Зборник радова"Кoнституционализација Босне и Херцеговине"
Collection of papers"Constitutionalization of Bosnia and Herzegovina"
Contributor(s): Goran Marković (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-58-7
- Page Count: 292
- Publication Year: 2021
- Language: Serbian
Околности, услови и исходи конституционализације Босне и Херцеговине
Околности, услови и исходи конституционализације Босне и Херцеговине
(Circumstances, Conditions, and Outcomes of the Constitutionalization of Bosnia and Herzegovina)
- Author(s):Radomir V. Lukić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:1-31
- No. of Pages:31
- Keywords:Constitutionalism; Limitation and control of state power; Constitution of Bosnia and Herzegovina; Sovereignty;
- Summary/Abstract:Constitutionalism is a theory and practice of institutional limitation and control of state power, a barrier to the emergence of an omnipotent, unlimited, arbitrary and uncontrolled state power. After presenting the basic assumptions of constitutionalism, the article examines the extent to which the existing written Constitution of Bosnia and Herzegovina provides institutional mechanisms for limiting state power, and the extent to which its “living” constitution does the same, considering the fact that the latter’s essence lays in the unconstitutional and supra-constitutional bodies such as the Peace Implementation Council, its Steering Committee, as well as the High Representative and his Office.
Конституционализација начела подјеле власти у Уставу Босне и Херцеговине
Конституционализација начела подјеле власти у Уставу Босне и Херцеговине
(Constitutionalization of the Principle of Separation of Powers in the Constitution of Bosnia and Herzegovina)
- Author(s):Goran Marković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:35-72
- No. of Pages:38
- Keywords:The principles of separation of powers; Semi-presidential system; Parliamentary system; Bosnia and Herzegovina; Parliamentary Assembly; Presidency; Council of Ministries; The right of veto;
- Summary/Abstract:The analysis of the content of the constitutionalization of the principle of separation of powers in the Constitution of Bosnia and Herzegovina is important not only for giving a theoretical answer to the question of the system of state power which is prescribed by this constitution, but also for understanding the essence of relations between the political institutions of Bosnia and Herzegovina. The goal of this research is multiple. First, the constitutional framework for mutual relations of political institutions has to be analyzed, in order to answer the question whether their normative relationship is based on the balance and equality, or on the hierarchy.Secondly, the analysis of constitutional and other legal norms should point out their good and bad sides, i.e. point out the omissions made by the constitution-maker and the legislator. Apart of the analysis aims to make proposals for changes in the constitutional and legal norms. Third, the analysis can not be only the constitutional but also the political one. The analysis starts from the understanding that the principle of separation of powers often turns into its opposite, which, as a rule, is reflected in the de facto supremacy of the executive. Political analysis should provide an answer to the question whether this is the case in the relation to the political institutions of Bosnia and Herzegovina, which of them is dominant, and how the dominance is reflected. To answer these questions, we have to analyze the functioning of these institutions in those segments that are important for their relationship. The author concludes that the Constitution of Bosnia and Herzegovina constitutionalizes the semi-presidential system of government. The head of state has significant competences,especially in the field of foreign policy, but there are also means of influencing the legislature.Certain features of the semi-presidential system are missing, such as the right of veto and powers in extraordinary circumstances, but these facts cannot call into the question the previous conclusion, because other features of this system are present.
Однос политичких институција у уставном систему Републике Српске
Однос политичких институција у уставном систему Републике Српске
(Relationship Between Political Institutions in the Constitutional System of the Republika Srpska)
- Author(s):Goran Marković
- Language:Serbian
- Subject(s):Constitutional Law, Politics and law
- Page Range:73-122
- No. of Pages:50
- Keywords:Political institutions; National Assembly; Government; President of the Republic; Parliamentary system; Semi-presidential system;
- Summary/Abstract:The author deals with the relationship between the political institutions in the constitutional system of the Republika Srpska – the National Assembly, the Government and the President of the Republic. Several reasons influenced the choice of this topic and the determination of the research goals. The constitutionalists have not yet tried to answer the question about the legal nature of the system of state power of the Republika Srpska, being satisfied with mostly unexplained hypotheses about parliamentarism and parliamentary democracy. The Constitution of the Republika Srpska contains a series of provisions on the relations of political institutions, which lead to the conclusion that the semi-presidential system has been constitutionalized. These provisions give significant competencies to the President of the Republic, which enable this institution, under certain political conditions, to become a central political institution.The analysis takes place on two levels – positive-legal and abstract-theoretical, using legal, comparative, politological, and historical methods. The basis of the paper is the analysis of constitutional provisions on competencies and mutual relations of political institutions. This analysis is supplemented by theoretical considerations on the systems of state power – parliamentary and semi-presidential, in order to reach a conclusion on which of them is constitutionalized in the Republika Srpska. The usage of the comparative method should also serve this purpose. The usage of the politological method is inevitable, since the balance of legislative and the executive powers enacted by the Constitution, with the role of the President of the Republic to express the state unity, is not achieved in reality, because there is the dominance of the executive. The political science method should make it possible to answer the question what the real relationship of political institutions is and how much power each of them has. The author concludes that the Republika Srpska has a semi-presidential system of government. The competencies of the President of the Republic make him a potentially active state authority, which will not only arbitrate between the National Assembly and the Government, but also actively participate in policy-making.
Организација државне управе у Босни и Херцеговини de lege lata и de lege ferenda
Организација државне управе у Босни и Херцеговини de lege lata и de lege ferenda
(Organization of State Administration in Bosnia and Herzegovina de lege lata and de lege ferenda)
- Author(s):Sanja Golijanin
- Language:Serbian
- Subject(s):Administrative Law
- Page Range:123-149
- No. of Pages:27
- Keywords:State administration; Bosnia and Herzegovina; Entities; Cantons; Brčko District;
- Summary/Abstract:State administration in Bosnia and Herzegovina is organized on multiple levels and those are as follows: state level (Bosnia and Herzegovina), entity levels (Federation of Bosnia and Herzegovina and Republic of Srpska), cantonal levels (in Federation of Bosnia and Herzegovina) and level of Brčko District of Bosnia and Herzegovina. Thereto, the number of and jurisdictions of administrative bodies on each mentioned level depends on the distribution of jurisdictions. Therefore, significant attention in this paper is devoted to analyzing constitutional provisions on distribution of jurisdictions in Bosnia and Herzegovina with a special accent to, so called, additional jurisdictions and influence of such jurisdiction on (re)organization of state administration. The author also provides summary overview of organizational structure of the state administration for every level of state administration in Bosnia and Herzegovina in particular. The purpose of this paper is to establish basic characteristics of state administration based on analyzing administrative-organizational legal frame and to determine proposals for de lege ferenda organization of the issue of subject.
Оцјењивање државних службеника као обиљежје права на рад у уставном систему Босне и Херцеговине
Оцјењивање државних службеника као обиљежје права на рад у уставном систему Босне и Херцеговине
(Assessment of Civil Servants as a Marking of the Right to Work in the Constitutional System of Bosnia and Herzegovina)
- Author(s):Radislav Lale
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:153-194
- No. of Pages:42
- Keywords:Right to work; A civil servant; The evaluation; Consequences of assessment; The progress;
- Summary/Abstract:The paper deals with the analysis of the positive regulation of the system of evaluation of civil servants in the institutions of Bosnia and Herzegovina, as an important instrument of human resources management, starting with the recruitment and introduction of a civil servant to training, promotion and remuneration. The author gives explanations of the concept, types and basic characteristics of the system of assessment of civil servants, and special attention is paid to the consequences of the evaluation of civil servants. The author concludes that termination of employment of a civil servant, in case of negative evaluation twice, is a too severe sanction because it directly threatens the stability of employment, as well as the principle of material and social security of the employee. This is especially because the system of evaluation of civil servants in the institutions of Bosnia and Herzegovina is also characterized by the potential subjectivity of the superior in the evaluation process, and this opens very wide opportunities for various abuses by the supervisor conducting the evaluation. In this case, considers that it is necessary to introduce some other forms of professional training of the civil servant (various trainings, courses, etc.), as well as to improve the procedure of cooperation of the superior and the civil servant, all with the aim of identifying and eliminating the causes that lead to his / her negative assessment.
Људска права у Босни и Херцеговини (кроз призму односа Устава Босне и Херцеговине и Европске конвенције за заштиту људских права и основних слобода)
Људска права у Босни и Херцеговини (кроз призму односа Устава Босне и Херцеговине и Европске конвенције за заштиту људских права и основних слобода)
(Human Rights in Bosnia and Herzegovina (Through the prism of the relationship between the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms)
- Author(s):Sanja Kreštalica
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law
- Page Range:195-215
- No. of Pages:21
- Keywords:European Convention on Human Rights; Human rights; Constitution of Bosnia and Herzegovina; Ratification;
- Summary/Abstract:The European Convention on Human Rights occupies a significant place in the legal system of Bosnia and Herzegovina. Its significance and legal force in the internal order of Bosnia and Herzegovina derive from the Constitution itself. However, the constitutional rules are not clearly defined. The main dilemma that the paper points out concerns the rank that the European Convention on Human Rights has in the hierarchy of legal acts in the legal order of Bosnia and Herzegovina. The dilemma is mainly reduced to the question whether the Convention has a supra-constitutional character, or it is an act of greater legal force than the law, but less than the Constitution. This issue, which is extremely important, has so far received insufficient attention in scientific circles. Although it is unique in Europe in terms of its solution, numerous studies on the status of the European Convention in the internal legal orders of the signatory states do not pay enough attention to the solution in Bosnia and Herzegovina. Therefore, emphasizing the importance of the Convention in the internal order of Bosnia and Herzegovina, the author seeks to contribute to resolving the controversy over the interpretation of the Constitution of Bosnia and Herzegovina and its relationship to the Convention. Analyzing the disputable parts of the Bosnia and Herzegovina Constitution, and the arguments of two groups of theorists who observe the relationship between the Convention and the Constitution exclusively from the internal, constitutional aspect, the author concludes that when one tries to find the answer to this question it is necessary to consider the effects of the ratification. Our goal is to show that on the line between the two extremes to which the domestic theory is prone, there is still a solution that is closest to the Austrian model, and according to which the European Convention in the domestic legal space of Bosnia and Herzegovina actually has the rank of a constitution.
Уговорни капацитети Босне и Херцеговине и ентитета у свјетлу правила међународног уговорног права
Уговорни капацитети Босне и Херцеговине и ентитета у свјетлу правила међународног уговорног права
(Treaty-making Capacities of Bosnia and Herzegovina and Its Entities in the Light of Rules of International Treaty Law)
- Author(s):Sanja Kreštalica
- Language:Serbian
- Subject(s):International Law
- Page Range:219-243
- No. of Pages:25
- Keywords:International treaty; Treaty-making capacity; Federal units; Vienna Convention on the Law of Treaties;
- Summary/Abstract:This paper is devoted to the in-depth examination of the existing rules of international treaty law specifically related to the treaty capacity of a compound state. The author intends to shed light on the controversies surrounding the issue of treaty-making capacities of federal units, as entities within a compound state. Consulting the legal theory, followed by the positive solutions contained in the Vienna Convention on the Law of Treaties, and finally the practice of states, the author seeks to find a way and point out the regularities in providing answers to this deeply controversial question. Finally, the author deals with the solutions contained in the legal order of Bosnia and Herzegovina, as a state that represents a kind of a federal state with some important peculiarities. The author concludes that the answer to the question of whether and when federal units possess the treaty-making capacity in the international legal system cannot be given if the specifics of the internal organization of a particular state are not taken into account. Finally, the state does not live in a legal vacuum but stands side by side with others on the international scene.
Финансирање институција Босне и Херцеговине
Финансирање институција Босне и Херцеговине
(Financing of the Institutions of Bosnia and Herzegovina)
- Author(s):Đorđe Marilović
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Public Finances, Fiscal Politics / Budgeting
- Page Range:247-266
- No. of Pages:20
- Keywords:Finincing; Institutions of Bosnia and Herzegovina; Grants; Contributions; Agreement; Constitutional Power Transfer; Indirect taxes;
- Summary/Abstract:The aim of this paper is to analyze the development of financing of the institutions of Bosnia and Herzegovina over the past 25 years, primarily through the study of previously unpublished legal sources and documents crucial to the 2003 reform of the B&H institutions’ funding. Since 1995, the financing of B&H institutions had been based on the entity grant/contribution principle, which has later been modified by the conclusion of the 2003 Agreement on Responsibilities in the Field of Indirect Taxation. The Agreement has never been published, and it was only after receiving the text that it was officially made possible to review it in this paper.The author considers financing of the B&H institutions in the context of the goals and hypotheses of the Project “Constitutionalization of Bosnia and Herzegovina”, primarily those related to the organization of B&H and the revision of the B&H Constitution. The changes concerning financing of the B&H institutions were carried out under strong external political pressure. Nevertheless, consensual decision-making made a significant impact on these changes, which is reflected not only in the agreed transfer of responsibilities in the field of indirect taxation, but also in the harmonization of fiscal policies in B&H through the work of the Fiscal Council of Bosnia and Herzegovina. By analyzing the emergence of the present-day financing system of B&H institutions, the author sheds light on issues related to new financial policy makers in relation to the original fiscal and budgetary policy makers in B&H, and seeks to provide a thorough understanding of institutes that may be key to future research in other fields, such as economic theory of fiscal federalism.
Однос пореских система у Босни и Херцеговини
Однос пореских система у Босни и Херцеговини
(Relationship Between Tax Systems in Bosnia and Herzegovina)
- Author(s):Đorđe Marilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Fiscal Politics / Budgeting
- Page Range:267-292
- No. of Pages:26
- Keywords:Tax System; Bosnia and Herzegovina; Entities; Competences; Indirect taxation; Indirect taxation authority in B&H; Double taxation;
- Summary/Abstract:Relations and correlations between existing legal tax systems in Bosnia and Herzegovina originate from the distribution of constitutional competences in B&H and numerous unresolved legal dilemmas concerning criteria for the distribution of tax competences. The author based this research on hypotheses put forward in the Project “Constitutionalization of Bosnia and Herzegovina”, firstly the hypothesis that numerous revisions of the B&H Constitution and redistribution and transfer of constitutional competences between, on the one hand, entities Republic of Srpska and Federation of Bosnia and Herzegovina, and B&H on the other, have not changed the legal nature of the entities. Furthermore, previously tested hypothesis on existence of four tax systems in B&H, three of which are direct taxation systems and one indirect taxation system, is regarded as the second hypothesis in the article. Third hypothesis refers to present implementation of legal norms on competence distribution, which proves to be contrary to the B&H Constitution. That includes present approach to conclusion and implementation of treaties for the avoidance of double taxation, as well as enactment of laws that spell out taxation of transactions of rights in rem over immovable property, without permission from the Governing Board of Indirect Taxation Authority in B&H. Author concludes that various legal uncertainties date back to the time of constitution of Brčko District Tax System and Indirect Taxation System. Conducted analysis supports these findings.
