Un Committee for Civic and Political Rights

UN COMMITTEE FOR CIVIC AND POLITICAL RIGHTS

IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Subject: List of answers to inquiries concerning deliberation of the Initial Report of Bosnia and Herzegovina in respect to rights referred to in Articles 1-27 of the International Covenant on Civic and Political Rights (CRPC/C/BIH/1)

Covenant Implementation Constitutional and Legal Framework (Article 2 and 4)

1. What is the status of the Covenant in domestic legislation at State, Entity Cantonal and Municipal levels?

Following the notification on succession, Bosnia and Herzegovina included the International Covenant on Civic and Political Rights into its legal system, to which the former Socialist Federal Republic of Yugoslavia was signatory, pursuant to the Law on Solving Inconsistence of Domestic Law with Other Countries’ Regulations in Specific Relations (“Official Gazette of RBiH”, No. 2/92). As the undertaken International Covenant is the integral part of the Constitution of Bosnia and Herzegovina, as well as of Entity and Brčko District Constitutions, provisions of the Covenant has the legal standing of Constitutional provisions and are applied directly in situations when domestic legislation does not regulate certain issues. The Dayton Peace Accord Annex I point 7 refers to the above International Covenant, thus proving the legal power of the Constitutional provisions. As mentioned further, the provisions of the above Covenant are to be applied by all organs, organisations and courts in Bosnia and Herzegovina in each and every specific case, especially in situations when domestic legislation lacks elaboration of certain Covenant stipulations.

The Constitution of Bosnia and Herzegovina Article II point 1 reads as follows: “Bosnia and Herzegovina and its two Entities will ensure the highest level of internationally recognised human rights and fundamental freedoms. For that purpose, The Human Rights Committee is to be set up, as provided for under the General Framework Agreement on Peace Annex 6.”

The Article IV of the Constitution of Bosnia and Herzegovina refers to the competences and structure of the Constitutional Court of Bosnia and Herzegovina. The Constitutional Court is the only authority competent to make decisions on, but not limiting to, any dispute to arise between two Entities, between Bosnia and Herzegovina and one or both Entities, or between institutions in BiH.

Further on, the Constitutional Court has the second instance competence in ruling over disputes caused by decision of any other court in Bosnia and Herzegovina. It is competent in matters referred to it by the Court of BiH in respect of consistency of a specific applicable law with the Constitution of BiH, European Convention on Human Rights and Fundamental Freedom and its Protocols, or with other BiH legislation, or in view of the existence and extent of a general rule of the International Public Law relevant for the Court decision. Awards of the Constitutional Court are final and bound.

The Constitution of Bosnia and Herzegovina Annex I contains the list of Agreements on Human Rights to be applied in Bosnia and Herzegovina, including, inter alia, the International Covenant on Civic and Political Rights (1966) and Optional Protocol (1966 and 1989). Even thought the Constitution of BiH is not explicit that these agreements will be implemented directly, as the case with the European Convention for Protection of Human Rights and Fundamental Freedoms, it is our understanding that there are no obstacles for them to be referred to directly by Courts, notwithstanding the fact that such provisions, including the International Covenant on Civic and Political Rights, are largely incorporated into the legislation of Bosnia and Herzegovina, Entities, Cantons and Municipalities.

1. Please provide information on Draft Law on Ombudsman of Human Rights of BiH (Report paragraph 180 ). Indicate the extent to which proposals are in/compatible with the Paris Principles concerning the status and functioning of national institutions for protection and promotion of human rights (GA Res A/48/134 of December 20, 1993).

In accordance with the UN General Assembly Paris Principles point 3, in connection with points 2, 4, 6 and 7 (A-Res-48/134 of December 20, 193), and with a view at as effective as possible human rights protection and promotion, it was determined that member states should be assisted in establishment and strengthening of human rights promotion and protection state institutions.

Pursuant to the Paris Principles relating to the status and functioning of State institutions for human rights protection and promotion, the Institution of Ombudsman for Human Rights was established in Bosnia and Herzegovina. Based on Constitutional provisions, the Institution started with work in 1996 for the protection of human rights and rule of law in Bosnia and Herzegovina.

The Ombudsman for Human Rights in BiH was established with the aim at promoting good governance and rule of law and protection of rights and freedoms of natural and legal persons in Bosnia and Herzegovina. From its establishment to end 2003, a foreigner headed the Institution, and three domestic Ombudsmen took over the function in January 2004. Other than the main Institution of Ombudsman in BiH, Ombudsman for Human Rights as an institution also functions in Entities: Ombudsmen in Federation of BiH and Ombudsman in Republika Srpska - Human Rights Protector. They are responsible for investigating cases of poor governance and human rights violation committed by authorities in their respective Entities. Each institution has three ombudsmen.

These three institutions of Ombudsman cooperate closely in coordination of the Ombudsman for Human Rights of Bosnia and Herzegovina.

Consistently with this, Bosnia and Herzegovina is due to perform many obligations in its road to European Union and other Euro-Atlantic integrations, and many activities have been taken and they continue to be taken on restructuring the existing institutions of Ombudsman in Bosnia and Herzegovina, including needed amendments to legal and legislative framework, as well as various solutions regulating this area. These activities have been undertaken primarily for the reason for making this Institution operate more rationally and effectively throughout Bosnia and Herzegovina.

With this aim and following the existing procedures, the Law on Amendments and Supplements to the Law on Ombudsman for Human Rights in Bosnia and Herzegovina was adopted by the Parliamentarian Assembly of Bosnia and Herzegovina, in March 2006. The Law took effect eight days following its publication in the “Official Gazette of BiH” No. 32/06 on April 25, 2006.

The above Law regulates the work of the Institution of Ombudsman for Human Rights in Bosnia and Herzegovina main office, and the innovations are: the institution of public announcement in the process of Ombudsman selection; identified requirements for serving the function of Ombudsman, including the level of remuneration, resignation and termination of service and other issues important for the function of the institution Ombudsman; elaboration of ways of cooperation with Ombudsman, reflected in the principle of personal contact with parties in investigation processes; provision that racial, ethnic, religious, social, gender, political, age or other background bear no relevance to tasks distribution criteria; further explanation of the way of selection of staff and financing of the Institution, with submitting proposal financial plan, as a basis for approval of funds needed for operation, which is the common procedure for all budget users, but in no way would influence the independence of the Institution; restructuring the institution of Ombudsman, introduction of provisional Ombudsman and deputy Ombudsman; in the provisional period, identification of ways reduction of staff and field offices of the main and Entity institutions; termination of office or introduction of Ombudsman, deputy Ombudsman, advisor to Ombudsman or a staff member, following new appointments and structuring, in compliance with the principle of cost-efficiency and rationality; determination of ways of cooperation between the main and Entity institutions of Ombudsman and; joint preparation of acts and implementation of joint initial frameworks for future operation of the institution of Ombudsman in Bosnia and Herzegovina.

A deadline was set for Entity Ombudsman institutions to harmonise their existing legislation with the above Law and adopt appropriate legislation to the effect of termination of Entity Ombudsman offices by which their competences should be passed on to the Institution of Ombudsman for Human Rights of Bosnia and Herzegovina.

Reports of the Institution of Ombudsman for Human Rights of Bosnia and Herzegovina and Entity institutions suggest that citizens of Bosnia and Herzegovina have addressed to it for the protection of their rights, based on all foundations guaranteed udder the International Covenant on Civic and Political Rights.

The Draft Law on Amendments and Supplements to the Law on Ombudsman for Human Rights in Bosnia and Herzegovina Article 1 point 4 proposes the setting up of a separate organisational units for monitoring of implementation of rights of child, rights of disabled persons, rights of national minorities, religious and other rights.

Reports and other findings from competent institutions prove the existence of the Institution of Ombudsman for Human Rights in BiH justified. This Institution is capable to deal with issues guaranteed in the Covenant, in addition to other issues. Bosnia and Herzegovina undertakes to restructure this Institution, because, due the present financial conditions, the current organisation as such needs to be more rational also for the sake of its development in accordance with the international rules and standards.

Discrimination against Women and Family Violence (Article 2(1), 3, 7, 26)

1. Does the Law on Gender Equality cover the special cases of gender discrimination in society, as mentioned in Report paragraph 23, or it is just focuses to denial and diminishing of rights based on gender by the State? Please, clarify special measures for overcoming de facto discrimination of women provided for in the Law on Gender Equality and supply cases of successful implementation of such measures.

In the premise that the Constitution of BiH and Entity Constitutions provide for gender equality as one of the basic human rights, the definition of discrimination included in the Law on Gender Equality in Bosnia and Herzegovina enables directly an easier recognition of practical situations where, based on gender, an individual is treated differently.

This Law regulates, promotes and protects gender equality, and it guarantees equal opportunities to all citizens, both in their public and private life. Article 2 of the Law reads as follows:

“Genders are equal.

A full equality of genders is guaranteed in all spheres of society, and especially in the area of education, employment and work, social and health care, sports, culture, public life and media, regardless of one’s marital or family status.

Discrimination against gender and sexual orientation is proscribed.”

The Law on Gender Equality in Bosnia and Herzegovina Article 25, paragraph 1 gives a double authorisation to the Gender Centre of Federation of Bosnia and Herzegovina and Gender Centre of Republika Srpska, respectively, to make inquiry into individual cases of breaching of the Law, upon request by Ministries, citizens, NOGs or on their own initiative. Article 2 of the same Law emphasises that the Gender Centre of Federation of BiH and Gender Centre of Republika Srpska respectively, would report on their analyses and investigations into breaching of this Law and make recommendations to competent authorities and other concerned parties, while paragraph 5 of same Article 2 establishes that both Gender Centre of Federation and Gender Centre of Republika Srpska should elaborate detailed procedures of their work, by developing their respective Rules of Procedure.

In that sense and as a support to the process of investigating individual cases of gender discrimination, the Article 16 of the Law on Gender Equality in Bosnia and Herzegovina sets forth an obligation for all competent authorities and other State institutions, employers and other legal and natural persons to provide all needed information and allow the insight into their documentation, within 15 days at latest upon request by the Agency, Gender Centre of Federation of BiH and Gender Centre of Republika Srpska.

In furtherance of authorisations vested to it, under the Law on Gender Equality in BiH, i.e. by the operation of Article 25 of mentioned Law, the Gender Centre of Republika Srpska developed the Rules of Procedures for Investigation of Breaches of Law on Gender Equality in BiH, regulating the procedure and other issues in relation to investigation by the Gender Centre of breaches of the Law. The Gender Centre will investigate violations of provisions of the Law on Gender Equality in Bosnia and Herzegovina and of gender equality principles contained in the international documents in force in Bosnia and Herzegovina on the part of public administration, sub-State institutions, natural or legal persons. As to results of its investigations, the Gender Centre of Republika Srpska prepares recommendations, reports and conclusions to provide them to the parties in procedure, competent authorities and other interested parties. The Rules of Procedure is currently in the adoption procedure by the Government of Republika Srpska.

Provisions of the Article 25 of the Law should be viewed in the light of non-existence of an Ombudsman for Gender Issues, even a related division within the existing Institution of Ombudsman for Human Rights in Bosnia and Herzegovina, and in the light of investigations into individual cases of gender discrimination, as efforts to fill the existing gap in that part of human rights protection, i.e. to have a complete protection.

Since 2002, citizens of Bosnia and Herzegovina have possibility to address directly to CEDAW Committee in order to get protection and a just compensation for the gender discrimination they experienced. Now, with the elaboration of the Law on Gender Equality in BiH, its Article 25 allows citizens to address to domestic bodies, as well, namely, the Gender centre of Republika Srpska and soon the Gender Centre of Federation of BiH, and obtain a recommendation in their favour in cases of breach of gender equality principles stipulated in the Law and international documents ratified by Bosnia and Herzegovina.

As to special provisional measures aimed at overcoming de facto discrimination against women, a provision is made under the Law on Gender Equality of Bosnia and Herzegovina in Article 3 point 5 and 6 as follows:

“A norm, criterion or practice which is possible to justify objectively by achievement of a legal goal or proportionally undertaken necessary and justifiable measures are not considered as acts gender discrimination.”

Positive examples of reference to special provisional measures in Repblika Srpska can be fond in some laws, brought into conformity with the Law on Gender Equality in Bosnia and Herzegovina, such as:

-Law on Employment (“Official Gazette of Republika Srpska”, Nos. 38/00, 85/03 and 42/05);

-Law on Professional Rehabilitation, Skill Development and Employment of Persons with Disabilities (“Official Gazette of Republika Srpska”, No. 98/04).

Same as the Law on Gender Equality in BiH, these Laws allow for application of special provisional measures aiming de facto equality, i.e. elimination of inequality.

A special provisional measure in view of improvement of women’s representation ratio in politics, in form of quota-system, was incorporated in the Election Law of Bosnia and Herzegovina, in 2000. New elections, scheduled for October 1, 2006, will test the consistency in respect for women’s rights and their participation in the political life, as the election results will be subject to an analysis.

In asserting legality of administrative enactments by institutions of Bosnia and Herzegovina, the Court of B-H Administrative Division deliberates on justifiability of claims filled by women in cases when their employment rights are violated. Following the principle of respect for all employment criteria and upon applicants’ objections, this Court takes care also on gender representation, accepts such claims, as the case may be, and orders administrative bodies to take into consideration the gender structure of their institutions.

1. Please provide detailed information on measures for fight against family violence provided for in the Law on Protection from Family Violence and in the new Family Law (paragraph 28), as well as on kind and effectiveness of the measures undertaken for fight against family violence, which is reported to be present in every fourth family in the State (Report paragraph 40)

The Law on Protection from Family Violence Article 7 stipulates an obligation to all citizens, family members, health and social workers, teachers, educators, medical and education institutions and bodies and NGOs, to report family violence to the competent police administration immediately upon learning of it, with a special obligation of reporting in case of victim being underage. It also lists institutions and officers responsible for initiating the legal procedure.

Non-reporting of family violence is an offence.

The Law provides for protective measures for protection from violence in family and against its victim members and securing of healthy and harmonious life within a family, as a pillar of every society and for the respect of the Law.

Under the Article 9 of the Law, violence perpetrators can be ordered the following protective measures:

• distancing from flat, house or some other residential premises and ban to returning to that flat, house or other residential premise;
• ban on approaching the victim of violence;
• provision of protection of an individual exposed to violence;
• obligatory psychosocial treatment,
• obligatory medical treatment of addiction.

The protective measure of distancing from flat, house or some other residential premises and ban to returning to that flat, house or other residential premises can be ordered for a period not shorter than one month or longer than six months. It is ordered in cases when an individual committed violence against a family member living with the perpetrator in the same flat, house or other residential premises and a court considers that the violence might be repeated. The perpetrator who was ordered such measure is obliged to leave the flat, house or other residential premises immediately and, if needed, this measure can be enforced with the presence of police officers.

The protective measure of ban of approaching the victim of family violence is ordered for period not shorter than one month and longer than one year. This measure is ordered to perpetrator when a court estimates that a danger is real that the act of violence might be repeated. Court orders such measure ex officio.

The protective measure of provision of protection of an individual exposed to violence and whose life is in danger can be ordered for an individual exposed to violence and with the aim at physical protection and enjoyment of rights and interests of such individual without a fear or danger to life.