid
grounds” and “valid evidence” for register-
ing and acquiring the right to residence a
precedent in standardizing this type of right
as it is restrictive, conditional, and exclusive
because: (1) particularly vulnerable groups,
displaced persons and returnees, members
of the Roma national minority are especially
affected as they cannot exercise the right to
register residence according to the criteria
of truthfulness, accuracy, and intention of
permanent residence – especially given the
real social, property, historical, traditional,
economic, social, and other circumstances
that legislators ignored, (2) the restriction of
registering residence restricts the possibility
of enjoying other rights and freedoms, and
(3) by enacting the contested provisions the
previously acquired rights which were valid
were denied.
The appellant argued that prescribing certain
conditions such as the right of ownership of
residential real estate or the existence of a
lease agreement may appear only as a miti-
gating and referring circumstance, and not as
a decisive circumstance to be fulfilled before-
hand, as a condition on which the exercise of
the right to residence and formal registration
2021 Global Review of Constitutional Law | 45
of residence crucially depends. The appellant
pointed out that this especially concerns the
returnees or persons whose property was de-
stroyed during the war and who, for objective
reasons (for example, they were not allocat-
ed funds for reconstruction) and due to eth-
nic cleansing, failed to rebuild their housing
units. According to Annex 7 of the Dayton
Peace Agreement, this should not have been
an obstacle to registration at pre-war address-
es of residence (this caused, for example, nu-
merous cases of annulment of residence from
Srebrenica but also in other places). Also, the
appellant alleged that it is well-known that
the citizens of the Roma national minority
in many cases do not have personal identi-
fication documents and in a significant num-
ber of cases they are not even registered, so
they are not able to enjoy numerous rights,
such as the right to health insurance (for
example, there are particularly vulnerable
groups within this population, mothers and
pregnant women that bear the most serious
consequences). Further on, in many cases,
the factual situation regarding the disorder of
land registers, unresolved inheritance legal
relations, traditional circumstances of “com-
munity life”, housing facilities are registered
on deceased relatives because of which many
citizens are brought into a position of not be-
ing able to register their residence. Finally,
the applicant pointed to a huge number of
illegally built facilities. Based on this, the ap-
pellant argued that the freedom of movement
does not only include the possibility of per-
manent or temporary residence, meaning the
change of location in a purely physical sense
within a certain space/state or outside, but it
also implies the possibility of continuity of
unhindered enjoyment of all rights and fun-
damental freedoms of citizens guaranteed by
the Constitution.
The Constitutional Court recalled that in
Decision U-5/15 it ruled on the constitu-
tionality of the provisions of the same Law,
which were again challenged by the present
request, and decided that the challenged pro-
visions were constitutional. The Court still
examined the provisions which have been
challenged again, given the allegations were
similar but not the same. The Constitutional
Court stated that the legislator, in prescrib-
ing evidence that can be a valid legal basis
46 | I•CONnect
for registration of residence, also prescribed
a wide range of evidence that the Constitu-
tional Court considers to be reasonable and
objective. For example, the legislator left the
possibility for persons who are conducting a
dispute over ownership or who have initiat-
ed the legalization or registration procedure
to use certificates of initiated procedure as
evidence for registration of residence. Also,
the Court held that possession is the de fac-
to authority over things so the registration in
the land register is not required, while mar-
ital and extramarital relationships, kinship,
and adoption allows registration of residence
at the address of already registered spouse,
relative, etc. The Court stated that the “abuse
of rights” can be far greater if there is a pos-
sibility for residence registration without
any proof than when compared to the situa-
tion where certain evidence is required. The
Court also noted that in its previous case-law
it interpreted the case encompassing the prin-
ciple of the rule of law which requires that a
legal norm must be (1) adequately accessible
to the individuals to whom it applies, and it
must be (2) foreseeable, meaning that it must
be formulated with sufficient precision that
individuals could actually and specifically
know their rights and obligations to a de-
gree that is reasonable in the circumstances,
to regulate their conduct accordingly. How-
ever, the law does not have to be perfect to
be compatible with the Constitution. This
means that it cannot be challenged in terms
of whether it is the best possible solution or
whether a different solution would be fair-
er or better. Finally, the Court held that the
legislator in no way called into question the
right of any citizen of B&H to freely choose
a place of residence, nor did it restrict their
freedom of movement, especially referring
to allegations of discrimination against re-
turnees (for example, Bosniaks and Croats
who intended to return to the territory of
the RS). The Constitutional Court noted that
the members of the Roma national minority
have the same rights to register residence as
other citizens of B&H and under the same
conditions. The fact that members of the
Roma national minority in many cases are
not registered indisputably poses a problem
that the State should take care of. The Court
concluded that the provisions of the Law are
compatible with the Constitution of B&H
concerning the right to liberty of movement
and residence as they are prescribed in the
public interest and pursue a legitimate aim.
IV. LOOKING AHEAD
Just like in the previous years, in 2021, the
Constitutional Court continued to hear nu-
merous cases where it ruled on: (1) a viola-
tion of the right to a fair trial concerning the
adoption of a decision within a reasonable
time limit; and (2) a violation of the right to
effective legal remedies. It is expected that
in 2022 the Court will continue to be over-
burdened with cases that require its consid-
eration of whether constitutional rights (the
right to a fair trial, the right of access to
court, the right to an effective legal remedy,
etc.) have been violated or disregarded, and
whether the law of the land was applied in
either an arbitrary or discriminatory manner.
However, one long-term issue which gained
momentum recently is an election reform
needed to address several ECtHR judgments
(Sejdić and Finci, Zornić, Pilav, Šlaku, and
Pudarić). This issue results in volatile dis-
putes between the Bosniaks and Croats who
prefer different solutions, especially on the
election of presidential candidates. Since
2022 is the election year, it is expected that
the Constitutional Court of B&H will be un-
der pressure to evaluate electoral rights.
V. FURTHER READING
Sahadžić M, “Subnational Constitutionalism
in Bosnia and Herzegovina: Towering
Sub-National Autonomy and a Loose
Clamp of the Central Level to All Intents
and Purposes” In: Aroney N et al. (eds.),
Handbook on Subnational Constitutions and
Constitutionalism (Routledge 2021: 80-95).
Sahadžić, M, “Constitutional Asymmetry
and Equality in Multinational Systems with
Federal Arrangements” In: Belser EM and
Beachler T (eds.), The Principle of Equality
in Diverse States – Reconciling Autonomy
with Equal Rights and Opportunities (Brill
2021: 36-61).