INTERNATIONAL CONFERENCE

Achievements in the field of human rights ten years after Dayton

Sarajevo, 10 and 11 May 2005

As part of the project “Achievements in the field of human rights ten years after Dayton”, the Helsinki Committee for Human Rights in Bosnia and Herzegovina organized a two-day international conference in Sarajevo on 10 and 11 May 2005. Over 60 representatives of the authorities, the international community – the OHR, OSCE, UNDP and embassies, the non-governmental sector, prominent individuals from the public, political and academic life, as well as media representatives, participated in the conference.

Through three presentations and discussions, the conference analysed the implementation of the Dayton Peace Agreement over the past ten years, and the approach of the authorities and the civil society to implementation of this agreement.

The role of the international community as a guarantor for implementation of the Peace Agreement was discussed, and the relationship between the Agreement and the European Convention on Human Rights and Fundamental Freedoms, as well as other international conventions referred to in the Dayton Agreement, were examined with a particular reference to practices and strategies in Bosnia and Herzegovina (BiH).

The BiH Constitution was critically analysed as an actual stumbling block for further steps of BiH towards the European and North Atlantic structures and accession to the European Union (EU).

Finally, potential directions for action and creation of conditions for a more efficient democratisation of the society, particularly from the aspect of human rights, were identified.

The Dayton Peace Agreement from 1995 and its 11 annexes stopped the war in BiH. Annex IV, which is the BiH Constitution, obliges the authorities of Bosnia and Herzegovina to accept 16 international conventions and declarations on human rights and liberties, while the European Convention on Human Rights and Freedoms, as well as its protocols, are to be applied directly and to have supremacy over Bosnian legislation.

By means of Annexes III, VI and VII, which are also related directly to human rights and liberties, the authorities of BiH have accepted arrangements requiring right to fair and democratic elections in BiH, return and protection of all refugees and displaced persons, mechanisms for protection of human rights through establishment of the Human Rights Commission consisting of the Human Rights Chamber and the Ombudsman.

The High Representative for BiH was appointed in accordance with the Dayton Peace Agreement, with a mandate to supervise implementation of the civil aspect of the Dayton Agreement and to be the final authority for its interpretation.

Through the Venice Commission, the European Union ensured monitoring of the implementation of the BiH Constitution, the General Framework Agreement and its Annexes.

The majority of both local and international analytical studies and reports have stressed that the situation in the field of human rights in BiH was not at the required level, in relation to the framework of the Dayton Peace Agreement. This conclusion remains valid despite the fact that certain laws related to human rights were adopted in the past period: the Law on Protection of Rights of Minorities in BiH, the Law on Gender Equality, the Law on Religious Communities, the Electoral Law, the Law on Property Return, the Law on Freedom of Access to Information. However, these laws have not been evenly implemented in practice, while some have not been implemented at all. Relevant by-laws are lacking, while the budget means for implementation of these laws have not been provided either. Finally, the cantonal and entity-level laws are, in many cases, not harmonized with laws adopted at the state level.

I

The signing of the Peace Agreement in 1995 stopped the war. Although the agreement provisions stipulate application of the top human rights standards, the first years of its implementation were marked by political manipulation with the purpose of preservation of the current situation, not at all with the objective of making any progress in BiH.   

The conference assessed the first two years after the signing of the Dayton Peace Agreement, 1996 and 1997, as a time lost. During that period, the freedom of movement of persons was limited, return of refugees and displaced persons made impossible, property return did not yield any results, the judiciary was not independent. The two entities’ constitutions were not harmonized with the Constitution of BiH, nor were the entity-level laws harmonized with the European Convention on Human Rights. This period was characterized by a strong presence of the US administration and absence of the EU, post-conflict problems, and a high level of intolerance.

The beginning of the implementation found BiH divided into two entities and three political wholes. The international community focused all its efforts on implementation of the military part of the Agreement. Regardless of the end of the war, the ethnic cleansing continued. Around 500 Bosniaks and Croats were expelled from the Banja Luka region in the first two months of the Peace Agreement implementation. There was mass exodus of local Serbs from the part of Sarajevo previously controlled by the Serb forces during the war, which was given to the Federation of Bosnia and Herzegovina (FBiH) in Dayton.

The Human Rights Chamber started to operate seven months after the signing of the Peace Agreement, while the Commission for Property Return Claims of Refugees and Displaced Persons started to work only after the September elections in 1996. There was no freedom of movement whatsoever, either across the inter-entity borderline or within the FBiH. The return of persons and property was obstructed.

Much more was achieved during the first several months of 1998 than it was in the two previous years. A common currency came into use, the common vehicle number plates were introduced, the railways and air traffic started to operate, as well as the phone lines. After insisting of the OHR, the Republika Srpska (RS) People’s Assembly adopted decisions abolishing discriminatory provisions in the field of property and housing rights. Pressure was also made on the FBiH government to correct regulations in this field. Death penalty was abolished in the FBiH.

The lack of rule of law is one of the characteristics of this period. In many parts of BiH, the judiciary was under direct political control, without any democratic public oversight. The executive branches of the government were superior to the judiciary. During 1998, the laws were only partly harmonized with the European Convention on Human Rights. It should be added that political representatives, particularly those in the RS, did not even think of cooperation with the Hague tribunal.

An important achievement in 1999 was the beginning of establishment of multi-ethnic police in both entities, their joint exercises, even operations, which will contribute to better return results. Still, the constitutions of BiH, RS and FBiH were not harmonized with the European Convention and international standards in the field of individual citizens’ rights. The BiH Constitution of Bosnia and Herzegovina reduced the active and passive voting rights, preserving primacy of collective over individual rights of citizens. The FBiH Constitution was discriminatory against those who are not Bosniaks and Croats. Although the BiH Constitution affirmed equality of all three ethnic groups and all citizens on the territory of Bosnia and Herzegovina, the RS Constitution did not recognize the constituent status of Croats and Bosniaks in that entity. Under international pressure, death penalty was abolished in the RS too. 

The Commission for Property Return Claims of Displaced Persons and Refugees established by the Dayton Agreement adopted 65,000 decisions on return of apartments and property by the end of October 1999. However, a great number of these decisions were not implemented.

Problems were observed in the implementation of local elections results.

Rapprochement with the EU became the strategic goal of the state authorities, the BiH Council of Ministers and the BiH Parliamentary Assembly. It was first the BiH Council of Ministers that launched an initiative for membership of the EU in March 1999. After this decision of the state government, mostly due to the Kosovo crisis, Brussels made a turning point in its attitude towards the region. The BiH Parliamentary Assembly also reacted to the strategic initiatives for commencement of the Stabilization and Association Process and the Stability Pact for Southeastern Europe. At the session of 8 August 1999, the Assembly demonstrated its commitment to the European way, passing the Resolution on European Integration and the Stability Pact. These two decisions represent the first expression of political will of executive and legislatives branches of government in BiH. Apart from their declaratory character, they obliged all BiH institutions to work on harmonization of national legislation with European standards.      

Assessing the first two years of implementation of the Dayton Agreement, the participants of the conference easily agreed that this was a period of slow creation of conditions for freedom of movement of persons, presence of great obstructions in the private property return, lack of inter-entity cooperation, lack of harmonization of entity constitutions with the state constitution, lack of rule of law, delayed judicial reform, unsatisfactory cooperation with the Hague tribunal, etc.

II

Participants of the conference tried to find reasons for such a situation and identify the main causes that led to the irresponsible attitude of the authorities towards implementation of obligations accepted, especially in the field of human rights.

It was concluded that the Dayton Agreement had institutionalised collective rights and had killed every individualism, it had favoured the ethnic principle at the expense of civic principle, and delayed building of the civil society. Nationality [ethnicity in this context, translator’s note] became the primary political category. Existence of several unrelated legal systems, state, entities and cantons, was confirmed. Functioning of the judiciary at the state level was disabled, and an expensive, complicated and inefficient state apparatus was formed. Judges were not independent.

A particular problem is the fact that the BiH Constitution, as the top legal act of the state, is only an annex to the Peace Agreement. All weaknesses of the Dayton Agreement were directly reflected on the situation in the field of human rights in BiH. Its military component was emphasised in the implementation at first, which resulted in delays in and neglect of implementation of the civil part of the Agreement. No one even mentioned the economic, social and cultural rights, as the second generation of human rights, at that time.      

III

From this state, BiH further moved on to a phase dominated by the transition-related problems, establishment of new and building of existing state institutions. The second phase is also characterized by weak interest of the United States in reforms in BiH, their gradual withdrawal from the region and an increasing interest, financial and political engagement of the EU, intensified regulation of property rights, BiH judicial reform, reform of the institutions of ombudsmen, the beginning of cooperation with the Hague tribunal, etc.

In March 2000, only nine months after commencement of the Stabilization and Association Process and the Stability Pact for Southeastern Europe, the Council of Ministers of the EU presented the first list of requirements for Bosnia and Herzegovina. The official Sarajevo received 18 guidelines of the Roadmap as conditions for drafting of the Feasibility Study for start of negotiations on signing of the Stabilization and Association Agreement with the EU. Out of 18 Roadmap guidelines, five were related to human rights and democracy:

1. Implementation of property laws,

2. Creation of conditions for sustainable return,

3. Creation of conditions for functioning and implementation of decisions of human rights institutions,

4. Adoption of laws on court and judicial service in the entities,

5. Public broadcasting service for BiH and the entities.

Seven conditions were political conditions, some of these were indirectly related to the democratisation of the society and respect of human rights. The six remaining conditions were economic requirements. The Feasibility Study drafting followed. The BiH institutions received 346 questions from Brussels, tens of which were related to the situation in the field of human rights.

A conditionally positive assessment of the Feasibility Study was announced in November 2003. BiH was tasked with additional conditions, 16 priority areas, at least three of which are directly or indirectly related to human rights: fulfilment of international obligations, respect of human rights and efficient judiciary.

Apart from the 18 guidelines from the 2000 Roadmap and the 16 priorities from the Feasibility Study, the EU published, in March 2004, as part of the Thessalonica Summit Conclusions, the first report on the European Partnership containing short-term and mid-term priorities for BiH. Some of these priorities are compatible with the previous EU guidelines for BiH. The short-term priorities were: adoption of the law establishing High Judicial and Prosecutorial Council of BiH, financing and staffing of the BiH State Court, adoption of law on BiH Refugee Return Fund, finalization of transfer of human rights institutions under the jurisdiction of BiH, resolving of unresolved cases of the Human Rights Chamber and transfer of its competences to the Constitutional Court.

The mid-term priorities were: taking over full organization and financial responsibility for the 2006 elections, ensuring equal standards for appointment, promotion, discipline and training of judicial and prosecutorial staff in the whole of BiH, ensuring full responsibility of BiH for the State Court of BiH, the State Prosecutor’s Office of BiH, the BiH High Judicial and Prosecutorial Council as regards financing, management and staff, ensuring a level of protection of human rights comparable or higher than the one achieved under the international supervision, ensuring full implementation of the Law on Protection of Rights of Minorities in BiH, efficient protection of minority rights, including rights of the Roma population, finalization of the process of return, unification of the State and entity ombudsmen, etc.       

It was stressed that BiH adopted a whole series of laws after the war to harmonise the domestic legislation in the field of human rights with the key international human rights documents. Some of the regulations, which ensured implementation of the 16 international documents added to the Annex VI of the General Framework Agreement for Peace in BiH, were adopted by the BiH parliament, while some were imposed directly by the High Representative.

Ten years after the war and nearing the observance of the tenth anniversary of the signing of the Peace Agreement in Dayton, BiH, i.e. its political representatives promote on daily basis the idea of BiH joining the EU. From the EU side, however, clear signals are being sent that BiH must do a lot more in order to fulfil the conditions for membership.

In the already mentioned Feasibility Study, the EU recognized the progress of BiH in standardization of its legislation in accordance with the Union requirements. And really, if we look back, BiH has in the past ten years done a significant job in democratisation and institution building, starting from a totally destroyed country. There are no more major violations of human rights of citizens by the state bodies. The European Committee for Prevention of Torture did, however, warn last year that the police in BiH often crossed the boundaries of their competences in arrests and suspect interrogations, and that inhuman treatment of mentally ill prisoners was observed in the Zenica prison.

There were no other major violations of human rights in terms of inhuman treatment before the BiH institutions. Nevertheless, it is the standpoint of the international community that BiH must carry out big institutional changes in the field of human rights in order to become a member of the European integration.

The Dayton Constitution of BiH has been promoting equality of the three majority ethnic groups in BiH. Further interventions of the international community contributed to implementation of, at least institutional, equality of ethnic groups in BiH by adoption and imposition of a whole series of regulations, the most important of which are those about the constituent status of the three ethnic groups in the whole of BiH and the additions to the entity constitutions.

However, although BiH has done a lot in the human rights field, the existing legislation needs to be implemented and totally new legislation needs to be adopted in order to alleviate implementation of international human rights documents.

Changes of the BiH Constitution have been mentioned frequently lately. When BiH is discussed in the context of future membership of the EU, the requests for changes of the BiH Constitution become even louder. The argument is that the current constitutional arrangements are not in compliance with European standards.

In any situation, BiH must meet the human rights criteria as set at the Copenhagen European Council in 1993. The first, Copenhagen political criteria require stability of institutions ensuring democracy, the rule of law, respect for human rights and protection of minorities. The second, economic criteria refer to ensuring of conditions for efficient market economy, while the third group of criteria refers to the harmonization of candidate countries’ legislations with the EU law (acquis communautaire).

BiH is a country that has got democratically elected institutions. The problem of the institutional system in BiH is too great a complicity and impossibility of full harmonization of the rights of individuals and the rights of groups.

The Serb representatives in the House of Peoples of the BiH Parliamentary Assembly are elected from the RS, while the Bosniak and Croat representatives are elected from the FBiH. This means that the sources of sovereignty at the state level are in fact the entities, and it is not clear whether the Serb representatives in the House of Peoples represent Serbs from BiH or the entity, and vice versa in case of Bosniaks and Croats in the FBiH. Considering the fact that the RS MPs in the House of Peoples must be of Serb ethnicity at the same time, it is logical that these MPs represent the Serb people. Croats and Bosniaks from the FBiH also, logically, represent these two peoples. However, since the Constitution says that Serb representatives in the House of Peoples can be elected only from the RS territory, while Croat and Bosniak representatives can be elected only from the FBiH, it is very clear that the group (ethnic) representation of Serbs from the FBiH, and Croats and Bosniaks from the RS is breached.

Concerning election of the State Presidency members, the Croat and Bosniak members are elected directly from the territory of the FBiH, while the Serb member is elected from the RS. This means that a Serb from the FBiH cannot run for Presidency, nor can Serbs from this entity vote for the Serb member of the Presidency, and vice versa in the case of Croats and Bosniaks from the RS. Such constitutional provision is contrary to the International Pact on Civil and Political Rights and the European Convention on Human Rights, which form parts of the BiH Constitution.

The latest opinion of the Venice Commission of the Council of Europe recommends overcoming of this situation. The Venice Commission goes as far as to recommend abolition of the state House of Peoples and abolition of the principle of tripartite Presidency.

Further on, the FBiH House of Peoples should consist of an equal number of delegates of constituent peoples of BiH and seven representatives of “Others”. However, since the FBiH House of Peoples representatives are delegated by cantonal assemblies, which do not have enough Serb representatives, the FBiH House of Peoples does not have the constitution-prescribed number of Serb representatives either.

BiH does not only have the problem of the constitution not being fully adapted to European standards, but also has the problem of non-implementation of the existing laws protecting rights of individuals and certain groups. Also, there is direct mutual exclusiveness, both at the theoretical and practical level, of some regulations dealing with protection of human rights.

There are still groups in BiH whose rights are particularly vulnerable and which must be paid special attention. These are rights of national minorities (the Roma minority emphasised), rights of persons with special needs, children’s rights, rights of women and their participation in public life, and sexual minorities’ rights. Further on, BiH has a problem of return of nationalized property.

One of the issues that is not directly on the agenda at the moment, in terms of current EU requirements from BiH, but an issue that will be raised with the BiH authorities, is the status of foreign citizens in BiH (asylum seekers, migrants).

The Law on Protection of Rights of Minorities in BiH was adopted with a purpose to affirm equality of the category of “Others” (as defined by the BiH Constitution). Annex IV of the Dayton Agreement has not offered any guarantees for representation of “Others”. After intervention of the High Representative in 2002, a number of seats were reserved in the entity parliaments for those not belonging to the constituent peoples (four seats in the RS Council of Peoples, seven in the FBiH House of Peoples). “Others” are excluded from the BiH Presidency and the state House of Peoples, i.e. there is no possibility for anyone who does not declare him/herself a Serb, Bosniak or a Croat to be a Presidency member, while the state House of Peoples does not offer any possibility for political representation of “Others”.

At the local level, national minorities were not allowed to propose their candidates, i.e. candidates that would represent national minorities in the local assemblies, until last year. In May 2004, a legal regulation was adopted to allow minorities to nominate their candidates for the local elections. However, this law was adopted two days after the deadline for submittal of election lists for the October 2004 local elections expired, which means that minorities did not succeed in electing their political representatives at the local level for this mandate either.

The constitutional term “Other” should certainly be added the term “national minorities”. This would mean recognition of other ethnic groups in BiH, as well as those who do not define themselves in ethnic terms. Political representation of national minorities should be more clearly defined in legal terms. Since a majority of national minorities in BiH (except the Roma minority) consist of a relatively small number of members, these minorities could, with assistance of the state, establish a system of joint political representation in BiH elected bodies.

National minorities should be represented in entity parliaments too. The current arrangement, within which “Others” have fixed numbers of representatives in the RS Council of Peoples of and the FBiH House of Peoples, should be defined in a way that national minorities, elected by the national minorities electorate, can participate in the directly elected entity assemblies as representatives of minorities, not of “Others”.

If the principle of favouring ethnic (group) rights over individual rights is overcome in the near future, that would not automatically mean that the national minorities would cease to have political representation on the basis on group/ethnic affiliation. Even if BiH is defined as a civic state, and if the current principle of tripartite constituent status of people is overcome, the responsibility remains with the authorities to affirm small communities in a way to provide them secure political representation in some of the elected institutions in BiH.

It is certain that the candidates of parties of current constituent peoples will always be able to collect sufficient number of votes to get into, for example, the state parliament, but that cannot not be guaranteed for the Ukrainians, Jews, the Roma and other minorities. In order to make national minorities visible, it would be the best to establish a system of reserved seats for members of minorities and the so-called minority lists from which the national minorities would elect their candidates to run for the ‘regular” parliamentary composition.

So, the principle of positive discrimination could function in BiH exactly because the minorities are relatively small and the voters from national minorities have interests as citizens of BiH alongside their interests as members of specific national groups.

Further on, despite the fact that BiH is a signatory of the European Charter on Regional or Minority Languages, and the fact that there is the Law on National Minorities, provisions on the Law are not implemented in practice. For example, the 2003 Criminal Procedure Code says that “a person deprived of liberty must, in his native tongue, be immediately informed about reasons for his apprehension ...”, which is not applied here. Or, BiH is a signatory of the Framework Convention on Protection of National Minorities and the European Charter on Regional and Minority Languages, but we have no schools with classes taught in languages of the minorities, which the international documents obliged the country to ensure. The Roma population is in a particularly difficult situation, as the most numerous national minority in BiH.

An alarming information from 2002 was presented with regard to the rights of the child: the expected death rate of children under five years of age was 18 to 1,000 in 2002. In Slovenia, a former Yugoslav republic and current member of the EU, this rate is five to one thousand. In a country that is not in the state of war and does not have mass epidemics of contagious diseases, such expected death rate of children under five years of age (18/1000) demonstrates deficiencies in the state health care system. Every child should have the right to free health care in BiH. However, it is estimated that around 60 per cent of children in BiH do not avail themselves of health care services. In addition to that, many children in BiH live under inadequate living conditions, which only worsens their overall medical condition. In some rural and suburban areas, children live under every limit of human dignity.

Not only children are affected by the current health care system in BiH, but also the other citizens. Due to unemployment and irregular employment, around half of the population of BiH does not have the right to health insurance. Even those citizens who have this right can exercise it only in the entity in which they live. Also, the rights of persons with special needs are not respected to a sufficient level.

The BiH Family Law treats marriage as a bond between a man and a woman, which certainly does not meet the interests of members of sexual and gender minorities. The issue of homosexual marital relations is not regulated by the BiH legislation, or the issue of the change of identification documents after sex change. The EU policy for this issue is a policy of recognition, and it is expressed in several documents and UN resolutions. The BiH society should urgently start elimination of hate speech directed against members of sexual and gender minorities, and all forms of discrimination against and exclusion of this category of population.

After last year’s October local elections, it was evident that the open lists system in a patriarchal country such as BiH was not appropriate for achievement of full representation of women in politics. Although the BiH Electoral Law stipulates that at least 30 per cent of female candidates must be included in the election lists of parties participating in elections, only 18.1 per cent of women were elected for municipal councils after the past local elections. Three women were elected mayors, which is an impermissibly small number in the context of 148 mayor’s seats in BiH.

Apart for wider inclusion of women in the political life, the wider public should consider the actual status of women in the BiH society (prevention of domestic violence, trafficking in human beings, benefits for pregnant and nursing women, etc.)

The 2003 Gender Equality Law prohibits direct and indirect discrimination as to sex. However, the implementation of this law is still lacking.

The BiH Commission for Property Return (the Restitution Commission formed by the BiH Council of Ministers) has announced drafting of the law on restitution by the middle of this year (it is estimated that around 600.000 square metres of land, several hundreds of companies and a great number of housing units were taken away from their owners in the process of nationalization and other processes in BiH until the present day). Human rights with regard to restitution in BiH have surely been frequently endangered in cases of all interested sides.

The issue of asylum is a Copenhagen political requirement and is partly related to acquis communautaire. It is requested from the candidate states to harmonize their legislation with the EU law. For example, it was requested from the Republic of Croatia to change its Asylum Law, i.e. to adopt a new law and establish a system of reception centres for asylum seekers. Similar requirement will certainly be posed to BiH.

The BiH Constitution was added the Convention on the Rights of Workers, Migrants and Their Families in Dayton. In the past several years, BiH has started to receive a certain number of citizens of the People’s Republic of China. These are temporary immigrants who work mostly in trade of goods imported from China in BiH. Their status in BiH is pretty unclear, as we usually have whole families entering the country. It can be expected from the EU to request from BiH to apply the Convention on the Rights of Workers, Migrants and Their Families (should the Chinese stay longer in BiH), as well as to establish an asylum system compatible with European standards.

IV

Discussing the achievements of BiH in the past ten years, participants of the conference expressed different views on the current situation in BiH, but the majority are of the opinion that the reforms were not successful, that the economic and social situation is extremely difficult in the whole of BiH, especially the social aspects of the status of the unemployed, the retired, students and youth.

It is expected that there will be tens of thousands of redundancies in the civil service, as the reform of the enormous civil service has not even started yet. The participants in the discussion agreed that BiH is not able yet to continue reforms without assistance of the international community or to be a trustworthy partner for membership of the European and North Atlantic structures. This was supported by the latest opinion of the international community that BiH was still not ready for negotiations for membership of the Partnership for Peace.

Dominant were the evaluations that the achievements in BiH should mostly be accredited to the international community, but that the time has come for BiH’s assessment of what it expects from the international community, how to reach those objective, in which manner and until when.

The following issue was raised: how can one speak about respect for human rights in BiH, when its basic act, called the BiH Constitution, which is Annex IV – a component of the Peace Agreement, divides the citizens of this country into Serbs, Croats and Bosniaks, when the BiH Constitution itself does not specify nationality and national minorities, when the Constitution of this country does not know the identity of a citizen, human being, individual, the bearer of individual human rights and fundamental freedoms.

There are six levels of government in BiH and such a government structure does not exist anywhere else the in theory and practice of states and law. It was stressed that it was impossible in the current constitutional arrangement to establish the rule of law. Annex IV of the Dayton Peace Agreement lists all human rights and freedoms guaranteed in BiH. However, these rights and freedoms are being systematically violated. The citizens of BiH complain of discriminatory laws and other regulations, violations of social rights, right to work and employment, right to health insurance, right to peaceful usage of property, right to return to their pre-war homes, right to education. Actually, apart from declaratory instruments, BiH does not have any other instruments to ensure implementation of international legal acts, conventions on human rights in the whole of BiH.

V

The only true solution for BiH, for all its citizens and peoples, for full guarantees for human rights and freedoms is seeking new constitutional arrangements on the basis of which BiH would be able to function under the rule of law, which would be the social and legal framework in accordance with real needs of peoples and citizens with all their human rights and duties. This process must be initiated from inside and assisted by the international community.

With a remark that BiH is an incomplete country, an incomplete state and an incomplete society, it was stressed that assistance is still needed from outside the BiH. Unfortunately, the interest for BiH and consequently the assistance to BiH are decreasing, and the forms through which this assistance is given are becoming increasingly problematic. The jubilee anniversary of the Dayton Agreement is an opportunity for the state and its society, for its vital problems to be re-established as interests of the global public.  This is, of course, not for the interest itself, but for the assistance that would contribute to resolving of unresolved strategic contradictions and controversies that finally result in the lack of respect for human rights and everything that comes down under the same corps. BiH is not a country without opportunities, but, as it is usually said, a country of opportunities missed.

Although analytical studies do not have much significance after something had happened, they are important for conclusion that the international community did not demonstrate enough understanding of the circumstances in and around BiH. Even with a hypothetical assumption that the intentions of the international community were good, the conclusion of lack of understanding is dominant. This should consequently lead to the conclusion that BiH and its citizens can improve their status when they become capable of improving it themselves.

The future changes in BiH should come out of fulfilment of obligations from relationship with the EU, regular fulfilment of the short-term and mid-term priorities of the European Partnership, which will be announced every year, harmonization of national legislation with European standards and final application of complete legal heritage of the EU. What is certain is that, in the moment of accession to the European Union, BiH will be a state of parliamentary democracy and the rule of law in accordance with the EU model.

The entry into the Brussels phase is only the beginning of a long-lasting process of accession to the EU. Many years and obligations lie ahead before the final goal is reached. In an optimistic variant, the recommendation of the European Commission for the start of negotiations between BiH and the EU on signing of the Stabilization and Association Agreement can be expected in the first half of 2006. The recommendation from Brussels will follow after the 40 laws that were adopted during 2004 start to be implemented, after formation or reconstruction of 25 state-level institutions is completed. Significant progress in the 16 priority areas would ensure more functional judiciary, greater security of citizens, return of refugees and displaced persons, consumer protection in BiH, etc. Without full cooperation with the Hague tribunal, negotiations with the EU will be postponed. A couple of months will pass between the European Commission recommendation and the start of concrete negotiations. This period will not include fulfilment of additional conditions, but awarding of mandates for negotiations, setting of negotiations terms and preparation of negotiating teams of BiH and the EU. The signing of the Stabilization and Association Agreement marks a transfer from the voluntary to the phase of compulsory harmonization of the BiH legal system with the EU law. Once the Agreement is ratified and enters into force, BiH will cross into the second phase of contractual relations with the EU. The Stabilization and Association Agreement represents an international contractual obligation, which has supremacy over national legislation, including the BiH Constitution. The EU will not adapt to the BiH circumstances, on the contrary.

If the High Representative will retain his Bonn competences before and during the negotiations, it would be logical if these competences were abolished during the Agreement application. They are simply incompatible, as the High Representative will not take over the responsibility for obligations from the Agreement, but the BiH institutions. Several European officials have already stressed that BiH cannot join the EU with the High Representative. The most persistent is the member of the European Parliament, Doris Pack, who has publicly expressed such views a number of times. During 2002, the High Representative imposed 32 laws, a year later he imposed 14 laws, while by the second half of 2004, he imposed only three laws. Further progress of BiH in the Stabilization and Association Process will be possible if this trend is reflected on all other decisions of the High Representative, which will finally represent his exit strategy. Finally, the High Representative will be taking over the role of the EU Special Representative coordinating the EU family in BiH, the Delegation of the European Commission, the EUFOR and the EUPM.

Implementation of the Agreement is also a period of possible change of the Dayton Constitution and creation of a functional and rational BiH that will be capable of efficiently implementing all its parts. Considering the experiences of countries of central and eastern Europe that became full members in the EU in 2004, new state institutions will be formed in every new phase of relations with the EU, new resources will be created, new civil service working in the interests of all citizens will be established. BiH had three state ministries in 1997. Thanks to the process of European integration, they are nine now, together with over 30 state-level agencies.

By implementing the Agreement, BiH will be able to apply for full membership of the EU. The negotiations for membership will be the most complex task and the greatest challenge, which will lead to the most profound reforms. Institutional capacities, which are necessary for successful negotiations on full membership, adoption and application of the whole European legislation, will finally result in the number of around 15 state ministries and around a hundred agencies, offices with the purpose of strengthening democracy, strengthening of export capacities, oversight of the market, environment protection, etc. The number of entity or cantonal competences will be reduced significantly. All these formal steps will be followed by considerable reforms in the judiciary, internal affairs, defence, economy, etc. Finally, BiH will transfer a share of its sovereignty to the European Community for supremacy of communitarian law and its application in all EU member states. ESI analysts think that it is impossible for BiH to start negotiations for full membership before 2007.

Perhaps it would be desirable to discuss changes of the current constitutional arrangement (at least as proposed by the Venice Commission of the Council of Europe at its session of 11 and 12 March 2005), and adapt the BiH Constitution to European standards. It is heard from many sides that BiH will not be able to join the EU with such constitutional arrangements. If we remember the presence of the institution of the High Representative, the issue is complicated even more. The Venice Commission itself discussed further sustainability of the High Representative in BiH at its last session and re-examined compatibility of his current competences with international instruments for protection of human rights.

It seems that enough time has passed for the current constitutional arrangements in BiH to be reconsidered, and a detailed analysis of the situation in the field of human rights of individuals and some groups to be conducted. It also seems that any eventual change of the current system of institutions in BiH should be done by the local players.

What needs to be done in BiH in the field of human rights immediately, regardless of the state of affairs in the context of joining the EU, is provision of conditions for equal and full exercising of both active and passive voting rights, and affirmation and promotion of national minorities in government.

Tolerance and mutual trust of peoples are developed through the process of European integration, and the participation of citizens in democratic processes strengthened. Recommendations of the EU intensify institutional dialogue, enable launching of important reforms and formation of complex mechanisms of horizontal and vertical coordination, in which all levels of government in BiH are involved.

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