BOSNIA - BIH CONSTITUTIONAL COURT DECISIONS SEND

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 001628

SIPDIS

EUR (STUART),EUR/SCE (HYLAND, FOOKS, STINCHCOMB); NSC FOR
HELGERSON; OSD FOR BEIN; DOJ FOR OPDAT (ALEXANDRE)

E.O. 12958: DECL: 10/16/2018
TAGS: PGOV ECON PREL KCRM BK
SUBJECT: BOSNIA - BIH CONSTITUTIONAL COURT DECISIONS SEND
SHOCK WAVES

REF: A. SARAJEVO 1342

B. SARAJEVO 1572

C. SARAJEVO 1547

Classified By: MICHAEL J. MURPHY FOR REASONS 1.4 (B) AND (D)


1. (C) SUMMARY: Within the past several weeks, the BiH
Constitutional Court has handed down three controversial
decisions that have reinforced the growing view that it is
not up to the task of defending the rule of law in Bosnia.
In a pair of contradictory decisions, the Court upheld the
constitutionality of a December 2007 Republika Srpska (RS)
law that allowed the RS to issue frozen currency bonds, and
at the same time ruled that provisions of the 2006
state-level law on foreign currency savings, which
established the state's competency, were constitutional (Ref
A). The Court also partially upheld a case filed by the
Syrian-born foreign fighter Imad Al-Hussein AKA Abu Hamza
al-Suri and ordered the case back to the State Court for
review -- even though it had jurisdiction to decide on the
case (Ref B). In doing so, the Court kept Abu Hamza's legal
case alive and prevented the Bosnian government from
deporting Abu Hamza to Syria. Moreover, in a
precedent-setting move, the Court halted the high-profile
corruption trial of some top officials of the
Herzegovina-Neretva Cantonal (HNK) Government who claimed
that their human rights were being violated because the state
did not have jurisdiction in their case (Ref C). END SUMMARY


Court Sides with RS on Frozen Foreign Currency Bonds
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2. (C) During its October 3-4 session, the Constitutional
Court handed down two contradictory decisions regarding the
frozen foreign currency bonds issue. It upheld the
constitutionality of a Republika Srpska law passed in
December 2007 allowing it to issue bonds to repay holders of
frozen foreign currency accounts confiscated during the
1992-1995 war, which the RS government did in February of
this year. State-level Tri-Presidency Members Haris
Silajzjic and Zejlko Komsic, as well as Party for Democratic
Action (SDA) President Sulejman Tihic, had challenged the RS
law on the grounds that it violated the BiH constitution.
According to the Court's press release, it had determined
that the RS could issue bonds because both the state and
entities are tasked with the protection of human rights,
apparently including the rights of frozen foreign currency
account holders. This decision runs counter to the Court's
2005 decision that old foreign currency accounts fall within
the exclsuive competence of the state and held the state
responsible for establishing a legislative framework for
resolving the issue to give the state the mandate to deal
with this issue. At the same time, the Court rejected the
challenge by Serb member of the Tri-Presidency Nebojsa
Radmanovic to the constitutionality of two provisions of the
2006 state-level law on frozen foreign currency, adopted in
the wake of the Court's 2005 ruling.

Keeps Abu Hamza's Legal Case Alive
--------------


3. (C) During the same session, the Constitutional Court
rejected Abu Hamza's claims that he would face torture if he
is deported to Syria and that his right to a fair trial had
been violated in his asylum case, but said his right to
family life and to an "effective remedy" as provided for in
the European Convention for Human Rights (ECHR) may be
jeopardized if he is deported from Bosnia. As part of its
findings, the Court sent the case back to the State Court for
adjudication. OHR's lawyers maintained that in doing so, the
Court had departed from its own rules of procedure by
deciding not to rule on a case involving human rights, which
is within its purview. They further charged that the
Constitutional Court had misinterpreted the ECHR's right to
an "effective remedy" provision by deciding on the content of
the decision that was appealed -- the Bosnian government's
refusal to grant Abu Hamza temporary residence )- rather
than on Abu Hamza's access to remedy. OHR's lawyers said
that in the Abu Hamza case, the court had, in effect, simply
relinquished its jurisdiction.


SARAJEVO 00001628 002 OF 002


And Raises Questions about the State Court's Jurisdiction
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4. (C) OHR, the State Prosecutor's Office, and other legal
experts are also concerned about the implications of the
Constitutional Court's September 17 decision to temporarily
halt the high-profile trial of Herzegovina-Neretva Canton
(HNK) officials accused of abuse of office and corruption,
which began in March of this year at the State Court. (Note:
The case had languished at the entity-level until
international investigators and prosecutors took it over.
End Note) Lawyers for these officials essentially argued
that their defendants' rights to a fair trial were being
violated because in their view, it is the entity court
system, not the State Court, that has jurisdiction in the
case. They went on to say that, by actively seeking
jurisdiction, the State Court appeared to be prejudiced
against their clients and may not constitute an impartial
tribunal were the trial to continue. The Constitutional
Court concluded that the lawyers had raised important human
rights-related issues.


5. (C) Outside legal experts argue that the Constitutional
Court's decision in the HNK case was problematic for two
reasons. First, the decision ignored a state law that grants
jurisdiction to the State Court in casees of serious economic
or organized crime even when the alleged underlying offense
was an entity-level offense. In addition, it ignored
established precedent that the State Court has jurisdiction
in such cases. If the Constitutional Court applies this
reasoning to its final ruling, it would seriously handicap
the State Court's ability to combat organized and serious
economic crime. Second, the decision halted a trial
midstream, which was unprecedented. The Constitutional Court
should have allowed the first instance trial and any
subsequent appeal to conclude before reaching judgment about
a constitutional matter associated with the proceedings.
(Note: There has been speculation within Bosnia's legal
community that the Constitutional Court judges may have been
bribed, and that they now plan to refrain from issuing a
final ruling on the matter until international prosecutors
and judges have left the State Court. One contact told us
legal officers at the Constitutional Court were so dismayed
by the judges' legal reasoning that they refused to draft the
decision. End Note)

COMMENT
--------------


6. (C) The Constitutional Court's recent decisions on the RS
frozen foreign currency bonds, Abu Hamza, and the HNK cases
have reinforced the growing view that it can not effectively
carry out its mandate. The RS frozen foreign currency and
HNK cases are especially troubling since they strengthen the
hands of RS and other politicians determined to dismantle or
weaken the state. The decisions on the frozen foreign
currency bonds allow the RS to reclaim a state-level
competency. The HNK case opens a Pandora's Box by giving RS
Prime Minister Dodik and other officials from both entities
an opening to question the jurisdiction of the State-level
Court and Prosecutor's Office in organized crime and
corruption cases. RS authorities have already cited the
cantonal corruption case to justify their failure to
cooperate with the State Prosecutor's Office and the State
Investigative Protective Agency (SIPA) in their investigation
of corruption in RS state government building contracts (Ref
C).
ENGLISH