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Post-Communist Transition to Democracy and Problems in the Balkans: Case of Bosnia- Herzegovinia
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appointed in January 2006, openly denounced the use of the Bonn Powers. The PIC Steering Board concluded in
June 2006 that OHR was going to be closed within one year. But the with the abandonment of the effective use of
the Bonn Powers by OHR/EUSR, the process has been sloved down contrary to all expectations. This led to post-
ponement of the closure of OHR due to the country’s failure to meet the required conditions
This new policy has created a good political maneuvering area for the local politicians (especially for the Bosnian
Serb politicians) to resist the constitutional reforms. This period have witnessed the failure of amendments to
the BiH Constitution in 2006, known as ‘April Package’. The adoption of the police reform, which is the most
contentious issue between the parties, took place in 2008, and as a result of this, Bosna signed SAA with EU in
the same year. In 2009, another attempt led by EU and US for the reforms in BiH constitution called as ‘Butmir
Talks’, produced no concrete results. General elections in 2010 did not change the political scene on contrary all
optimistic expectations. Despite the significant electoral gains scored by the Social Democratic Party, no govern-
ing coalition is possible due to the disputes between the ethnic nationalist parties. Prolonged political wrangling
over the formation of ruling coalitions paralyzed the country for fourteen months until late December 2011, an
agreement on a new central government was reached.
These developments has shown that the Bosnian politicians have a different agenda that can not be called as
europeanization. In addition to this, due to vague position of the EU on the Bosnian crisis the EUSR has played
unclear and ambiguous role. Both situations contributes to the continuity of uncertainty in Bosnia. Unless the
europeanization is not a real agenda of the Bosnian politicians, EURS mandate will continue to be an international
body which prevents the sovereignty of the country, for its ongoing presence in Bosnia.
2.2 Constitutional Court of BiH
The democratic institutions alone can not be the initiators in the divided societies where there is no democratic
reconciliation
.
Therefore, in such societies, constitutions are of great importance as a means of power-sharing
arrangement and strengthening the nation state. Achievement of this goal requires the strict application of the
constitution and the judicial review of the structures of governance rigorously. In this context, the neutrality of
judiciary is vital in such a divided societies.
Court of BiH is designed to fulfill the function of an objective power in a extremely divided society where con-
stitutional politics tend to play out along ethnic lines. In order to ensure its political and ethnic neutrality, it is
designed as hybrid institution which is composed of six local and three international judges. (Grewe&Riegner,
2011: 40). Three international judges are appointed by the President of the European Court of Human Rights after
consultating with the State Presidency of BiH for five years. The local judges are elected by the legislatures of both
Entities; four are by the House of Representative of Federations of BiH and two by the Assembly of the Republika
Srpska. Although the Constitution of BiH does not require any official ethnic quota among the local judges, in
practice the two judges elected in the Republika Srpska are Serbs and of the four judges elected in the Federation
of BiH two are Croats and two Bosniacs. However still the Constitutional court of BiH is the only institution that
can not be paralyzed on ethnic basis unlike other Bosnian institutions. The participation of the three international
Judges and adoption of the decisions by majority does not allow any ethnic outvoting.
The competences of the Constitutional Court is determined in five categories; inter-institutional ligitations
between the state organs or between organs of an Entity as wel as federal disputes between the state and the Enti-
ties; review of constitutionality of legislation through abstract norm control; individual complaints against the
judgement of any court, if a constitutional question is raised by one the parties; concrete norm control through
ordinary court referrals; and vital interes vetoes of one of the constitutuent peoples (Grewe & Riegner, 2009: 40).
One of the most important problems for the Constitutional Court has been the vagueness of the constitution. The
few and very general formulations in the Constitution leads to problems in the implementation of the decisions
of the Court. It has also raises problems regarding the Court’s legitimacy (Grewe & Riegner, 2009: 45). On the
other hand the Court has confronted with the consequences of ethnicization in numerous proceeding. In such
cases, the Court takes most of its decisions according to the principle of equality of the constituent peoples (Grewe
& Riegner, 2009: 19). For example, the Court’s decision on the ‘Constituent Peoples’ case of 2000 provides the