Following the decision of the President of the Federation of Bosnia and Herzegovina on the appointment of judges to the Supreme Court of the Federation of BiH of 3 February 2011, the HJPC BiH invites the relevant authorities of FBiH to observe  legal and constitutional jurisdiction of this State institution when appointing judges to the Constitutional Court FBiH. 

HJPC BiH is of the view that the aforementioned decision of the President of the Federation of BiH, with the consent of the Vice-President of FBiH, is not in compliance with the highest legal act of this Entity of Bosnia and Herzegovina and that, once again, ignores the constitutional jurisdiction of the HJPC since, the President of FBiH has already attempted to do this on several occasions. 

It is noteworthy that the House of Peoples of the Parliament of FBiH did not decide to grant the 2009 proposal of the President of the Federation which was filed previously, thus observing the constitutional provisions and jurisdiction of the HJPC BiH.  

In her decision of 3 February 2011, Borjana Krišto, the President of FBiH,  appointed Andrija Kolak, who has never been proposed by the HJPC BiH, to assume one of three judicial offices in the Constitutional Court of FBiH, and she thus assumed the jurisdiction of other institutions and attempted to appoint her favourite candidate. 

By this decision, Borjana Krišto, the President of FBiH, violated the Constitution of FBiH and the Law on HJPC BiH, and she also violated the rule of law and undermined the principle of balance between the authorities participating in the process of appointment of judges to the Constitutional Court of FBiH. 

The HJPC BiH refers to the Communiqué of the Steering Board of the Peace Implementation Council of 26 March 2009 in which it expressed its strong concern about the then actions of the President of the Federation of BiH who, at the time of appointing judges to the Constitutional Court FBiH disregarded the relevant jurisdiction of the HJPC BiH as stipulated in the Constitution FBiH.  As stated in the referenced Communiqué, such decisions constitute an attack on the State institutions and the fundamental principle of judicial independence from political influences.  This Communiqué clearly notes that, under the Constitution FBiH, only those candidates who are proposed by the HJPC BiH may be proposed to assume the office of a judges at the Constitutional Court of FBiH. 

Furthermore, the HJPC BiH refers to the 2 February 2009 letter of the High Representative of the International Community to BiH (OHR) and his interpretation of the provisions of the Constitution BiH, which was forwarded to all relevant authorities in the Federation of BiH, and which referred to the attempt of Borjana Krišto, the President of FBiH, to propose Andrija Kolak as the judge of the Constitutional Court of FBIH who was not included in the proposal by the HJPC BiH. 

This letter clearly notes the role of the President of FBiH in proposing the judges for the Constitutional Court of FBiH, i.e. only those candidates who have been put forward by the HJPC BiH. 

Pursuant to the provisions of the Amendment LVI and Amendment LIX to the Constitution of FBiH, which constituted a part of the OHR Decision, that is, pursuant to Article IV.B.7(a)(I), as amended by the Amendment LVI, the President of FBiH shall have authority to appoint, among others, judges to the Constitutional Court of the Federation BiH following the proposal of candidates by the HJPC BiH, pursuant to Articles IV.B.5, IV.B.8 and IV.C.6.  In terms of the appointment of judges to the Constitutional Court, the provision, i.e. Article IV.C.6(2) passed as a part of the Amendment LIX to the Constitution of the Federation, and reads: „2. The Judges of the Constitutional Court shall be nominated by the President of the Federation with the concurrence of the Vice-Presidents, and shall for appointment require the approval of a majority of the present and voting members of the House of Peoples”.

Based on the relevant OHR interpretation, the foregoing provisions must be interpreted as a whole. 
Following previous attempts of the President of the Federation of FBiH to propose Andrija Kolak as judge of the Constitutional Court FBiH, Dimitris Kourkoulas, the Head of the European Commission Delegation, made a press release on 4 February 2009, in which he clearly noted the need that the appointment procedure and the jurisdiction of the BiH institutions thereof should be observed.

Kourkulas emphasised that such behaviour constituted an attack against the principle of judicial independence from political influences and might have a serious impact on the administration of justice.  The Head of the EC Delegation clearly stated that such attacks could have produced consequences in terms of the EC assistance to Bosnia and Herzegovina, and he strongly reminded the competent authorities of their obligation to act in compliance with the law. 

In support to this Notification, we hereby provide a short run up of events concerning the appointment of judges to the Constitutional Court of FBiH. 

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