Human Rights Ombudsperson for Bosnia and Herzegovina

Human Rights Ombudsperson for Bosnia and Herzegovina

The Ombudsman Institutions in Bosnia and Herzegovina

In order to prepare a legal basis for the work of her office after 15. December 2000(1), the Ombudsperson for Bosnia and Herzegovina, Ms. Gret Haller, gave mandate to the European Commission for Democracy through Law (hereinafter "the Venice Commission"), to prepare a draft organic law on the functioning of the institution of the Ombudsperson for BiH after the expiry of the mandate provided for by the Dayton Agreement, i.e. after 15 December 2000. This organic law was drafted in March 1999 and adopted at the session of the Venice Commission in June 1999. In order to be implemented in practice, the proposed law should be adopted in both houses of the Bosnia and Herzegovina Parliament.
Given the composition of the State of Bosnia and Herzegovina, i.e. two entities: the Federation of Bosnia and Herzegovina and the Republika Srpska, and their respective ombudsmen institutions(2), the main purpose of the proposed law was to define distribution of competences between those institutions. The key feature in that respect was to empower the State Ombudsman(3) with freedom to act on the basis of equity, to recommend solutions as mediator between the parties, without excessive legal constrains.

The proposed Preliminary Draft Organic Law for the State Ombudsman of Bosnia and Herzegovina (hereinafter "Organic Law") combines the idea of a classical (European) ombudsman institution and a current economic, social, political and ideological reality in post-war Bosnia and Herzegovina. This "transitional" character, emerging from the war, heading towards "normalization" and re-establishing of multiethnic society on the basis of the rule of law, required a specific approach.

Set up very shortly after the Peace Agreement, the Office of the Ombudsperson for Bosnia and Herzegovina was for a long time the only institution responsible for introducing the European Convention for the Protection of Human Rights and Fundamental Freedoms into the legal system of Bosnia and Herzegovina. Since this task was successfully carried out(4), the Ombudsperson can concentrate more on its conventional mediation functions.

In that sense, the State Ombudsman institution has a multiple function: traditional safeguard of citizens against mal-administration, or violations of human rights and freedoms committed by any government department, authority or official, but also against poor functioning of the judicial system, military administration, private agencies performing public services, etc. (Articles 2,3 and 4 of the Organic Law).

The jurisdiction of the State Ombudsman is confined to cases concerning any institution, authority or agency of the State of Bosnia and Herzegovina, concerning at the same time an institution, authority or agency of an entity and an institution of the State, as well as concerning at the same time institution, authority or agency of both entities. The State Ombudsman may also deal with cases concerning an institution, agency or authority of an entity, whenever s/he finds that the outcome of the case is of particular relevance for the effective enjoyment of individual rights and freedoms in Bosnia and Herzegovina s a whole (Article 5, para. 2 of the Organic Law).

The State Ombudsman will have power to refer cases to the highest judicial authorities competent to deal with human rights issues (Article 6 of the Organic Law); as well to represent the ombudsman institutions of Bosnia and Herzegovina in the international fora and to organize cooperation and consultations between the ombudsman institutions of the entities (Article 13 of the Organic Law).

However, the Working group of the Venice Commission and the Directorate of Human Rights of the Council of Europe tried to avoid hampering the process of change with rigid provisions. Therefore, the Organic Law does not impose restrictions on the powers assigned to the ombudsman institutions by the Peace Agreements.

As from the entry into force of the Organic Law, the Office of the Human Rights Ombudsperson (provided for in Annex 6 to the Dayton Agreement) shall be called "Office of the State Ombudsman of Bosnia and Herzegovina" and shall perform duties in accordance with provisions of that Law (Article 40).

Until 31 December 2003, there shall be one State Ombudsman of Bosnia and Herzegovina (the "transitional State Ombudsman"). S/He may not be a citizen of Bosnia and Herzegovina or any neighboring state and will be appointed by the Chairman in Office of the OSCE after consultations with the Presidency, the Chairman of the House of Representatives and Chairman of the House of Peoples of Bosnia and Herzegovina(5).

Appendix: The latest case summary

Case Summary (6 September 1999)

The Human Rights Ombudsperson for Bosnia and Herzegovina, Dr. Gret Haller, informs the public about the case statistics and the cooperation with authorities.

Provisional files	9,365	Investigations:
Registered cases	3,293*	Opened	599 cases
		Not opened	504 cases
		Closed	107 cases
		Referred to HR Chamber before
		Adoption of the Final Report	110 cases
On the basis of the Final Report:		Final Reports in	507 cases
Initiated proceedings before the HR Chamber	52
Referred to the High Representative		Special Reports on	16 issues
And forwarded to the Presidency/President of
The respondent Party for further action	217

In the last three months the respondent Parties complied with the recommendations of the Ombudsperson in the following reports:

].J. v. the RS (4 March 1999), length of the two set of the civil proceedings before the competent court in the RS. The Ombudsperson found breach of the applicant’s right under Article 6 of the European Convention on Human Rights (“the Convention”) in unreasonably long proceedings and recommended that the RS Government ensure carrying out of both proceedings at issues with no further unnecessary delays. The Government fully complied with Ombudsperson’s recommendations.

D.J. v. the RS (12 April 1999) length of the civil proceedings before the RS Supreme Court. The Ombudsperson found violation of Article 6 of the Convention and recommended that the RS Government ensure that the Court examines the applicant’s appeal from the points of law without further unnecessary delay. The Government fully complied with Ombudsperson’s recommendations in specified time limit.

S.@., D.K., Z.M. and Z.S. v. the RS (3 May 1999) which concerned the applicants’ unsuccessful efforts to commence criminal proceedings against eight local police officers who ill-treated and injured them during the interrogation in the local police station. The Ombudsperson found violations of the applicants’ rights guaranteed by Articles 3 and 13 of the Convention and recommended the competent Office of the Public Prosecutor take the necessary steps with the view to having the police officers concerned being investigated on the basis of the criminal charges pressed by the applicants. The Government fully complied with Ombudsperson’s recommendations in specified time limit.

J.D. v. the FBiH (4 May 1999), the competent housing authority failed to enforce a decision obtained in the applicant’s favour and to restore the possession over the apartment to her. The Ombudsperson found violations of Articles 6, 8 and Article 1 Protocol No.1 to the Convention and recommended that the FBiH Government ensure that the applicant be reinstated in her apartment. The Government fully complied with Ombudsperson’s recommendations in specified time limit.

@.[. v. the RS (13 July 1999), length of the civil proceedings before the RS Supreme Court. The Ombudsperson found violation of Article 6 of the Convention and recommended that the RS Government ensure that the Court examines the applicant’s appeal from the points of law without further unnecessary delay. The Government fully complied with Ombudsperson’s recommendations in specified time limit.

V.P. v. the FBiH (17 August 1999), the competent court in the FBiH failed to enforce a judgement obtained in the applicant’s favour and to restore the possession over the apartment to him. The Ombudsperson found violations of Articles 6, 8 and Article 1 Protocol No.1 to the Convention and recommended that the FBiH Government ensures that the applicant be reinstated into his apartment. The Government fully complied with Ombudsperson’s recommendations in specified time limit.

Footnotes

(1) When, pursuant to Article XIV of Annex 6 to the Dayton peace Agreement, the responsibility for the continued operation of the Ombudsperson shall transfer to the institutions of Bosnia and Herzegovina;

(2) The ombudsman institution of the Republika Srpska is expected to be introduced very soon (as one of the conditions for membership of Bosnia and Herzegovina in the Council of Europe);

(3) The Preliminary Draft Organic Law uses the term "State Ombudsman" underlying that it is a central ombudsman institution of the State, in contrast with the Federation Ombudsmen and the future equivalent institution in the Republika Srpska;

(4) Opinion expressed in the Preliminary Proposal for the Restructuring of Human Rights protection Mechanisms in Bosnia and Herzegovina, adopted in Venice 18-19 June 199, CDL (99) 19 final, p. 9; as well as in the Report of the Working Group of the Venice Commission and the Directorate of Human Rights on Ombudsman Institutions in Bosnia and Herzegovina, adopted in Paris on 11 May 199, CDL (99) 27, p. 6;

(5) This provision is supposed to ensure transition from the actual Human Rights Ombudsperson into the multi-ethnic. State Ombudsman, composed of three person appointed by the House of Representatives and by the House of Peoples by a two-thirds majority of each House, following a joint proposal by the Presidency of Bosnia and Herzegovina (Articles 8 and 9 of the Organic Law).

* Please note that this figure contains 1308 registered JNA cases, in 395 of them the Ombudsperson adopted the final reports. Due to the recent legislative changes the Ombudsperson will not continue examination of those cases in respect of annulments of the purchasing contracts and adjournment of the proceedings (see Case Summary of 4 August 1999).

Newsletter No. 19