Nummer 7 der „Blätter für Öffentliches Recht“ zum downloaden

The balance of the countries in the region for the first quarter of Year 2012 includes rapid preparations of Croatia for the EU membership candidacy and controversial opinion trends of possible Serbia membership in the EU, and sustainably blocking the constitutional reform in Bosnia and Herzegovina. Discussions about constitutional amendments and judicial reform in Bosnia and Herzegovina are remaining at the level of futile political agreement. In the center of this trend are the subversive policies of Serbian anti-state of RS and herzegbosnian ambitions by both HDZ’s to create a third, Croatian entity. There is no serious progress within the Temporary joint committee of both Houses of the Parliamentary Assembly of Bosnia and Herzegovina, for implementation of Sejdic/Finci Judgment. Until beginning of this year, commission has only written a list of political aspirations.

The political fuss from the RS has fully toned down the arguments of the legal profession and attitudes of objective legal science. They insist on the Serbian ownership of the RS entity, on the antiserbian character of the constitutional amendments, on restoration of “the original Dayton”, because the defense of RS was “the greatest successes of the Serbian people since 1918”, i.e. “a single, for now existing success achieved in the past century”, then the antriserbian character of The Prosecutor’s office of B&H and the Court of B&H, also on suspension of HJPC and state jurisdiction. The political message from the RS is that on the bases of the Sejdic/Finci Judgment of the ECHR, “will not involve massive constitutional amendments”, whatever that means. This attitude calculates to feign more decisions of the Constitutional court of B&H and ECHR as well as to break the postwar civilizing B&H constitutional system. The aim is to return B&H into racial-naturalistic conceptions and pre-war situation where all legal standards are falling before the nationalist profiled “national will”.

Constitutional law of B&H, must be civilized by leading Constitution and government jurisdictions must be organized towards the standards of rule of law. By this we mean the ability and willingness of citizens, political parties that represent those people, mass media and social elites to do the last steps for access the European integration by ensuring the effective functioning of state law mechanisms.

In Bosnian situation this process can be understood as the elimination of mental and political blocks regarding progress toward prosperity in society using the Constitutional law. It involves social and political development that leads to modernization of the country through political control and self ethno-nationalist politics. On the first place the political consideration of criminal premise, on non-functional and potential of current constitutional model must be taken in consideration. Its transformation in the way of civilization today must stand in close relation with multinational consolidation of the European Union and the world community. This way, the forms of exercise of political power would be standardized and the rule will be civilized in general. Sejdic/Finci Judgment contains impulses that should substantiate for this purpose.

Building of the constitutional system, that without any reserve is encouraging the protection of human rights and rule of law, is implying removal of institutional remnants of war, the breakdown of barriers for protection of the abstract citizen and upgrading of institutions that provide passable legislative procedures with powerful mechanisms to control the political class and public officials. Building such system relies on the inheritance of concrete states, members of the Council of Europe and the European Union. These attainments are binding for B&H also.

Analyses in this Volume put into focus the problems of treatment of assets, the problems of time validity of Law of war crimes, inconsistent case law and the question of effective enforcement of sanctions, then, the institutional judicial reform, the issue of legal protection of cultural-historical heritage of B&H, as well as an applicable case of avoiding government of entity to apply the Law on Public Procurement, as well as the issue of migration and asylum in B&H. Common to them is to detect the spots where the legal system must be civilized by establishing the constitutional framework of the state that should not rule by usurping of the social product and property in the name of a people, disempowering human and other nation.

Analyses in this Volume should be taken as a contribution to civilize public law.

Edin Šarčević

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