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Mato Arlović orcid id ; Ustavni sud Republike Hrvatske,

Puni tekst: hrvatski pdf 146 Kb


str. 25-57

preuzimanja: 1.894



Constituency of the people of Bosnia and Herzegovina (BiH) is in its nature a
very complex multidisciplinary issue. It is expressed as a cultural, historical, political, but
also constitutional right, which in complex social relations is not only an essential element
of the state of BiH but also one of the cultural-political categories which is unavoidable
in the constitutional arrangement of BiH as a modern European country that follows and
accepts the European cultural, sociological, political-legal common heritage based on democracy, the ideals, principles and goals of liberty, the rule of law, the protection of human
rights and freedoms, including the rights and freedoms of members of national and other minorities and of every human being, respecting its human dignity.The constitutional
arrangement contained in all three constitutions (in the Constitution of BiH, the Constitution of the Federation of Bosnia and Herzegovina and the Constitution of the Republic
ofSrpska) has accepted the constitutionality of the three peoples (Bosniaks, Croats and
Serbs) as one of the essential settings from which it is based and on which it rests. However, there are considerable differences in the arrangement, which cause controversy in the
interpretation of their constitutional status and at the formal but also functional level of
understanding and interpretation of constitutional texts.If to this are added the substantial constitutional ambiguities, including the constitutional gaps, notably with respect to
the status of national minorities and the rights and freedoms of their members on the
issue of representation - representation at all levels of government and management in
Bosnia and Herzegovina, it is understood to what extent this presents the problem in this
state today.Some of these open questions have been interpreted and solved by the the
Constitutional Court of BiH and the European Court of Human Rights by their decisions.
However, they were not, despite the efforts, and the agreements reached, through necessary amendments implemented in the BiH Constitution.However, some modifications
have been made through amendments, but only in the constitutions of the Entities, and the
most significant of them, are actually imposed on the Entities as necessary, justified and
necessary by the High Representatives of the International Community. Although they are
done by calling for the implementation of U.5 / 98 of the Constitutional Court of BiH, there
is a justified question as to what extent these amendments have been implemented, and in
particular, the views of the Constitutional Court in the reasoning in the decisions on these
issues.In fact, there are well founded and justified opinions that some amendments (especially on the Constitution of the Federation of Bosnia and Herzegovina) violated the principle of equality and constituency of Croats as a constituent people within the entity of FBiH,
and that the opinion of the Constitutional Court on the equality of all three constituent
peoples in BiH Constitution have not been carried out by the changes and additions;it is
not necessary to prove this either.A similar situation exists with issues related to the status of national minorities, the exercise and protection of the rights and freedoms of their
members, and the implementation of the decision of the European Court of Human Rights.
This does not have to be specifically proven, simply because the revision of the BiH Constitution has not been done so far. Following these questions, and within them, especially
the issue of constitutionality of the three peoples, Bosniaks, Croats and Serbs and their
equality, the amendments to the Constitution has become a first-rate question, not only in
formal but in functional terms. In addition, it has become one of the key questions: which
model, ethnic, civil or mixed, should be taken as the basis of constitutional arrangement of
BiH?Incidentally, it opened the problem of reaching an agreement and its implementation
on the revision of the constitutional order of Bosnia and Herzegovina (amendments to the
Constitution of BiHand the Constitution of the FBiH and the RS Constitution). The issue
of revision of the Constitution of BiH itself (and constitutions of entities) has become not
only the constitutional but also the political issue of BiH. It has been dealt by political elites
in BiH, but also by the international community, politicians, sociologists, lawyers and many
others, both in theoretical and practical issues. Why? Because the current vagueness, incompleteness, and even mutual incompatibility (regardless of the reasons why this is so)
constitutional arrangement in BiH has become the brake of social development, but also
a potential neuralgic point that can endanger such a fragile peace, security and stability
in the country.In addition, the current constitutional arrangement is incompatible with the
acquis communautaire, i.e. it is not sufficiently based on a common European cultural and
political legacy, nor, through the content of constitutional texts, consistently implemented,
and it is an ineffective constitutional foundation upon which the constitutional order of BiH
should be based and is valid for accession to the European Union.
Therefore, the constituency of the people of BiH today has become a matter of paramount
importance both internally and internationally for BiH, its peoples, national minorities and
all citizens. I will expose my reflections in this paper on some of its aspects relevant to the
constitutionalisation of BiH as a European country.

Ključne riječi

constitutive peoples; equality; equal rights; national minorities; constitutionality; constitution; representativeness.

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