BOSNIA: CONSTITUTIONAL COURT RULING CLAIMS OHR

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 000433

SIPDIS

SIPDIS

DEPARTMENT FOR EUR(DICARLO),EUR/SCE(HOH/FOOKS),AND
L(MANSFIELD/DOROSIN); NSC FOR BRAUN

E.O. 12958: DECL: 02/22/2017
TAGS: PGOV PREL PINR KJUS EUN UNSC BK
SUBJECT: BOSNIA: CONSTITUTIONAL COURT RULING CLAIMS OHR
REMOVALS VIOLATED CIVIL RIGHTS

REF: A. 06 SARAJEVO 3209


B. SARAJEVO 62

Classified By: DCM Judith B. Cefkin for reasons 1.4 (B),(D)


1. (C) Over Presidents' Day weekend, the Bosnian
Constitutional Court released a July 2006 decision calling on
the Bosnian government to address human rights violations
stemming from OHR's 2004 removal from office of two Republika
Srpska (RS) officials who had abetted war criminals. The
Court ruled that the lack of an appeal process deprived
Dragan Kalinic and Milorad Bilbija of rights guaranteed to
them under the constitution. The Court did not challenge the
High Rep's authority to remove the Kalinic and Bilbija, but
it argued that Bosnia's international obligations do not
supersede the government's requirement to protect the civil
and human rights of Bosnian citizens persuant to the Bosnian
Constitution. This could involve seeking a revision of the
High Rep's removal decisions or acting unilaterally to
address the issue. Kalinic and Bilbija have threatened to
file suit at the European Court of Human Rights (ECHR),if
the Bosnian government does not implement the Constitutional
Court ruling. The Court decision, much like the Council of
Minister's December decision on decertified police officers
(Reftels),directly challenges the High Rep's authority and
Dayton. OHR is considering how to respond including whether
to use of the Bonn Powers to annul the Constitutional Court
decision. END SUMMARY

Kalinic and Bilbija Plan Strasbourg Suit
--------------


2. (U) Former Speaker of the RS National Assembly as well as
former Serb Democrat Party (SDS) President Dragan Kalinic and
former Deputy Head Operative of the Intelligence and Security
Agency Milorad Bilbija were removed from office by former
High Representative Paddy Ashdown on June 30, 2004 and
December 16, 2004 respectively. Ashdown removed Kalinic
because he failed to prevent the SDS from funneling money to
ICTY indictees, including Radovan Karadzic. He removed
Bilbija for his role in fostering in the RS "a culture of
silence and deceit wherein war crime indictees were protected
from justice." Both filed a series of domestic court cases
disputing these dismissals and claimed their human rights has
been violated, including their right to work, right to
associate, and right to seek an appeal of the OHR decision.
Lower courts gave various ruling on their inability to
challenge OHR decisions and dismissed the cases. The
Constitutional Court agreed to take up both cases in 2005 and
because of the overlapping legal issues involved decided to
consider them as a single case.

July Constitutional Court Ruling
--------------


3. (U) On July 8, 2006 the Constitutional Court concluded
that the Kalinic's and Bilbija's "right to an effective legal
remedy under Article 13 of the European Convention (for the
Protection of Human Rights) has been violated due to lack of
an effective legal remedy within the legal system of Bosnia
Herzegovina, which could be pursued against the decisions of
the High Representative concerning the rights of individuals
and due to a fact that Bosnia and Herzegovina failed to
undertake any activities within the scope of its positive
obligation to secure an effective legal remedy against the
said decisions of the High Representative." The ruling
requires the Bosnian government to meet its constitutional
responsibilities by securing a mechanism for Kalincic and
Bilbija to appeal the High Rep's decision to remove them from
office.


4. (U) The Court acknowledged that the High Rep has the
"power to make binding decisions and authorities of Bosnia
and Herzegovina have an obligation to co-operate with the
High Representative, by virtue of both the General Framework
Agreement for Peace and Security Council Resolution."
However, the Court stressed that Article II(2) of the Bosnian
Constitution applies the rights and freedoms of the European
Convention for the Protection of Human Rights directly in
Bosnia and that Article 13 of the European Convention of
Human Rights requires "an effective remedy", should rights
and freedoms be violated (i.e., legal recourse or an appeal
process). The Court argued that the obligation of BiH in
public international law to cooperate with the High Rep and
to act in conformity with decisions of the UNSC cannot be

SARAJEVO 00000433 002 OF 002


considered to limit the constitutional rights of Bosnian
citizens, which includes the right to "effective remedy" of
violations.

Court Cites Venice Commission
--------------


5. (U) The Constitutional Court cited a March 2005 opinion of
the Venice Commission on the "Constitutional Situation in
Bosnia and Powers of the High Representative" in support of
its ruling. (Note: The Venice Commission issued this opinion
in response to a request from the Council of Europe's
Parliamentary Assembly, which asked whether OHR's ability to
take enforceable decisions without legal remedy was in
compliance with the European Convention. End Note.) The
Venice Commission found that "as a matter of principle, it
seems unacceptable that decisions directly affecting the
rights of individuals taken by a political body (OHR) are not
subject to a fair hearing or at least the minimum of due
process and scrutiny by an independent court." The Court
also drew a parallel between this case and the legal
controversy surrounding UNIPTF decertification (Reftels),
citing the Venice Commission opinion on this issue as well.

Court Creates Political Problem for Bosnian Government
-------------- --------------


6. (C) Constitutional Court Registrar Faris Vehabovic
admitted to us in confidence that the Court settled what it
considered a relatively straightforward legal question, but
in the process had created a huge political problem for the
Bosnian government. (Comment: And, we would add, for the
international community. End Comment.) It will be extremely
difficult for the Bosnian government to protect Kalincic's
and Bilbija's human rights as well as respect OHR's authority
under Dayton, as the Court directs. Any Bosnian government
action to enforce the decision would likely require the
government to turn to the PIC or UNSC for help in providing
"an effective remedy," Vehabovic said. (Note: Of course, the
Bosnian government could take unilateral action as it did
with the issue of decertified police officers. End Note.)
Vehabovic predicted the Bosnian government would not act to
enforce the Court's decision, at least not immediately, which
means Kalinic and Bilbija act on their threat to file suit
against the Bosnian government at European Court of Human
Rights. The ECHR would likely require 4-5 years to
adjudicate the case, according to Vehabovic.

Comment
--------------


7. (C) Like the Council of Minister's December actions on
decertified police officers, the Constitutional Court ruling
in the Kalinic and Bilbija case directly challenges Dayton
and the High Rep's authority. The alleged human rights
concerns in both instances are also similar: the right to
appeal a decision taken to support the implementation of the
Dayton Peace Agreement. The Court ruling opens the door to
dozens of future legal challenges by persons the High Rep
removed from office. Given his earlier position that the
decertified police officers should have the right to appeal
IPTF decisions, it will difficult for Schwarz-Schilling to
argue that Kalinic and Bilbija should not enjoy the same
right. OHR is now considering how to respond, but does not
expect to take any action until after the February 26-27 PIC.
Among the options OHR is reviewing is whether to use the
Bonn Powers to annul the decision, something we believe has
not been done before. While some on Schwarz-Schilling's
staff are arguing that this is the right course, we doubt he
would do it given his philosophy about when and how to use
the Bonn Powers. The Court's ruling will undoubtedly be
raised on the margins of the PIC. We should encourage OHR to
take the strongest appropriate action to prevent the Bosnian
government from implementing the Constitutional Court ruling.
Late last year, the High Rep responded meekly to the CoM
challenge. We cannot afford a repeat of this performance
given the stakes involved. End Comment
MCELHANEY