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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(
OPINION
ON THE DRAFT LAW
ON THE AGENCY OF BOSNIA AND
HERZEGOVINA
FOR INFORMATION AND PROTECTION
prepared by:
Mr Jean-Claude SCHOLSEM
(
1. Introduction
This opinion concerns the Draft
The
Office of the High Representative has requested the Council of Europe’s opinion
on this text, on the understanding that the Venice Commission must analyse in
particular the constitutional aspects of the matter.
So this opinion on the draft law
will confine itself to the constitutional dimension. More specifically still, we shall only
analyse those parts of the text that are liable to raise problems vis-à-vis the
distribution of competences between Bosnia-Herzegovina (BH hereafter) and its
two constituent Entities, the Federation of Bosnia-Herzegovina (FBH hereafter)
and the Republika Srpska (RS hereafter).
2. Under
the terms of the draft law, the Agency for Information and Protection comprises
three separate departments.
The first is the Criminal
Information (or investigation) Department, which is responsible for collecting and
analysing data relevant to the implementation of international and BH criminal
laws. The text comprises a
non-exhaustive list of the offences covered (including acts of terrorism,
trafficking in narcotics, nuclear substances and chemical or biological
weapons, war crimes and crimes against humanity). The text further stipulates that the
Department is responsible for any offence comprising an international element
or an international obligation incumbent on BH (Art. 11 para. 2).
The second department is the “VIP
Protection Department”, which provides protection for any persons exercising
important official duties for the BH institutions, as listed in Article
12. Foreign dignitaries visiting BH and
other persons designated by the Presidency are treated as equivalent categories
and are also protected as such.
The role of the third department is
fairly similar to that of the VIP Protection Department. It is responsible for protecting diplomatic
and consular missions and the BH institutions’ premises and facilities[1][1].
3. This brief overview of the tasks
assigned to the Agency for Protection and Information and its three component
departments highlights the problems which the draft is liable to raise in terms
of the distribution of competences between BH and its two constituent Entities.
According to Article 2 paragraph 2
of the draft, the Agency is responsible for implementing the provisions set out
in Article III-1-g of the Constitution, which assigns BH specific competences
vis-à-vis “international and inter-Entity criminal law enforcement, including
relations with Interpol”.
The drafters have thus rightly
endeavoured to base the legislator’s competence explicitly on a provision of
the BH Constitution.
The Venice Commission has already had
occasion to analyse the scope of Article III-1-g of the BH Constitution,
notably in its opinion in the FBH’s competences in criminal law matters[2][2],
and in its opinion on inter-Entity judicial co-operation in BH[3][3].
The information set out in these opinions
would appear to suggest that Article III-1-g of the BH Constitution provides an
appropriate legal basis for the tasks assigned to the Criminal Information
(Investigation) Department under Article 11 of the draft, and the cases listed
do indeed have an international or inter-Entity dimension.
The text also, and quite rightly,
applies to the offences covered by BH criminal laws. Although the Constitution of BH does not
explicitly assign the State any criminal-law competences, it must be acknowledged
that BH does have some competences in this area, where recourse must be had to
criminal-law machinery in order to implement the other competences explicitly
allocated to the State. This conception
is directly in line with the analysis developed previously by the Venice
Commission in the two aforementioned opinions.
4. Where the tasks assigned to the VIP
Protection Department are concerned, it should be noted that the department is
mainly responsible for protecting persons holding official posts in the BH
institutions, plus visiting foreign dignitaries and other individuals
designated by the Presidency.
Such assignment of responsibilities
also falls within the jurisdiction of BH.
Although the theoretically exhaustive list of the competences of BH set
out in Article III-1 of the Constitution does not seem to include this
particular responsibility, the provision should be taken in conjunction with
Article III 5 a, which confers on BH additional competences necessary for
preserving its sovereignty, territorial integrity, political independence and
international personality. In more
specific connection with foreign dignitaries visiting BH, reference might be
made to the competence conferred on BH under Article III-1-a of the
Constitution on foreign policy. If it is
to implement this competence BH must be in a position to take all necessary
measures to protect political figures travelling within its territory.
So this would seem to establish the
competences of BH. However, these
competences are established on the basis not of Article III-1-g but of Article
III 5 a) of the Constitution. The
wording of Article 2 paragraph 2 should therefore be amended accordingly.
If we accept that BH is responsible,
on the basis of Article III 5 a, for State protection of its own institutions
and individuals holding official posts therein, this opinion is in line with
the Venice Commission’s established interpretation. The Commission has held that even though the
Constitution of BH does not assign any criminal-law competences to the State,
offences may be established at this level where this is necessary for
implementation of responsibilities peculiar to the State or to preserve the
legal system of BH as a state system[4][4].
This an instance of reasoning by
analogy. It should also be stressed that
BH has exclusive competences in these areas since it would appear obvious that
only the State can take measures to ensure the protection of persons who hold
official posts in its various bodies.
5. The problems raised by the BH
Diplomatic and Consular Mission and State Facilities Protection Department are
very similar to those we have just mentioned.
Here again we find manifest links
with both BH’s competences in matters of foreign policy (Article III-1-a) and
the protection of the State institutions themselves (Article III-5-a). In fact these two departments seem to have
very similar tasks, apart from the fact that one deals more with individuals
while the other is more concerned with premises and property.
6. BH’s competence would therefore seem to
have been firmly established on all these points. It would no doubt be desirable to broaden the
constitutional basis mentioned in Article 2, paragraph 2 of the draft to include
also Article III-1-a and Article III-5-a of the Constitution.
Furthermore,
co-ordination with parallel policies conducted by the Federate Entities is also
liable to cause problems.
For instance, the RS has a Law on
the Investigations (Intelligence) and Security Service of the Republika Srpska
(Official Gazette of RS 21/98). The FBH
apparently has no such law, but a highly detailed bill is currently being
drafted (the latest version was drafted in May 2001).
Although we shall not be going into
detail on these two texts since that would be irrelevant to the subject of this
opinion, we should perhaps make a number of comments on them.
First of all, these texts are much
more elaborate (the RS Law comprises 46 articles, while the FBH draft has 78)
than the BH draft (26 articles). We can
only guess at the reasons for this imbalance.
In principle, the subject of the
texts, viz information and protection services, is quite suited to parallel
exercise of competences. For example, it
is only natural for the RS to act to protect its own constitutional order
(Article 1 of the RS Law), its own institutions and the persons holding
official posts therein (Article 4 of the RS Law). There is no need to labour the point that the
Federate Entities have residual competence in BH (Article III-3-a), and that
they also have special responsibilities in connection with the safety of
persons present on their respective territories, which requires the authorities
to maintain the appropriate institutes and services (civilian law enforcement
agencies) (Article III-2-c).
A co-operation-oriented federal
framework is required if such parallel exercise of competences is to be
effective. In fact, this co-operation is
the subject of Article 2, paragraph 2 of the BH draft law (which could be made
more explicit in this respect with a specific mention of co-ordinating similar
departments already existing at Entity level).
However, the RS Law would appear to
have effected some abusive attributions of competence. This applies, for instance, to some of the
items in the list set out in Article 4 of this Law on international and
humanitarian offences, international organised crime, inter-State offences and
threats to BH’s constitutional order.
These subjects do not fall within the RS’s jurisdiction, and the Law
should be amended on these points at he latest when the BH law comes into
force.
7. The FBH draft Law on the Intelligence
and Security Service of the Federation of Bosnia-Herzegovina manages to avoid
most of these encroachments on parallel competences. For example, it only covers protecting
Federation (not BH) institutions and bodies.
However, Article 3 c) assigns it jurisdiction over acts punishable under
international and humanitarian law and co-operation with the International
Criminal Tribunal for former Yugoslavia.
This latter competence is a matter
not for the Federation but for BH, under Article III-1-g of the Constitution.
Nevertheless, the Federation’s draft
law should be seen in a completely different light from the RS Law. The draft is presented as a transitional
solution pending the establishment of an Intelligence and Security Service at
State level (Article 1 para. 2 of the FBH draft law).
It would therefore appear that there
are two competing drafts, one at the FBH level and one at the level of BH
itself, whereby it is acknowledged that the former must be withdrawn as soon as
the latter comes into force.
8. At first sight, from the legal angle,
this approach may appear excessive since Federation has specific competences in
the criminal-law field. For instance, it
is up to the FBH to protect its own installations and buildings and the
security of its bodies.
However, the BH Constitution does
potentially offer an appropriate legal framework for what looks like a transfer
of exercise of certain competences by a Federate Entity to BH. This transfer is apparently not confined to
the mere co-ordination provided for in Article III-4, which may be decided by
the Presidency, barring objections from one of the Federate Entities. New competences could be attributed to BH
under Article III-5-a (“responsibility for such other matters as are agreed by
the Entities”).
Apparently, this refers to
situations where either Entity assigned certain competences to BH. On this assumption, the solution which the
Federation seems to be envisaging should be accompanied by parallel moves from
the RS. This would centralise all the
Intelligence and Security Services, regardless of their individual
specialisations.
However, we cannot completely
exclude the possibility of a very flexible interpretation of Article III-5-a,
which could well lead to a lopsided type of federalism. Under such a reading the text would permit either
or both of the Entities to assign specific missions to BH. The plural used in the text would no longer
be decisive. If such an interpretation
were adopted, there would be nothing to prevent the Federation from entrusting
the exercise of its competences in the intelligence and security field to BH,
while the RS would continue to exercise the corresponding competences
separately (though obviously within the limits of its constitutional
powers). This solution would necessitate
a new financial equalisation system because one of the two Entities would
continue to exercise competences which the other had assigned to the central
level.
9. During the drafting of this opinion a
new text dated December 2001 was sent in.
This latter draft replaces the previous one, dated May 2001, on the FBH
Intelligence and Security Service.
Article 1 of this new draft has been
radically changed: the second paragraph stipulating that the FBH service would
only exist until an intelligence and security service was set up at BH level
has been deleted.
However, Article 68, which has been
added to the transitional and final provisions, incorporates a similar kind of
stipulation. In fact, it might be argued
that it is more appropriate to include this stipulation among the transitional
provisions than among the general provisions of the Law.
Nevertheless, Article 1, paragraph 2
of the May 2001 draft and Article 68 of the December 2001 draft are worded
differently.
The former text simply states that
the FBH service will cease to exist as soon as an intelligence and
information service has been set up at BH level (and must immediately transfer
all its assets, documents and information to this new service).
The
December 2001 text specifies that the service set up at FBH level will cease
operations as soon as a relevant intelligence and information service
has been set up in BH[5][5].
The drafters should explain whether
this difference in wording is purely fortuitous or intentional. If it is intentional, what is the exact
purpose of the difference? In one sense
the service set up at BH level will never be “relevant” because it would have
to be responsible for information and security activities in fields falling
within the jurisdiction of the FBH (eg protecting FBH staff and buildings [Art.
3 e, December 2001 text]). The BH
service would only be “relevant” if both Entities (or even only one of them)
transferred the exercise of this competence to BH by virtue of Article III-5-a)
of the BH Constitution (see section 8 above).
There
is another possible interpretation. It
is conceivable that an intelligence and security service set up at BH level
might not be deemed “relevant” because its competences ratione materiae,
that is to say its duties and assignments, are narrower than those exercised by
the equivalent service set up at FBH level.
In this case, would part of the
service operating at the FBH level survive, the other part being absorbed by
the service set up at BH level? The text
apparently precludes this possibility.
That would mean that both services would coexist for as long as the
service set up at BH level was not considered relevant. However, who is to decide on such relevance,
and how?
It therefore seems necessary to
clarify the scope of the new Article 68 in terms of the possible coexistence of
similar services at the FBH and BH levels.
Moreover, we feel that the new draft
(December 2001) on the FBH service still comprises a number of unjustified
competences, particularly in Article 3 a) (international crime) and 3 c)
(international law and humanitarian law crimes and co-operation with the ICTY).
10. Conclusions
a) The Draft
b) Its legal basis can be deduced not only
from Article III-1-g but also from Article III-1-a and Article III-5-a of the
Constitution.
c) The subject dealt with lends itself to
parallel exercise of competences.
Indeed, such parallel exercise is necessary if the respective
competences of the BH and its constituent Entities are to be honoured.
d) The RS
e) The FBH draft law envisages
“absorption” of the service to be set up at Federation level by that to be set
up at BH State level. This is
constitutionally possible if both Federate Entities so decide (Article III-5-a). The question remains whether one Entity can
act in this way unilaterally.
f) The latest version of the FBH draft
law contains a transitional provision (Art. 68) which may be different in scope
from the similar provision in the previous text (Article 1, paragraph 2) and
which should in any case be elucidated.