FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 45541/04 and 16587/07 by Dragan KALINIĆ and Milorad BILBIJA against Bosnia and Herzegovina

The European Court of Human Rights (Fourth Section), sitting on 13 Ma y 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application s lodged on 25 November 2004 and on 22 March 2007 ,

Having deliberated, decides as follows:

THE FACTS

The applicant s , Mr Dragan Kalinić and Mr Milorad Bilbija , are citizen s of Bosnia and Herzegov ina . They w ere rep resented before the Court by Mr M. Pucar , a lawyer practising in Banja Luka .

A. The circumstances of the case

The facts of the case, as submitted by the applicant s , may be summarised as follows.

On 29 June 2004 the High Representative removed Mr Kalinić from his position s as Speaker of the Parliament of the Republika Srpska and as president of a political party ( Srpska demokratska stranka ; “SDS”) . Mr Kalinić was also barred , until further notice, from holding any public or political-party positions and from running for election. The decision had immediate effect and did not require any further procedural steps. The main reasons given for the decision are reproduced here:

“1. Despite its constitutionally mandated duty to fully co-operate with ICTY [that is, the International Criminal Tribunal for the Former Yugoslavia] – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war without a single war criminal being arrested in the territory of the Republika Srpska by the authorities of the Republika Srpska , is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole.

For over a decade and throughout the war, SDS has held the reins of political power in the Republika Srpska . The Entity ’ s failure to apprehend those indicted individuals in flagrant disregard of Bosnia and Herzegovina ’ s obligations under international law is, therefore, a damning indictment of SDS ’ s commitment to proper governance. Given its dubious legacy as the political party founded by and initially presided over by the chief ICTY indictee at large, Radovan Karadžić , it was doubly incumbent upon SDS to effect expiation and rehabilitation by proactively pursuing and bringing to book the erstwhile architects of its odious policies which so disfigured the polity. That it has not done so is a testament, at best, to its negligent abdication of governmental responsibility or, at worst, to its concerted will to obstruct peace implementation by clinging to vestiges (and figures) of its bankrupt past.

As the leading member of the SDS occupying the highest position of responsibility within the party and upon solid information and belief, Mr. Kalinić is culpable for the SDS ’ s failure to purge the political landscape of conditions conducive to the sustenance to individuals indicted under Article 19 [ of the Statute of the ICTY ], as aforesaid.

2. Persons holding office as President of a political party are placed in a position of trust and confidence not only vis-à-vis the members of that particular party but also vis-à-vis the taxpayers insofar as political parties are funded, inter alia , from the budgets of the various level of Governments in Bosnia and Herzegovina. As such, they are under an obligation to ensure that the financing of the parties is fully transparent and orderly and to take such step as are necessary to ensure that the party observes and adheres to both domestic law and international obligations and that funds from the Party, whether private or public, are neither used for the sustenance of criminals or indicted war criminals or their support structures nor to help those evade capture.

The Report of the Special Auditor for the Republika Srpska shows substantial discrepancies between the Financial Report of 19 April 2004 and the financial records of SDS offices across the Republika Srpska . In particular, the Report of the Special Auditor highlights the lack of property lists, poor invoices supporting payments, incomplete payments of required social benefit and employment tax costs for SDS employees, unreported cash income, poorly documented and frequent withdrawals from petty cash, all of which constitute breaches of the Law.

More importantly, the Report shows a total failure of the central bodies of the SDS to assume their supervisory duties under the Statute of the Party and to guarantee that the minimum necessary measures are in place for ensuring the effective and proper management and control of the party and its assets. The result of such failures of control amount to a delinquency of duty to ensure that these funds are secure from being used to sustain or assist indicted war criminals, and especially Radovan Karadžić , the founder of the SDS, who, inter alia , has admitted in a letter that he is in contact with and has received assistance from SDS, a fact which is also supported by certain other evidence.

For reasons mentioned above, Dragan Kalinić had a special responsibility to sever the links of the party with the past by ensuring that no material assistance could be or was provided to such an individual. The findings of said Report compel the conclusion that, in the absence of control mechanisms, the SDS and its President are not in sufficient control of the funds of the Party to preclude party bodies from providing any assistance or succour to its former President.

On these grounds, the peace implementation is undermined as long as Mr Kalinić remains in office. Accordingly, he must be removed from office forthwith.”

On 16 December 2004 the High Representative removed Mr Bilbija from his position in the Intelligence and Security Agency of Bosnia and Herzegovina and from all his other public and political-party positions . Mr Bilbija was also barred, until further notice, from holding any such position s and from running for election. The decision had immediate effect and did not require any further procedural steps. The following are the main reasons given for the decision:

“ Bosnia and Herzegovina has singularly failed to discharge its international obligation to bring closure to arguably the most lamentable chapter of its history. It has failed especially and egregiously in the territory of the Republika Srpska to apprehend and deliver to just prosecution a number of persons indicted under Article 19 of the Statute of the ICTY.

Said failure could not have occurred without the active assistance of individuals and entities, or indeed without the general culture of both overt and secret complicity and of silence prevalent in the one Entity of Bosnia and Herzegovina where such individuals are believed to have found sanctuary, that is, [in the] Republika Srpska .

Despite its constitutionally mandated duty to fully co-operate with the ICTY – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within the Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole.

It now falls on the international community to redress this intolerable situation by initiating direct and sweeping action against those public-office holders of the Republika Srpska who obstruct international law in the Entity. By dint of their nefarious conduct or failure to carry out their functional responsibilities while associated in differing capacities with public institutions, these individuals have demonstrated that they are not worthy of entrustment with public responsibility.

Based on the foregoing and upon solid information and belief, it is deemed necessary to remove from public office Milorad Bilbija . Milorad Bilbija holds the office of Deputy Head Operative Administration of the Intelligence and Security Agency in Banja Luka . Milorad Biblija is, whether through his actions or his failures to act an integral part of the common scheme within the Republika Srpska to foster a culture of silence and deceit wherein war crime indictees are protected from justice.

As a constituent of the current political culture within the Republika Srpska , Milorad Bilbija is derivatively culpable for contributing to the failure to purge from the political landscape of conditions conducive to the provision of material support and sustenance to individuals indicted under Article 19 [ of the Statute of the ICTY ] , as aforesaid. Such failings are inimical to stability and the rule of law. Milorad Bilbija , therefore, obstructs the process of peace implementation and must be removed from public office. The principles of proper governance and transparency, protection of the integrity and reputation of the institutions of Bosnia and Herzegovina , and active support for the rule of law and for the international obligations of Bosnia and Herzegovina – so essential to the peace implementation process – mandate this outcome. ”

Following appeals of the applicants, on 28 February 2005 and on 18 May 2005 the Court of Bosnia and Herzegovina and the Supreme Court of the Republika Srpska , respectively, decided that they lacked jurisdiction to examine the High Representative ’ s decisions mentioned above.

The applicants then appealed to the Constitutional Court of Bosnia and Herzegovina. On 8 July 2006 the Constitutional Court found that the domestic authorities had failed to secure an effective domestic remedy against the decisions of the High Representative in the applicants ’ cases, as required by Article 13 of the European Convention on Human Rights and the equivalent provision of the Constitution of Bosnia and Herzegovina . The domestic authorities were ordered to secure such a remedy. This decision (no. AP 953/05) was published in the Official Gazette of Bosnia and Herzegovina no. 20/07 of 20 March 2007. It led to a vigorous response from the High Representative: on 23 March 2007 he issued a decision removing any practical effect from the Constitutional Court ’ s decision of 8 July 2006. The relevant part of the High Representative ’ s decision reads as follows :

“ Article 1

In order to implement the Decision of the [Constitutional] Court [no. AP 953/05 of 8 July 2006], the Presidency of Bosnia and Herzegovina shall address to the High Representative, as Chair of the Steering Board of the [ Peace Implementation Council ], all matters raised in said Decision that ought to be considered by the international authorities referenced in the said Decision.

Article 2

Any step taken by any institution or authority in Bosnia and Herzegovina in order to establish any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate shall be considered by the High Representative as an attempt to undermine the implementation of the civilian aspects of the [Peace Agreement] and shall be treated in itself as conduct undermining such implementation.

Article 3

Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.

Any proceeding referred to in Paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay.

For the avoidance of any doubt or ambiguity, and taking into account the totality of the matters aforesaid, it is hereby specifically ordered and determined, in the exercise of the said international mandate of the High Representative and pursuant to its interpretation hereinunder and by virtue of the said Annex 10 [to the Peace Agreement], that no liability is capable of being incurred on the part of the Institutions of Bosnia and Herzegovina, and/or any of its subdivisions and/or any other authority in Bosnia and Herzegovina, in respect of any loss or damage allegedly flowing, either directly or indirectly, from such Decision of the High Representative made pursuant to his or her international mandate, or at all.

Article 4

For the avoidance of doubt, it is hereby specifically declared and provided that the provisions of the Order contained herein are, as to each and every one of them, laid down by the High Representative pursuant to his international mandate and are not, therefore, justiciable by the Courts of Bosnia and Herzegovina or its Entities or elsewhere, and no proceedings may be brought in respect of duties in respect thereof before any court wh atsoever at any time hereafter.

Article 5

This Order shall enter into force immediately and shall be published without delay...”

B. Relevant law and practice

The r elevant law and practice were outlined in Berić and Others v. Bosnia and Herzegovina ( (dec.), nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, ECHR 2007 ‑ ...).

COMPLAINTS

The applicants complained under Article s 6 , 7, 10, 11 and 13 of the Convention and Article 3 of Protocol No. 1 to the Convention about the High Representative ’ s decisions of 29 June 2004, 16 December 2004 and 23 March 2007 mentioned above.

THE LAW

The Court recalls that removals from office ordered by the High Representative pursuant to his “Bonn powers” are, in principle, attributable to the United Nations and that Bosnia and Herzegovina could not be held responsible for such removals (see Berić and Others , cited above, §§ 26-30). T he applicants ’ complaints concerning the decisions of 29 June 2004 and 16 December 2004 must accordingly be declared incompatible ratione personae within the meaning of Article 35 § 3 of the Convention .

Notwithstanding the fact that the decision of 23 March 2007 did not concern removals from office directly, but prevented the introduction of an effective remedy with regard to such removals into the legal system of Bosnia and Herzegovina , the Court considers that the reasoning outlined in Berić and Others ( cited above) also applies to that decision. T he applicants ’ complaints concerning the decision of 23 March 2007 must likewise be declared incompatible ratione personae within the meaning of Article 35 § 3 of the Convention .

For these reas ons, the Court unanimously

Decides to join the applications;

Declares the application s inadmissible.

Lawrence Early Nicolas Bratza Registrar President