Strasbourg, 7 March 2000

Report on local and regional democracy in Bosnia and Herzegovina

(candidate country for accession to the Council of Europe)
Adopted by the Standing Committee on 2 March 2000

Rapporteurs: Claude HAEGI (Switzerland) and Gianfranco MARTINI (Italy)

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SUMMARY

This document contains the final report on local and regional democracy in Bosnia and Herzegovina, comprising an introduction, four numbered parts and conclusions and recommendations.

The introduction discusses the working meetings and the preliminary reports.

The first part of the report points out the weakness of the common institutions of Bosnia and Herzegovina from the point of view of local and regional democracy. This weakness stems from the fact that the Constitution says nothing on the subject, making it difficult to introduce constitutional amendments. This explains the lack of a law on local and regional democracy at central level and the need to study the situations in the Federation of Bosnia and Herzegovina and the Republika Srpska separately (see part I).

The next two parts of the report describe the state of the legislation on local and regional democracy in the two Entities. In the case of the Federation of Bosnia and Herzegovina, the report draws attention to the existence of the cantons as an embodiment of regional democracy and analyses the guarantees of local democracy afforded under the Federation's and the cantons' laws on the subject (see part II). In the case of the Republika Srpska, the report points out the lack of a regional tier of government and the problems posed by successive bills on local self-government and the law recently passed (see part III).

The fourth part of the report makes a number of concluding observations on the functioning of local and regional democracy in Bosnia and Herzegovina and, given the legislation's deceptively positive aspects, warns against the persistence of ethnic problems and the strong hold of the country's party system, and more generally the special problems confronting a State which is a form of international protectorate (see part IV).

The conclusions and recommendations sum up the problems brought to light by a comparison of the current situation in Bosnia and Herzegovina with the requirements of the European Charter of Local Self-Government and the draft European Charter of Regional Self-Government and list the measures to be taken by the national and cantonal authorities to bring the situation into line with Council of Europe standards.

INTRODUCTION

This report has been prepared following four visits to Bosnia and Herzegovina and a colloquy held there by the Congress of Local and Regional Authorities of the Council of Europe (see Appendix).

Details of matters discussed at the working meetings, as well as the experts' observations and assessments concerning the social, political and legal situation in Bosnia and Herzegovina, are to be found in the successive reports drawn up following the above visits. The Congress's experts also prepared a legal appraisal of the local self-government laws of eight cantons of the Federation of Bosnia and Herzegovina and an opinion on the Republika Srpska's bill on local self-government. The draft of the final report is primarily based on the above documents.

A provisional draft of the report (prepared in April 1999) was submitted to the Bureau for preliminary examination, and copies were distributed during the visits to a number of people with whom the Congress is in contact in Bosnia and Herzegovina, who also submitted comments.

I. Weakness of the common institutions of Bosnia and Herzegovina

1. The complex structure of the State and the Entities in Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina is part of the Dayton Agreements (1995). According to the Venice Commission's criteria, Bosnia and Herzegovina qualifies as a federal State consisting of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska. Under the Constitution, the Entities are constituent parts of Bosnia and Herzegovina, and rights and powers are shared between the institutions of Bosnia and Herzegovina and of the Entities in accordance with the common principles of the federal State.

Bosnia and Herzegovina is nevertheless a very strange federation, in that any powers not expressly assigned to the federal level belong to the Entities and the State depends on the Entities for its finances. What might even be termed excessive concern to guarantee multi-ethnicity has led to a multiplicity of rules designed to ensure the representation of the country's constituent ethnic groups. The risk is that the situation may not be conducive to the exercise of effective public authority, since a number of fundamental questions concerning the nature of the State of Bosnia and Herzegovina are left unanswered.

The Federation of Bosnia and Herzegovina is a federated Entity which itself has a federal structure, grouping together ten cantons. The Constitution of the Federation is part of the Washington agreements signed in 1994, but it was amended in 1996 to bring it into line with the Constitution of Bosnia and Herzegovina.

The other Entity is the Republika Srpska, whose Constitution was also amended in 1996, although no final solution to the problems of compatibility with the Constitution of Bosnia and Herzegovina was achieved. The Venice Commission considers, on the basis of certain elements of its Constitution, that the Republika Srpska has the structure of an independent State.

The lack of co-ordination between the State of Bosnia and Herzegovina and its constituent Entities weakens the central authority. This is the primary finding that might weight the balance against the country's becoming a member of the Council of Europe. It is moreover the principal argument advanced by Mr Franz Matscher and Mr Marc Vila Amigo¹ in their report to the Parliamentary Assembly of the Council of Europe. It should nevertheless be said that the same arguments could lead to more favourable conclusions on the basis of the criteria applied by Mr Christos Giakoumopoulos² and Mr Omer Ibrahimagic³ in their respective reports.

The institutional structure of Bosnia and Herzegovina and its Entities is extremely complex, since the democratic systems which the country is attempting to establish are to a large extent being shaped by the specific requirements of multi-ethnicity.

For instance, Bosnia and Herzegovina has a collegiate presidency consisting of three members: one Bosniac, one Croat and one Serb. The Parliamentary Assembly has two chambers: the House of Representatives and the House of Peoples, which includes five representatives of each constituent people (five Serbs appointed by the National Assembly of the Republika Srpska, and five Bosniacs and five Croats, all designated by the House of Peoples of the Federation). The government is answerable to the House of Representatives, as is normal in a parliamentary democracy, but no more than two-thirds of all ministers may originate from the territory of either entity.

The presidency of the Federation of Bosnia and Herzegovina is held alternately by a Bosniac and a Croat. The Federation's parliament also has two chambers: the House of Representatives and the House of Peoples, the latter consisting of 75 representatives designated by the cantonal legislatures. The government is answerable to parliament.

The Republika Srpska merely has a President and a Vice-President. It has a single-chamber parliament, the National Assembly.

2. The lack of common standards in the Constitution of Bosnia and Herzegovina in matters of local and regional democracy

In view of the situation described above, it is not surprising that the Constitution of Bosnia and Herzegovina makes no mention of local self-government or of the existence of regions. Since the Constitution says nothing about such matters, it may be inferred that they come within the jurisdiction of the Entities, given that all powers not expressly assigned to the institutions of Bosnia and Herzegovina under the Constitution are vested in the Entities (Article III, 3).

This cannot in itself be deemed contrary to the European Charter of Local Self-Government or the draft European Charter of Regional Self Government. These texts provide that the principles of local and regional self-government shall be recognised in the Constitution "where practicable" (Article 2). This provision might be construed as permitting the distribution of powers in matters of local and regional democracy between the State and the Entities.

However, although it is acceptable that the State's Constitution should say nothing about the principle of local and regional self-government, that does not exempt the Entities from giving guidelines on such matters in their own Constitutions. Authority in matters of local and regional self-government is vested in the Entities (the Federation and the Republic), which must therefore ensure compliance with the relevant European principles and standards through their Constitutions and their respective legislation. The system is admittedly complex, but that does not mean that it may dispense with such important principles. What it does entail is a separate analysis of the laws governing local and regional self-government in the Federation of Bosnia and Herzegovina and in the Republika Srpska.

II. Legislation of the Federation of Bosnia and Herzegovina RELATING TO local and regional democracy

3. The cantons of the Federation as an embodiment of regional democracy

The Federation of Bosnia and Herzegovina consists of ten cantons: three are predominantly Croat (Posavino, Western Herzegovina, Livno), two mixed (Herzegovina-Neretva-Mostar, Tuzla-Podrinje) and the remaining five mainly Bosniac (Bihac, Zenica-Doboj, Gorazde, Central Bosnia, Sarajevo).

Each canton has its own symbol, flag and anthem. Cantons may enter into international obligations with the approval of the Federation Parliament. Section III of the Constitution of the Federation determines which powers are vested solely in the Federation and which are shared between the Federation and the cantons. All powers not expressly allocated to the Federation are deemed to belong to the cantons. The Venice Commission noted a number of gaps in the (exhaustive) list of the Federation's powers, from which criminal law, civil law, labour and social security law and environment law are missing. This shows the importance of the cantons within the Federation. The cantons have authority for the following matters, in particular (Constitution of the Federation, section III, Article 4): policing, education, cultural policy, housing, cantonal public services, spatial planning and land use, promoting economic activity, local energy production, cantonal radio and television, social affairs, tourism, cantonal taxation.

The cantons were established primarily according to political criteria, with the aim of permitting the co-existence of Bosniac and Croat communities within the Federation. Clearly, neither administrative efficiency nor traditional territorial boundaries were taken into consideration. It might therefore be said that there are too many cantons for the Federation's small area.

With regard to inter-cantonal relations, section V, Article 3 of the Constitution of the Federation provides for the establishment of "Councils of Cantons" representing cantons of the Federation having the same ethnic majority (Bosniac or Croat) in order to deal with matters of common interest. Relations have also been established outside this ethnic framework.

Within the cantons, public authority is exercised according to parliamentary principles: the cantonal legislature is elected by universal suffrage, and the executive is in turn appointed by and answerable to the legislature (Constitution of the Federation, section V, Articles 5-10).

The above-mentioned provisions make it possible to regard the cantons as constituent elements of regional democracy, as defined by the draft European Charter of Regional Self-Government.

4. Guarantees of local democracy under the Federation's law

The Constitution of the Federation of Bosnia and Herzegovina contains some very basic provisions on local government (section VI, Articles 1 to 6). It does not define local self-government, but establishes a number of what may be regarded as essential rules. These include Article 3, establishing Municipal Governing Councils elected by universal suffrage, Article 4, which delimits their powers, and Articles 5 and 6, which provide for a municipal executive appointed by the council.

A law of the Federation passed in 1995 lays the foundations of local self-government. This law (articles 3-4) contains a legal definition of local self-government, in line with Article 3 of the European Charter of Local Self-Government. At the same time, it lists those matters which come within the sole jurisdiction of the municipalities (article 8), defines the nature which legal supervision of municipalities may take, always following procedures defined by law (article 13), and specifies municipalities' financial resources (article 14) and other guarantees of local autonomy.

In any case, within the Federation the exercise of public authority is highly decentralised, since it is the cantons which have jurisdiction to legislate in the sphere of local self-government. The Federation can do no more than encourage the cantons to harmonise their constitutional and statutory provisions concerning the municipalities. The Ministry of Justice has, for instance, distributed a "model" law on municipalities, in line with the European Charter of Local Self-Government, which it has asked the cantons to incorporate into their legislation.

5. Problems with local democracy arising from cantonal law

The Constitutions of the cantons of the Federation of Bosnia and Herzegovina contain detailed provisions on local democracy, establishing the principle of municipal autonomy, laying down the main rules governing local elections, defining the functions of the Municipal Governing Council, of its President and of the local mayor, and guaranteeing the status of local elected representatives. These are to be found in section VI, Articles 1 to 13 of the Constitution of the Canton of Bihac; Articles 55 to 69 of the Constitution of the Canton of Posavina; Articles 64 to 83 of the Constitution of the Canton of Tuzla-Podrinje; Articles 67 to 82 of the Constitution of the Canton of Zenica-Doboj; Articles 51 to 56 of the Constitution of the Canton of Gorazde; Articles 69 to 83 of the Constitution of the Canton of Central Bosnia; Articles 65 to 78 of the Constitution of the Canton of Herzegovina-Neretva-Mostar; Articles 56 to 70 of the Constitution of the Canton of Western Herzegovina; Articles 35 to 37 of the Constitution of the Canton of Sarajevo; and Articles 55 to 69 of the Constitution of the Canton of Livno.

From 1997 to 1999 eight cantons (Bihac, Tuzla-Podrinje, Zenica-Doboj, Gorazde, Central Bosnia, Western Herzegovina, Sarajevo and Livno) passed laws on local self-government. On the basis of the expert appraisal of this legislation carried out within the Congress, we can confirm that these laws comply with the principles of the European Charter of Local Self-Government. They contain general provisions on local democracy, provisions on means of direct citizen participation, rules on local authority bodies, local finance and municipal property, and procedural rules governing the decision-making processes and safeguarding rights of citizens to benefit fully from the advantages of local self-government. The Municipal Governing Council, which is elected by universal suffrage in all cases, appoints a mayor, who is answerable to it. Local authorities have direct responsibility for a significant share of public affairs (spatial planning, basic health services, education, and so on). It has also been noted that citizens are given a direct say in the management of public affairs through institutions such as the district councils or by referendum. The laws of the cantons of Sarajevo, Tuzla-Podrinje and Western Herzegovina provide for the existence, alongside the municipal authorities, of the city as a unity of local self-government, a form of urban area establishing territorial and economic links between municipalities.

The passing of cantonal legislation which is on the whole compatible with the principles of the European Charter of Local Self-Government is a plus, but should not cause us to overlook a number of problems that came to light in the course of the expert appraisal. For instance, the supervision exercised by the cantonal authorities over the municipalities sometimes goes beyond the limits of the proportionality requirement of Article 8 of the Charter. Such supervision affects either local authority decisions, which may be suspended on the ground that they are unlawful without the local authority concerned being allowed a reasonable time within which to react (this is the case in the cantons of Tuzla-Podrinje, Zenica-Doboj, Gorazde, Western Herzegovina, Sarajevo and Livno), or municipal officials themselves, who may be removed from office by decision of the cantonal authority (this is permitted under the legislation of the cantons of Zenica-Doboj, Central Bosnia, Western Herzegovina, Sarajevo and Livno).

It should also be pointed out that none of the cantonal laws on local self-government makes provision for municipalities to enjoy a right of recourse to a judicial remedy, susceptible of reinforcing their autonomy, as required by Article 11 of the European Charter of Local Self-Government. The fact that local authorities' powers are not fully guaranteed by these laws constitutes a breach of Article 4.4 of the Charter. The lack of legal guarantees in this area results from the provisions of the cantonal laws making local authorities subject to a number of restrictions, sometimes contained in other legislation. Similarly, in far too many instances the cantonal laws on local self-government relegate the regulation of certain aspects of local autonomy to the municipalities' statutes, which in certain cases are adopted subject to a review mechanism which can undermine local self-government.

However, the greatest cause for concern is the cantons of Posavina and Herzegovina-Neretva-Mostar, which have not yet managed to pass laws on local self-government. These cantons must naturally be encouraged to enact legislation in line with the European Charter of Local Self-Government as quickly as possible.

III. Legislation of the Republika Srpska RELATING TO local and regional democracy

6. Deficiencies resulting from the law on territorial organisation

The Republika Srpska has no intermediate tier of government between its central institutions and the municipalities. Article 11 of the law on territorial organisation and local self-government of 1994, as amended in 1996 and 1997, provides for the territory's division into 64 municipalities and two cities governed by special laws (Serb Sarajevo, comprising six municipalities, and Banja Luka, part of the municipality of the same name). Articles 4 to 9 of this law also regulate the urban districts which may be recognised within municipalities; these are administrative sub-units of municipalities that do not qualify as local authorities in their own right.

7. The work done to arrive at the new law on local self-government

A) The law of 1994

The rules on local self-government applicable under the law of 1994 raised serious doubts as to their conformity with the principles of the European Charter of Local Self-Government. Central government's general powers to establish, name and modify urban districts (Articles 7 and 8) could be deemed to be at variance with Article 6.1 of the Charter, which provides: "local authorities shall be able to determine their own internal administrative structures." Although described as means of monitoring the lawfulness of local authority decisions, the government's powers to take measures in the place of local authorities, to dissolve local authorities and to remove local officials from office (Articles 26 and 35) did not appear to comply with the proportionality requirement of Article 8.3 of the Charter, given that the municipalities concerned were deprived of all possibility of reconsidering or reversing a decision and all forms of preliminary or subsequent judicial review were ruled out.

This law also posed problems in that it disregarded many aspects of local self-government and hence did not afford the guarantees of autonomy required under the European Charter of Local Self-Government. It was possible to assume that many of these guarantees might have been written into the statutes of the municipalities, but that solution might in itself have undermined their autonomy, which should be secured within generally applicable minimum limits either by law or by the Constitution, in accordance with Articles 2 and 3.1 of the Charter.

The serious problems encountered with the law on territorial organisation and local self-government prompted the Republika Srpska to prepare a new law. However, the successive bills tabled raised new difficulties, and the law finally passed in November 1999 can be seen to be the outcome of an attempt to solve these. This law will enter into force after the local elections scheduled to take place in April 2000, from which moment Articles 14 to 37 of the law of 1994 will be deemed to have been repealed.

B) The bill of January 1999

In January 1999 the Ministry of Public Administration prepared a bill on territorial organisation, providing for the creation of eight counties. However, the terms of a local self-government bill prepared and revised during the same month by the same ministry, which determined how the counties were to be administered, failed to meet the standards of either local or regional self-government: the county council was to be a second-tier representative body of local elected officials (Article 83); the county's chief executive officer was to be appointed by the government acting on a proposal from the council (Article 86); the county's administrative organisation was to be subject to government approval (Article 87); and, lastly, the counties were to be completely dependent on the government in financial matters (Article 92). These parts of the bill could be seen to be incompatible with the European Charter of Local Self-Government, and the question also arose whether the counties to be established under the new legislation could be regarded as genuine autonomous local authorities or were not rather mere administratively decentralised government agencies (similar doubts could have been raised on comparing the bill with the draft European Charter of Regional Self-Government).

As regards the municipalities, the local-self government bill of January 1999 appeared to satisfy the general requirements of the European Charter, but nevertheless left room for considerable improvement. The fact that the bill failed to define the powers conferred on municipalities (Article 6) seemed to contravene the requirement that local authorities be allowed "to regulate and manage a substantial share of public affairs", set forth in Article 3.1 of the Charter. The government's right to appoint a commissioner to manage a municipality (Article 28) seemed to be contrary to the principle that local self-government should be exercised by "councils or assemblies composed of members freely elected" (Article 3.2 of the Charter). The government's powers to settle disputes over jurisdiction arising with municipal authorities (Article 35) likewise ran counter to the Charter requirement that "powers given to local authorities shall normally be full and exclusive" (Article 4.4. of the Charter). The entire fifth chapter of the bill (Articles 93 to 101), governing the relationship between central government and local authorities, which permitted the authorities of the Republic to interfere with the decisions and powers of the municipalities, breached the principles of local self-government laid down in the European Charter.

C) The bill of October 1999

The second local self-government bill of October 1999 was the result of successive amendments to the initial text.

The problems posed by the counties were avoided by eliminating those units of local self-government. The bill contained 85 articles dealing with the municipalities and the cities, the two sole forms of local authority that it recognised, in line with the sub-divisions existing under the 1994 law on territorial organisation and local self-government (amended in 1996 and 1997), which would remain in force in this respect. It therefore did not provide for a tier of authority between central government and the municipalities. The plans to divide the republic into eight regions made up of municipalities, as provided for in the bill of January 1999, were abandoned. This decision not to establish a second tier of local - or regional - government was probably the main problem posed by this draft text, which could otherwise be seen to respect the basic principles of local self-government.

The bill of October 1999 described the municipalities and the cities as autonomous local authorities. Those aspects of local self-government which could be regarded as essential to the autonomy of the municipalities and cities were covered in the draft text. For instance, local authorities were given powers in a fairly wide range of fields (Articles 5 and 40), which might be construed as "a substantial share of public affairs", in conformity with Articles 3 and 4 of the European Charter of Local Self-Government. Furthermore, Articles 36 and 69 guaranteed local authorities' financial resources, in keeping with the adequate funding requirement laid down in Article 9 of the Charter. Lastly, as regards their legitimacy, the municipal council (or city assembly) and the mayor were to be elected by universal suffrage (Articles 10, 18, 45 and 52), in accordance with Article 3 of the Charter. The fact that the principal constituents of local self-government - extent of local authority powers, financial resources, organisation - were covered in this bill was positive. Although their scope sometimes had to be limited to take account of certain local particularities, this did not entail any failure to abide by the principles of the Charter. For example, the relationship between the mayor and the municipal council (or city assembly) did not follow the model of an executive organ answerable to a council, which, on the face of it, is what Article 3.2 of the Charter prescribes. However, since the mayor was also elected by universal suffrage, he or she might only be removed from office by decision of the electorate (Articles 22, 23, 57 and 58 of the bill), a situation which could not be deemed contrary to Article 3.2. of the Charter.

The bill nevertheless posed a number of significant problems with regard to other aspects of local self-government. The legal opinion on this text prepared by the Congress's experts cited a number of shortcomings including: ministerial authority to settle disputes over jurisdiction arising between municipal bodies and central government departments; the appointment of a commissioner to act as mayor; the fact that persons living in a municipality who had the common citizenship of Bosnia and Herzegovina but were not nationals of the Republika Srpska were not entitled to stand for election to municipal office; municipal authorities' discretion to decide for themselves whether their meetings should be public or not; the requirement that municipal authorities comply with ministerial guidelines concerning their administrative organisation and the number of local government employees; the government's powers in matters of appointment, dismissal and suspension of local government employees; its unlimited authority to take "necessary measures" to re-establish co-operation between local authorities and central government departments; the power to dissolve local councils without any form of judicial review of government decisions; the government's right to take measures in place of a local authority which failed to deal with matters coming within its jurisdiction.

D) The law passed in November 1999

In co-operation with the legal department of the Office of the High Representative in Bosnia and Herzegovina and the Congress of Local and Regional Authorities of Europe, the National Assembly of the Republika Srpska made a number of amendments to the last version of the bill. Solutions were found to a number of the problems mentioned above, such as disputes as to jurisdiction between local and central government departments (Articles 31 and 64 of the law), the appointment of a commissioner by the government (Articles 24 and 58 of the bill were deleted), and the requirement that candidates for mayoral office be nationals of the Republika Srpska not only of the State of Bosnia and Herzegovina (Articles 21 and 55 of the law). A number of problems nonetheless subsist, for which the law offers no solution.

a) The fact that municipal bodies are free to decide for themselves whether or not their meetings shall be public (Article 15) constitutes too general a restriction on the promotion of forms of direct citizen participation (Article 3.2 of the Charter). The general principle should be that sessions of municipal councils and their committees are open to the public, save in exceptional cases where overriding, tangible interests necessitate the holding of a closed session. It would also be desirable to allow the possibility of judicial review of decisions taken in this respect.

b) The requirement that municipal authorities comply with guidelines concerning their administrative organisation and the number of local government employees issued by the minister responsible for administrative affairs and local self-government (Articles 26 and 60) constitutes an interference with local authorities' freedom to "determine their own internal administrative structures" (Article 6.1 of the Charter). The unlimited extent of the State's powers in this area and the very fact that such powers are vested in a central government authority can be seen to run counter to the principle of autonomy in organisational matters laid down in the Charter.

c) Merely making mention of rules concerning the appointment, dismissal and suspension of local government employees (Articles 24 and 33) does not appear to satisfy the requirement that such employees be subject to staff regulations founded on the principles of merit and competence (Article 6.2 of the Charter). The need to establish the civil service system required by the Charter should be highlighted. This is all the more necessary in a highly politicised society (such as that of the Republika Srpska), in which no field of activity evades the influence of the political parties and their tendency to attempt to control all levels of government.

d) Failure to define the extent of the government's powers to take "necessary measures" to restore co-operation between local authorities and central government departments (Article 73) breaches the proportionality requirement concerning administrative supervision of local authorities (Article 8 of the Charter). The law should specify the measures which the government is empowered to take.

The government's authority to dissolve local councils (Article 75) also raises doubts as to its compatibility with the Charter. Strict conditions indeed apply, both from a substantive point of view ("where a local authority fails for a long time to deal with matters coming within its jurisdiction, as defined by law and its statute, and thus infringes citizens' rights and freedoms") and in procedural terms (the government must call on local authorities "to take measures such as to fulfil their obligations", and only where this has gone unheeded may the People's Assembly dissolve a council). However, to be deemed to comply with the principles of Article 8 of the Charter, the law would have to provide for judicial review of governmental decisions in such matters.

Similar observations can be made in respect of central government's power to take measures in the place of local authorities where they fail to deal with matters under their jurisdiction (Article 76). This appears acceptable on condition that the central authorities may in turn be made subject to judicial review, as required by the Charter.

Conversely, other government powers in relation to local authorities appear to be well defined by law, in keeping with the requirements of Article 8 of the Charter. The government's authority to suspend the enforcement of local by-laws and regulations is acceptable, given that the law provides that such a suspension must be decided on grounds relating to the lawfulness of the local legislation and that the suspension decision must be referred to the Constitutional Court within eight days (Article 74).

e) On the other hand, local authorities' right to associate (Article 10 of the Charter) may be deemed to be restricted, in that, in this connection, the law cites a specific existing association (Article 12), while admitting of the possibility of other forms of partnership. The law should not in any way stipulate the direction to be taken by local authorities in exercising their right of association.

IV. Observations on the functioning of local and regional democracy in Bosnia and Herzegovina

8. The contrast between the law and reality

The above description of the legislation might lead to the conclusion that Bosnia and Herzegovina is to a large extent applying the principles of the European Charter of Local Self-Government and the draft European Charter of Regional Self-Government.

It might be concluded that the municipalities of the Republika Srpska and the Federation of Bosnia and Herzegovina have authority for a "substantial share of public affairs" (Article 3.1 of the Charter), since, for example, spatial planning, economic development, basic health services and primary education all come within local government's remit under the legislation in force.

Another reason for satisfaction might lie in the fact that the legislation guarantees the fundamental principle of free election of local authorities (Article 3.2 of the Charter). It is true that this principle has been put into practice with the assistance of the OSCE, which monitored the local elections held in September 1997 and is to repeat its monitoring exercise when the next local elections take place in April 2000. Provision is even made for direct citizen participation in the management of public affairs through district councils or local referendums.

This positive impression as regards the state of local and regional democracy might be further reinforced if the existence of associations of local authorities was borne in mind. In the Republika Srpska an Association of Municipalities of the Republic was founded in October 1997 and has a current membership of 55 municipalities out of a total of 64. It is chaired by Mr Borislav Maric, the Mayor of Prijedor, and has its headquarters in Brcko. In the Federation there is an Association of Municipalities and Towns of Bosnia and Herzegovina, which has its headquarters in Sarajevo and is chaired by Mr Selim Beslagic, the Mayor of Tuzla. Contacts between the Association of the Republika Srpska and the Association of the Federation led to the signature of a co-operation agreement between the two associations during the 5^th CLRAE Session held in Strasbourg in June 1999, which made it possible to overcome the difficulties encountered in designating the members of Bosnia and Herzegovina's special guest delegation to the Congress of Local and Regional Authorities of Europe and its two chambers.

Yet the reality of the situation in Bosnia and Herzegovina is far removed from the letter of the law. Although the legislation should not be disregarded, other factors must be taken into consideration if we are to have a full picture of the state of local and regional democracy in Bosnia and Herzegovina. Under cover of the official arrangements and of declarations of willingness to co-operate in implementing the Dayton Agreements, the three main "mono-ethnic" political movements that emerged from the war are pursuing an at times fierce power struggle, a source of not insignificant impediments to progress, which are not always easily discernible. The political parties exercise complete control not only in political matters but also over social and economic affairs. As a result decisions are governed more by ethnic than by objective criteria. Compliance with the principle of multi-ethnicity is part and parcel of democracy: a country which votes on an ethnic basis, either in fact or by law, does not practice universal suffrage, which Article 3.2 of the Charter makes the foundation of local self-government.

However, the effects of the system of "partitocracy" that reigns in Bosnia and Herzegovina are to a certain extent offset by the High Representative. In November 1999 the High Representative removed 22 public officials from office, including 17 at local level, for anti-democratic behaviour. At the same time, he expressed regret at having been obliged to take decisions which would normally have rested with the national authorities. This is again clear proof of the peculiarity of the system. It can be seen that the international supervision to which the country is subject serves to curb the development of extremist tendencies. A political check therefore exists and can be triggered at any time as a factor for democratic stability.

9. Persistence of serious ethnic problems

The issue of the return of the refugees and displaced persons is clearly of essential importance. The international community has made this a priority, and a failure in this area would be a failure to apply the principle of local democracy to the full. However, the realities of the "system" in Bosnia and Herzegovina run counter to this objective. It may be asked whether the analysts are not right to say that, initially, the Federation of Bosnia and Herzegovina and the Republika Srpska showed themselves to be particularly adept at devising legal impediments to the return of "owners of property"⁴. Apart from imposing very short deadlines, an unbelievably complex procedure and impossible conditions, the administrative authorities, particularly at local level, engaged in obstructive practices. The new law of 1998, which was instigated and revised by the international community, introduced a much improved legal framework, but partisan officials at different levels continue to raise obstacles designed to delay the return of members of the ethnic minorities.

A large number of decisions concerning public affairs continue to be based on ethnic criteria. It is unacceptable that new municipalities should be founded on ethnic grounds. It is true that in today's Bosnia and Herzegovina a municipality covers an average of 400 square kilometres and has a population of 20,000. This area is higher than the European average and leaves scope for an increase in the number of municipal authorities. But caution is needed to ensure that such a move does not lead to the creation of municipalities based solely on criteria of ethnic unity, which is not the case at present. Nor is it possible to tolerate situations where the results of the 1997 local elections have not been put into effect. As the Madrid Declaration states, the emergence of elected multi-ethnic authorities is a political priority⁵.

Nor is there much co-operation between the cantons of the Federation. The horizontal lines of communication linking the ten cantons are weak, particularly between cantons with different ethnic majorities. In practice, their relations are confined to the political co-ordination that takes place through the proceedings of the House of Peoples.

There are virtually no instances of transfrontier co-operation with the municipalities of neighbouring States, although such co-operation is encouraged by the Dayton Agreements (Article 2.a). Moreover, those efforts towards transfrontier co-operation that have been made can be interpreted in various ways. In the Canton of Western Herzegovina relations have been established with municipalities in Croatia. In the Republika Srpska many contacts have been made with municipalities in Serbia and the Federal Republic of Yugoslavia. The question might be raised whether these links should not be interpreted as signs of a sense of political liaison or even unity between, respectively, the Serb and Croat zones of Bosnia and Herzegovina and neighbouring States which have the same ethnic or political background. Transfrontier co-operation between municipalities with a different ethnic make-up exists only in a few specific cases: mention might be made of the co-operation between Osijek (Croatia) and Tuzla (Federation of Bosnia and Herzegovina), two cities with a different ethnic make-up which have implemented many joint cultural, political and social projects.

10. Local authorities' financial difficulties

Funding is a major obstacle to the development of local democracy. Local authorities' lack of adequate financial resources is ultimate proof of the serious deficiencies of Bosnia and Herzegovina's system of local democracy. At the same time, it is clear from the information below that the principle that local authorities shall be entitled to adequate financial resources, set forth in Article 9 of the European Charter of Local Self-Government, is not properly respected.

In the Republika Srpska the municipalities receive 30% of local taxes (35% in the case of the cities), and the remaining 70% (65% for the cities) goes to feed the State budget. However, the percentage of local authority resources in the Republic's overall budget cannot be calculated since there are no global provisions for the municipalities and their sources of income are difficult to identify, given the large number of texts dealing with these matters. Taxes are collected and redistributed through a commercial bank under the supervision of the Ministry of Finance. There are no specific mechanisms for the equalisation of resources.

Local authorities complain of major financial difficulties, in particular a serious imbalance between their responsibilities and the resources available to them.

In the Federation it is the cantons which hold most power in financial matters. The law of 1996 on allocation of public resources within the Federation provides that municipalities shall be autonomous in matters of local taxation, but in actual fact each canton has specific legislation determining what share of the resources collected in the canton as a whole will be transferred to the municipalities. For instance, the Canton of Sarajevo transfers 30% of taxes on property and on related profits and 70% of the tax on agricultural profits to its nine municipalities, whereas the Canton of Tuzla allots its municipalities only 20% of the revenues derived from the tax on movement of goods and services and from income tax.

The current privatisation process could have a negative effect on the municipalities, since the proceeds of privatisation of municipal property will not find their way into the municipalities' coffers but will go to the privatisation agencies carrying out the operations.

Conclusions and recommendations

If Bosnia and Herzegovina is to achieve genuine local and regional democracy, far-reaching changes must take place in political circles. Bosnia and Herzegovina should set up multi-ethnic political parties which abide by the rules of pluralist democracy.

An efficient, transparent, multi-ethnic administration should be established at all levels to implement the legislation already passed.

The law should regulate the nature and extent of the supervision which the higher levels exercise over local authorities and the relations between the various levels of government, and this legislation should go hand in hand with legal structures for the settlement of any disputes between the different levels.

These conditions are vital to the development of genuine, stable democracy, and their attainment should be included among the commitments entered into by the country with a view to its European integration.

The different bodies of the Council of Europe should support this process through their structures and technical, legal and administrative assistance programmes, particularly the ADACS Programme.

Bosnia and Herzegovina’s current status as an international “protectorate” encourages the country’s democratic forces in this process, allows them to receive on-the-spot assistance and, to a certain extent, conceals the most serious repercussions of the domination of the political parties’ ethnic structure on the population’s political, social and economic life. The existence of an appeal procedure would nonetheless be desirable when decisions taken by bodies of the international community begin to have an effect on democratically elected local and regional authorities.

Furthermore, it must not be forgotten that the present situation is merely temporary and that the priority, for Bosnia and Herzegovina, is that efforts made by the country’s progressive forces and measures taken by the international community should be based on a durable process of democratic stabilisation and not on mere stopgap solutions to current needs. In this context, education – both formal and informal – seems to be the best means of spreading democratic ideas. Will accession to the Council of Europe help to further the cause of education for democratic citizenship and political, cultural, social and economic pluralism in Bosnia and Herzegovina? This question should be considered by the Parliamentary Assembly and the Committee of Ministers. If this is the case, the rules providing concrete guarantees of its application should be drawn up along with strict control measures and the possibility of eventual suspension.

Bearing in mind all the points made, the inadequacies observed and the proposals put forward in this report, it could be possible to require the authorities of Bosnia and Herzegovina to take into account a certain number of recommendations (see below) allowing the country to develop genuine local and regional democracy. This is indispensable if European standards are to be complied with and should be a necessary precondition for Bosnia and Herzegovina’s accession to the Council of Europe. These recommendations should be implemented within time limits to be set by mutual agreement and their implementation should be monitored by the Council of Europe, as are all the commitments made by the country in view of its European integration.

Recommendations in matters of local and regional democracy

a) Legislation relating to local and regional democracy
- Enact the missing laws on local self-government (in the cantons of Posavina and Herzegovina-Neretva-Mostar) as soon as possible, taking into account the principles of the European Charter of Local Self-Government.
- Bring the legislation of the other eight cantons of the Federation of Bosnia and Herzegovina, which have already passed such laws, into line with the provisions of the European Charter of Local Self-Government, on the basis of the CLRAE experts' appraisals of this legislation and the discussions that took place at the colloquy held in Mostar on 8 December 1999.
- Revise the law on local self-government passed by the Republika Srpska in November 1999, taking into account the comments made by the Council of Europe.
- Establish genuine regional authorities in the Republika Srpska, if possible, in accordance with the fundamental principles of the Council of Europe's draft European Charter of Regional Self-Government, with the aim of achieving close co-operation at the cantonal and regional levels throughout Bosnia and Herzegovina.
- Take all necessary measures to guarantee implementation of the legislation in matters of local and regional democracy; establish appropriate legal and administrative structures to this end.

b) Respect of multi-ethnicity
- Take steps (at local authority level) to ensure the widespread implementation of credible programmes for the return of displaced persons, so that the principle of multi-ethnicity is respected. In particular, municipalities should put into practice the measures prescribed in the Dayton Agreements (Article I of Annex 3; Article I, paragraph 4 and Article II, paragraphs 3, 4 and 5).
- Implement programmes (at the level of the two Entities) to foster closer links and co-operation between municipalities in the two Entities, including through the co-operation between their representative associations.
- Avoid the creation of any new municipalities solely on ethnic grounds.

c) Local and regional finance
- Develop, in both the Federation of Bosnia and Herzegovina and the Republika Srpska a tax system which takes account of the different tiers of government, does not constitute a means of exercising supervision over local authorities and gives them adequate financial resources of their own.
- Take the necessary measures to ensure that privatisation does not result in the weakening of local authorities' financial position.

d) Implementation of Council of Europe principles in the field of local and regional democracy and immediate ratification of the European Framework Convention on Transfrontier Co-operation and its additional protocols

e) After eventual accession:

immediately sign and ratify the European Charter of Local Self-Government;

immediately sign and ratify the Framework Convention for the Protection of National Minorities;

immediately sign and ratify the European Charter for Regional or Minority Languages;

APPENDIX

Visits

The first visit was made to Sarajevo on 9 and 10 September 1998 by Mr Gianfranco Martini (member of the Congress), Mr Claude Haegi (former President of the Congress) and Mr Michel Rivollier (a Congress expert).

The second visit was made to Banja Luka, Sarajevo, Mostar and Bihac from 14 to 16 December 1998 by Mr Haegi, Mr Günter Mudrich (administrative officer in charge of the secretariat of the Chamber of Regions) and Mr François Saint-Ouen (a Congress expert).

The third visit was made to Banja Luka, Doboj, Tuzla and Sarajevo from 8 to 10 February 1999 by Mr Gianfranco Martini, Mr Igor Pellicciari (of the Tuzla Local Democracy Agency), Ms Jasmina Dimitrieva (an administrative officer in the Congress secretariat) and Mr Fernando López-Ramón (a Congress expert).

The fourth visit was made to Mostar, Sarajevo and Banja Luka from 5 to 8 October 1999 by Mr Gianfranco Martini, Mr Claude Haegi, Mr Günter Mudrich, Ms Artemiza Chisca (administrative officer in the Congress secretariat), Mr François Saint-Ouen and Mr Fernando López-Ramón.

Lastly, a colloquy on the cantonal law of the Federation of Bosnia and Herzegovina in matters of local democracy was held in Mostar on 8 December 1999 with the participation of Mr Viorel Coifan, Mr Gianfranco Martini, Mr Owen Masters and Mr Karl-Christian Zahn (members of the Congress), Mr Günter Mudrich and Ms Artemiza Chisca of the Congress secretariat, and Mr Gerhard Geerdts, Mr Ulrich Mentz and Ms Olga Herráiz Serrano (Congress experts) and representatives of the Ministries of the Interior and of 8 of the 10 Cantons of the Federation of Bosnia and Herzegovina.

Meetings during visits

Sarajevo, 9 and 10 September 1998: meeting with Mr Stitic, Secretary General of the Association of Municipalities and Towns of Bosnia and Herzegovina; Mr Morankic, Minister for Town Planning; Ms Korac, Director of the Ministry of Justice's Centre for Legislation; the Governor of Sarajevo; Mr Van Lamoen of the Office of the High Representative; and Mr Craig Jenness, Head of Department at the OSCE mission.

Banja Luka, 14 December 1998: working session with Mr Petar Dokic, Speaker of the National Assembly of the Republika Srpska; Mr Jovan Mitrovic, Deputy Speaker; Mr Borislav Maric, Chairman of the Association of Municipalities of the Republika Srpska and a delegation from the association.

Sarajevo, 15 December 1998: meeting with Mr Dzemaludin Mutapcic, the Federation's Deputy Minister for Foreign Affairs; Mr Selim Beslagic, Chairman of the Association of Municipalities and Towns of Bosnia and Herzegovina, who was accompanied by Mr Mehmedalija Huremovic and Mr Hilmo Pasic, members of the Association; Mr Enver Kreso, Speaker of the Federation's House of Representatives, and a number of members of parliament; and Mr Milhovil Malbasic, Assistant to the Minister for Foreign Affairs of Bosnia and Herzegovina, with responsibility for multilateral co-operation.

Mostar, 16 December 1998: meeting with Ambassador Richard Ellerkmann, Deputy High Representative with responsibility for the southern region; Mr Hamo Masleva, Governor of the Canton of Mostar, and Mr Rade Bosnjak, Vice-Governor; and Mr Ljubo Zovko, President of the cantonal assembly, who was accompanied by the Vice-President, Mr Asim Suta.

Bihac, also on 16 December 1998: meeting with Mr Mirsad Veladzic, President of the Canton; Mr Ismet Botonjic, Cantonal Minister for Refugees and Social Policy; Mr Ibrahim Sarajlija, Deputy Minister for Industry; and with the Finance Minister.

Banja Luka, 8 February 1999: working session with the Mayor of Banja Luka, Mr Umicevic; Mr Borislav Maric, Chairman of the Association of Municipalities of the Republika Srpska, and a delegation from the association.

Doboj, 9 February 1999: meeting with the Mayor of Doboj, who was accompanied by several members of the municipal executive. This was followed by discussions with the Deputy Mayor of Uzora.

Tuzla, also on 9 February 1999: meeting with Mr Selim Beslagic, Mayor of Tuzla and Chairman of the Association of Municipalities and Towns of Bosnia and Herzegovina, and with a delegation from the Tuzla municipal council.

Sarajevo, 10 February 1999: meeting with Mr Omer Ibrahimagic, judge at the Constitutional Court of the Federation and previously a judge at the Constitutional Court of Former Yugoslavia; Mr Mirko Pejanovich, lecturer at the Political Science Faculty, Sarajevo University; Mr Rasim Gacanovic, Mayor of Sarajevo; Ambassador Robert L. Barry, head of the OSCE mission; Mr Jacques Paul Klein, head of department at the OHR; and Mr Eric Hauck of the Sarajevo Local Democracy Agency.

Mostar, 5 and 6 October 1999: joint meeting with OSCE and OHR representatives; Mr Hamo Maslesa, Governor of the Canton of Herzegovina-Neretva, and Mr Maric, adviser to the Vice-Governor; Mr Ljubo Zovko and Mr Asim Suta, respectively President and Vice-President of the cantonal assembly; and Mr Ivan Prskalo and Mr Safet Orucevic, Mayor and Deputy Mayor of Mostar.

Sarajevo, 6 and 7 October 1999: meetings with Mr Beriz Belkic, Prime Minister of the Canton of Sarajevo; Mr Branko Bulic, Deputy Prime Minister; Ms Vildana Kustura, minister without portfolio; Mr Mustafa Mujezinovic, Governor of the Canton; Mr Mirsad Kebo, President of the cantonal assembly; and Mr Radoslav Ljubas, member of the assembly; working dinner with ambassadors, chargés d'affaires and Council of Europe representatives in Sarajevo; meetings with Mr Ibrahim Spahic and Mr Anton Stitic of the Federation's House of Representatives; Ms Ana Vukovic, Director of the Department of Public Administration at the Ministry of Justice of the Federation, and Mr Izmir Hadziavdic, the department's Deputy Director; Mr Selim Beslagic, Chairman of the Association of Municipalities and Towns of Bosnia and Herzegovina; Mr Edouard d'Aoust, departmental director at the OSCE; Mr Johan Van Lamoen, head of the legal department at the OHR; and Mr Andy Bearpark, in charge of return and reconstruction within the OHR.

Banja Luka, 8 October 1999: meeting with Ambassador Miguel Arias, head of the OHR in Banja Luka; Mr Stefanovich, assistant to the Minister for Administration of the Republika Srpska; Mr Novac Kondié, Minister for Finance; Mr Petar Djokic, Speaker of the National Assembly of the Republic and Mr Milos Zlojutro, Chairman of the Parliamentary Committee on Legislation; Mr Djordje Umicevic, Mayor of Banja Luka; and Mr Nebosja Radmanovic, head of the municipality's Executive Office.

² Christos Giakoumopoulos, The contribution of the Venice Commission to the interpretation of the constitutional regime of Bosnia and Herzegovina, in European Commission For Democracy through Law, Opinions on the constitutional regime of Bosnia and Herzegovina, September 1994 - June 1998, Strasbourg, 1 July 1998, CDL-INF (98) 15, pages 6-25.

³ Mr Omer Ibrahimagic, Supremacy of Bosnia and Herzegovina over its Entities, Sarajevo, Kongresa bosnjackih intelektualaca, 1998, 94 pages.

⁴ José-María Aranaz, Efectos de la guerra en Bosnia-Herzegovina. Derrecho al retorno y reforma legal, in Otrosí, the newsletter of the Madrid Bar, No. 8 (1999), pp. 20-26.

⁵ Declaration of the Plenary Conference of the Peace Implementation Council, Madrid, 15 and 16 December 1998.