Venice Commission - Observatory on emergency situations

Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).

Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN

Bosnia and Herzegovina

1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?

The Constitution of Bosnia and Herzegovina does not contain any provision on regulating the state of emergency. However, in addition to the State-level Constitution, Bosnia and Herzegovina also has Entity-level constitutions (the Constitution of the Federation of BiH and the Constitution of the Republika Srpska), and the Statute of the Brčko District of Bosnia and Herzegovina.

The Constitution of the Federation of Bosnia and Herzegovina, in Article IV. B. 9, stipulates that “the Government of the Federation is empowered to issue decrees with the force of law in the event of danger to the country when the Federation Parliament is unable to do so. Any regulation shall have the force of law and may not derogate from the rights and freedoms set forth in this Constitution“.

The Constitution of the Republika Srpska regulates emergency situations and possible suspension of human rights in more detail. Article 68, paragraph 3 of the Constitution of the Republika Srpska prescribes that the measures in its jurisdiction to be implemented in a state of war or emergency declared by the institutions of Bosnia and Herzegovina, as well as measures to be implemented in a state of emergency declared by the institutions of the Republika Srpska.

Furthermore, Article 70 stipulates that the National Assembly, in accordance with the Constitution and the law, declares a state of emergency for the Republic or part of the Republic in case of security is endangered due to natural disasters (floods, earthquakes and fires), natural disasters, epidemics, human rights violations and the freedom and normal functioning of the constitutional bodies of the Republic. Article 81 of the Constitution of the Republika Srpska determined the powers of the President of the Republika Srpska as follows: “In a state of war or emergency declared by the institutions of Bosnia and Herzegovina, and if the National Assembly is unable to convene, the President of the Republic, upon the proposal of the Government or on his or her own initiative, having consulted the President of the National Assembly, shall issue decrees with the force of law regarding matters in the jurisdiction of the National Assembly, and shall appoint and recall those officials who are normally appointed and recalled by the National Assembly. The President of the Republic shall submit these decrees and the decisions of appointments and recalls to be voted by the National Assembly as soon as it is able to convene. In a state of war declared by the institutions of Bosnia and Herzegovina or in a state of emergency, the National Assembly, or the President of the Republic, if the National Assembly is unable to convene, may pass extraordinary legal acts, which shall be valid only for the duration of such a state and shall suspend certain provisions of the Constitution related to: the procedure of passing of laws, other regulations and general legal acts; the powers of republican bodies to undertake certain measures; to certain human freedoms and rights, except for the freedoms and rights provided in Articles 10, 11, 13, 14, 15, 17, 18, 19, 20, 24 and 25 of the Constitution; changing the organization and powers of executive, governing and judicial bodies and their personnel, as well as the territorial organization of the Republic.”

2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?

The provisions of the Law on Defence of Bosnia and Herzegovina stipulate that the Parliamentary Assembly of Bosnia and Herzegovina is competent to declare a state of war at the request of the Presidency of Bosnia and Herzegovina in case of a direct attack on Bosnia and Herzegovina or part of Bosnia and Herzegovina. The Parliamentary Assembly of Bosnia and Herzegovina is competent to declare a state of war at the request of the Presidency of Bosnia and Herzegovina when there is a threat to the existence of Bosnia and Herzegovina, a threat of attack on Bosnia and Herzegovina or any part of Bosnia and Herzegovina or if there is an imminent threat of war (Article 10). Furthermore, Article 12 of the Law on Defence of Bosnia and Herzegovina states that the Presidency of Bosnia and Herzegovina shall adopt decisions by consensus and that it is competent to request a declaration of a state of war from the Parliamentary Assembly of Bosnia and Herzegovina and declaration of a state of emergency from the Parliamentary Assembly. Chapter IV of this Law, entitled: Declaration of War or State of Emergency (Articles 40-43), and Chapter V - Natural and Other Catastrophes and Disasters (Articles 44-45) regulate the issue of requests for declaration of state of war or state of emergency, as well as deadlines for consideration or engagement of the armed forces of Bosnia and Herzegovina in case of natural and other catastrophes and disasters. The text of the law in one of the official languages of BiH is available at here)

In addition to the Law on Defence of BiH, the Framework Law on Protection and Rescue of People and Material Goods from Natural and Other Disasters in BiH roughly regulates the issues of protection and rescue of people and material goods from natural or other disasters in Bosnia and Herzegovina through realization of international obligations and cooperation in the implementation of protection and rescue measures, i.e. civil protection; competencies of institutions and bodies of Bosnia and Herzegovina in the field of protection and rescue of people and material goods from natural or other disasters in Bosnia and Herzegovina; coordination of activities of institutions and bodies of Bosnia and Herzegovina, Entity civil protection administrations and the competent body for civil protection of the Brčko District of Bosnia and Herzegovina; adoption and coordination of plans and programs for protection and rescue from natural or other disasters.
The text of the lawin one of the official languages of BiH is available here)

In the Federation of BiH and the Brčko District of Bosnia and Herzegovina, the definitions of natural and other disasters are subject to the Law on Protection and Rescue of People and Material Goods from Natural and Other Disasters of the Federation of BiH and the Law on Protection and Rescue of People and Material Disasters from Natural and Other Disasters of the Brčko District of BiH. Unlike legal arrangements at the level of BiH, the Federation of BiH and the Brčko District of BiH, in the Republika Srpska there is the Law on Protection and Rescue in Emergencies of the Republika Srpska, which precisely defines the concept of emergency and regulates the type and category of preventive, protective and rescue measures.

3. Do organic or ordinary laws on health risks or other public emergency exist in your country?

In addition to the laws listed in the answer to the second question, in Bosnia and Herzegovina there are also the Law on Protection of the Population from Infectious Diseases of the Federation of BiH and the Law on Protection of the Population from Infectious Diseases of the Republika Srpska.

4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?

In Bosnia and Herzegovina, a number of decisions were passed at various levels of government with regards to the COVID-19 pandemic.

The Council of Ministers of BiH passed the Decision on declaring the state of natural or other disaster on the territory of Bosnia and Herzegovina.

The Government of the Federation of BiH passed the Decision on declaring the state of disaster caused by COVID-19 in the Federation of BiH.

The Mayor of Brčko District declared a state of natural disaster due to COVID-19.

In the Republika Srpska the National Assembly of the Republika Srpska passed a Decision on declaring a state of emergency on the territory of the RS. The decision to lift the state of emergency in the Republika Srpska was passed by the National Assembly at the session held on 21 May 2020.

By the decision of the Government of the Federation of BiH, the state of disaster caused by the outbreak of coronavirus and pandemic (COVID-19) in the territory of the Federation of BiH ended on 31 May 2020.

5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?

Only in the Republika Srpska did the legislative body pass the decision on declaring a state of emergency, while in the case of the Federation of BiH and the Brčko District, the executive body passed a similar decision. These decisions were not subject to the approval of the competent legislatures.

6. Was the declaration subject and submitted to judicial review? Was it found justiciable?

Decisions on declaring the state of emergency and natural disasters were not subject to judicial review.

7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?

The Constitution of Bosnia and Herzegovina does not contain explicit provisions on restrictions and derogation from human rights, nor does it contain provisions on the possibility of derogation from human rights in case of a state of emergency. However, Article II (2) of the Constitution of Bosnia and Herzegovina establishes the constitutional status of the European Convention, according to which this act has priority over all other laws. Also, Article II (3) of the Constitution of Bosnia and Herzegovina establishes a catalogue of rights that are identical to the rights listed in the European Convention and the Protocols to the European Convention. According to Article X/ 2 of the Constitution of Bosnia and Herzegovina, no amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution, nor amend this provision. Given the above, it can be concluded that the restrictions on human rights in Bosnia and Herzegovina arise from the European Convention and its Protocols. During the pandemic, Bosnia and Herzegovina did not inform the Secretary General of the Council of Europe on derogation from the European Convention under Article 15 of the European Convention.

In the answer to Q1, it is stated that the Constitution of the Republika Srpska, in Article 81, prescribes the possibility of suspending certain provisions of the Constitution which refer, among other things, to certain human freedoms and rights. The following rights and freedoms cannot be suspended: equality of all persons in the Republika Srpska when it comes to freedoms, rights and duties; human life; human dignity, physical and spiritual integrity, human privacy, personal and family life; torture, cruel, inhuman or degrading treatment or punishment; unlawful deprivation of liberty; the right to compensation; fair trial; the right to defines; the principle of legality; inviolability of the apartment; and freedom of thought and choice, conscience and belief, as well as public expression. However, freedom and security of person, the right to appeal, freedom of movement, etc. were not on the list of rights under the Constitution of the Republika Srpska that cannot be suspended.

8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?

On the territory of Bosnia and Herzegovina, a number of measures restricting human rights have been adopted. For example, some measures concerned the use of personal data of persons who are infected, in mandatory isolation or who violated the order on mandatory isolation (in respect of which the Agency for Personal Data Protection of BiH 24 March 2020 issued a decision on prohibiting the competent authorities at all levels of government in Bosnia and Herzegovina from publishing personal data on persons who are positive for coronavirus as well as persons who have been issued isolation and self-isolation measures). These measures are relevant for the right guaranteed by Article 8 of the ECHR. A decree adopted in the Republika Srpska prohibited dissemination of information causing panic and inciting riots during the state of emergency: this decree affected the freedom of expression under Article 10 of the European Convention. It is evident that the measures adopted during the pandemic affected both freedom of assembly and freedom of movement. At present there are no cases where a violation of the freedom of movement has been found.

9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?

Article 108, paragraph 2 of the Law on Protection and Rescue of People and Material Goods from Natural and Other Disasters in the Federation of BiH stipulates that civil protection Headqarters have the authority to "order the implementation of appropriate protection and rescue measures" while Article 54 of the Law on Protection of the Population from Infectious Diseases of the Federation of BiH stipulates that the Federation Ministry of Health may order special extraordinary protective measures against these diseases. Pursuant to Article 108, paragraph 2 of the Law on Protection and Rescue of People and Material Goods from Natural and Other Disasters in the Federation of BiH, the Federation Civil Protection Headquarters issued a series of orders and conclusions which limited human rights. Similar decisions (orders and conclusions on imprisonment of wards in social protection institutions, movement of minors and the elderly, ban on presenting or transmitting false news, ban on leaving the place of residence on weekends, etc.) were passed by the Republic Emergency Headquarters on the basis of similar laws in Republika Srpska, and in the Brčko District, that decision was passed by the Rescue and Protection Headquarters of the Brčko District of Bosnia and Herzegovina.

10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?

Article 81 of the Constitution of the Republika Srpska stipulates that during the state of war and state of emergency, the President of the Republic issues decrees with legal force on issues within the competence of the National Assembly and appoints and dismisses officials elected or dismissed by the National Assembly. The President of the Republic shall submit these decrees or decisions on appointment and dismissal to the National Assembly for confirmation as soon as it is able to convene. The National Assembly of the Republika Srpska held its 13th special session on 23 May 2020. confirmed the decrees of the President of the Republic issued during the state of emergency. In other legal acts that were listed in the previous answers as relevant to the issue of state of emergency or state of natural disaster, no more specific answers can be found to the question of time or some other limitation of the executive bodies in such situations.

11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?

From mid-March 2020 to the end of May 2020, there has been an interruption in the work of the legislative bodies. For example, as can be seen from web-site of the National Assembly, after the session of 28 March 2020 when the decision on declaring a state of emergency was passed, the first session was held on 23 May2020 - see here.

The first session of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina after 11 March 2020 was held on 28 April 2020. It was an emergency session at which, among other things, an amendment to the Rules of Procedure of the House of Representatives of the Parliamentary Assembly of BiH was adopted, which prescribed the possibility of holding sessions online in exceptional circumstances - see here.

Regarding the Parliament of the Federation of BiH, at the extraordinary sessions held on 7 April 2020 (House of Representatives) and on 8 April 2020 (House of Peoples), amendments to the Rules of Procedure of the Houses were adopted to enable emergency sessions to be held online.

12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?

During the pandemic, the Constitutional Court of Bosnia and Herzegovina maintained its activities as planned. Regular sessions of the Constitutional Court of Bosnia and Herzegovina were held online according to a predetermined session plan.

As far as ordinary courts are concerned, on 22 March 2020 the High Judicial and Prosecutorial Council passed a Decision on the organization of work in courts and prosecutor's offices in BiH, which, among other things, ordered the following: postponement of main trials in criminal cases, except in cases in which detention is ordered or requested, and where limitation period may expire; and in other emergencies prescribed by criminal law in Bosnia and Herzegovina; postponement of hearings in misdemeanour cases, except in cases related to the failure to comply with orders of competent authorities issued in relation to COVID-19 pandemic; postponement of hearings in civil matters, except in cases where a decision on a interm measure is to be adopted; organizing duty roster of judges and prosecutors. The decision also states that the decision remains in force as long as the extraordinary circumstances of the COVID-19 pandemic virus persist in Bosnia and Herzegovina.

13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?

There have been no amendments to existing legislation or enactment of new regulations addressing the issue of emergencies or natural disasters. Measures have been taken by the executive authorities of the BiH and its entities.

14. Was this additional legislation subject to judicial review?

Since no new legislation was adopted during this period, it was not subject to the judicial review. At the sub-legislative level, some measures ordered by the executive have been challenged before the Constitutional Court. Thus, the order of the Federation Crisis Headquarters banning the movement of persons under the age of 18 and over the age of 65 has been challenged by an appeal filed with the BiH Constitutional Court. Deciding on this appeal, the Constitutional Court of BiH found that the bans pursued a legitimate aim necessary in a democratic society to prevent, protect and combat the COVID-19 pandemic, but found that the matter of dispute was a limitation on the proportional relationship between the general interest of the community and the right to the freedom of movement of the individual. The Constitutional Court of BiH found that the movement bans did not cover any exceptions or the specific needs of the categories covered. The Constitutional Court of BiH also stated that the complete ban on movement, among other things, neglected the issue of persons over 65 who are employed, and that possible alternatives to the introduction of milder measures were not considered at all. The Constitutional Court especially emphasized the fact that the period of duration was not determined by the extraordinary measures, i.e. that the flat statement in the decisions of the FBiH "until further notice" left a large space for inadmissible arbitrariness. In this regard, the Constitutional Court of BiH emphasized that the principle of the rule of law from Article I (2) of the Constitution of BiH must be ensured regardless of the extraordinary circumstances due to which the measures have been adopted. The Constitutional Court concluded that a total ban on movement restrictions for persons under age of 18 and over the age of 65 was not proportionate to the aim sought to be achieved, thus violating the right under Article 2 of Protocol No. 4 to the European Convention.

15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?

As indicated in Q1 and Q5, in Bosnia and Herzegovina only the Republika Srpska formally declared a state of emergency (Decision of 28 March 2020). Some countries in the region provide for different rules on the state of emergency - for example, in the Republic of Serbia Article 200 of the Constitution stipulates that the Decision on the state of emergency lasts a maximum of 90 days. By contrast, Article 70 of the Constitution of the Republic of Srpska, which served as the legal basis for the Decision on the introduction of the state of emergency, does not specify the duration of this special regime. After the initial decision, the National Assembly, at its session held on 21 May 2020, passed the Decision on the abolition of the state of emergency in the Republika Srpska. At the level the Federation of BiH, emergency measures have no "expiry date" either. By the decision of the Government of the Federation of BiH, the state of disaster caused by the outbreak of coronavirus (COVID-19) in the territory of the Federation of BiH ended on 31 May 2020. years.

16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)

There are no special remedies for measures adopted during the emergency situation and measures adopted during the implementation of laws related to the health crisis. At the session held on 27 April 2020, the House of Peoples of the Federation Parliament passed the Law on Deadlines and Proceedings in Court Proceedings during a Natural Disaster. This law prescribes the following: deadlines for filing a lawsuit in civil proceedings, a proposal to initiate a non-litigation or document enforcement procedure, as well as other submissions related to the deadline, shall cease to run during the state of disaster; in criminal and misdemeanour proceedings, the time limits for filing appeals against decisions terminating the proceedings, for declaring extraordinary legal remedies, as well as for taking other procedural actions shall cease to run during the state of disaster; deadlines in administrative disputes relating to the taking of procedural actions and the fulfilment of their material obligations shall cease to run during the state of disaster; deadlines for declaring ordinary and extraordinary legal remedies, proposals for restitution or for undertaking other procedural actions in civil, non-litigation and enforcement proceedings and administrative disputes referred to in this Law shall cease to run during the state of disaster; statutes of limitations, prescribed by civil law, shall not run during a state of disaster. Similar arrangements are contained in the Decree with the force of law on the work of the judiciary in the Republika Srpska.

17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?

See Q18

18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.

On 30 April, the BiH Central Election Commission (CEC) held its first web-streamed session and discussed the ongoing preparations for the local elections in October. CEC Members highlighted several problems they face in implementing preparatory activities for holding local elections, including the suspension of postal traffic, the financial problems due to the failure to adopt the 2020 budget at BiH level, and the lack of coordination between the respective institutions.

On 7 May, the CEC set the local elections for 4 October (normal schedule; this was according to the law the last day to set elections).

On 23 May, the CEC postponed local elections due in October for six weeks, to November 15, after political rows held up the adoption of a budget for 2020 and funding for the ballot within the legally permitted deadline to start preparations.

The state of emergency has been lifted in the Republica Srpska on 20 May, and in the FBiH the state of natural disaster has been lifted as of 31 May.