Bosnia and Herzegovina

The constitutional status of the Bosnia and Herzegovina Parliamentary Assembly, as well as the entity parliaments (the Republika Srpska National Assembly and the Federation of Bosnia and Herzegovina Parliament), is defined by the Constitution of Bosnia and Herzegovina and the respective entity constitutions. BiH has a bicameral parliamentary system, consisting of the directly elected House of Representatives (with 42 MPs elected from two entities: 28 from FBiH and 14 from RS) and the House of Peoples (with 15 delegates reflecting equal representation of the three constituent peoples, with five delegates from each people) indirectly elected by the FBiH Parliament and the RS National Assembly.

A complex constitutional and legal framework governs the functioning of parliaments, outlining their roles, independence, transparency and accountability. However, this framework is somewhat limited by the country’s intricate constitutional structure and the presence of veto mechanisms designed to safeguard the national interests of the ethnic groups.

Parliaments have the necessary financial and human resources to perform their duties. However, significant issues have been identified in the implementation of the legal framework governing parliamentary operations and in the ability of parliaments to fulfil their roles effectively.

The main issue with the legislature is that the power to pass laws and oversee the executive branch has been largely shifted away from parliaments and into the hands of party leadership that often resides in the executive. As a result, the parliaments’ role has been reduced to merely rubber-stamping political leaders’ agreements. During the 2018–2022 parliamentary term, parliaments largely failed to fulfil their constitutionally and legally mandated roles and were, for most of the term, obstructed due to the ongoing political crisis.

Although there are constitutional and legal mechanisms in place to ensure that the legislatures are accountable to voters for their actions and decisions, in practice, MPs/delegates are only accountable to the parties from whose lists they were elected to parliament. Their focus on citizens intensifies only before elections when they require votes. The issue of integrity and the identification and prevention of conflicts of interest is treated as a matter of marginal importance.

All administrative levels have been legally provided with the appropriate powers and resources for exercising the executive power. In addition to the various levels of government, the High Representative formally remains the final authority responsible for implementing the Dayton Agreement, with powers to ensure that all governments comply with the agreement's provisions.^[1]

Despite this, effective implementation of policies is hampered by the country’s extremely complex constitutional setup and the lack of subordination and coordination among multiple levels of government. One of the country’s biggest problems remains the abject lack of efficiency, transparency and, not least, accountability of its executive branch. A particularly strong negative trend has been observed in accountability, including political obstructionism impeding the enactment of important legislation in the area of the integrity of the executive and the weakening of the legislature’s control of the executive, as reflected in the pressures on the supreme audit institutions (SAIs). Another problem is evidenced by the serious delays in forming governments after general elections, which has contributed to a lack of public sector and anti-corruption reforms across state and local levels.

Capture of the executive by the political parties and the ruling elites is both the problem and the potential solution if this hold was to loosen. A range of laws need to be improved or adopted to ensure freedom from conflicts of interest, access to information and greater proactive transparency. This includes contracting or procurement as well as the areas partially mentioned under this chapter and also under the other NIS pillars, such as the legislative branch, political parties, etc.

_{[1] General Framework Agreement for Peace, Dayton 1995.}

According to the constitutional structure, the judicial system is divided into several tiers that are not interconnected, resulting in four independent judicial systems in terms of organisation and jurisdiction. These include the judicial system at the state level^[1] as well as the judicial systems of the FBiH^[2], RS^[3] and BD^[4], which are financed through 14 separate budgets.

The executive branch at all levels of governance exerts undue influence on the judiciary through the process of proposing and adopting the budget of judicial institutions, typically by failing to approve sufficient funds or by influencing the drafting, adoption and execution of the budgets.

Despite a comprehensive legal framework that allows the public to access information about the judiciary’s operations, the practice of transparency falls short of the principles and provisions outlined by law. According to TI BiH analysis, only 47 per cent of courts have provided full information on the request for access to information according to the law within the deadline.^[5] However, rules regarding the open court principle and exemptions are fully respected.

There is a concerning trend of a lack of accountability among judicial officeholders, despite their legal obligations and duties, including cases of political connections, weak process of appointments, low public perception, etc. Additionally, the number of complaints filed against judicial officeholders with the Office of the Disciplinary Counsel (ODC) has been increasing annually.

A system for collecting and verifying asset declarations from judges, prosecutors and members of the High Judicial and Prosecutorial Council (HJPC) has yet to be established, with only a small percentage voluntarily disclosing their asset declarations. Appointments, promotions and career advancement of judges and prosecutors by the HJPC should primarily follow a non-ethnic biased approach and be based on merit, but this is not the case in practice. The problem of an ethnically biased approach in the ranking lists is particularly present in the case of appointments of court presidents and chief prosecutors.

Furthermore, the legal framework for judicial oversight of the executive is incomplete. The current framework is unable to compel the executive branch to comply with court decisions made in administrative litigation because it lacks an enforcement mechanism. As a result, the judiciary has been ineffective in exercising control over administrative acts.

_{[1] Law on Courts of Bosnia and Herzegovina.}

_{[2] Law on Courts of the Federation of Bosnia and Herzegovina.}

_{[3] Law on Courts of Republika Srpska.}

_{[4] Law on Courts of the Brčko District.}

_{[5] TI BiH, Analysis of the level of transparency of judiciary institutions in BiH}

Prosecutors’ offices are independent government institutions. There are four separate prosecution systems, organised according to the level of government: the state-level Prosecutor’s Office of Bosnia and Herzegovina, two entity prosecutors’ offices (FBiH and RS), the BD Prosecutor’s Office, ten cantonal prosecutors’ offices in FBiH and six district prosecutors’ offices in RS. Within the Banja Luka District Prosecutor’s Office, there is a Special Prosecutor’s Office for Combating Organised Crime and the Most Serious Forms of Economic Crime (Special Prosecutor’s Office), while at the state level within the Prosecutor’s Office of BiH, there is Section in the Special Department for Organised Crime, Economic Crime and Corruption.

Despite having a solid legal framework and relatively satisfactory resources for law enforcement within their jurisdictions, prosecutors’ offices in BiH continue to face significant obstacles to their functionality and effectiveness. These obstacles include a complex structure and financing from 14 different budgets, as well as undue political influence. Each administrative level of the judicial system is financed from its respective budget (state, entity and cantonal budgets).

As a result of such challenges, prosecutors have been unsuccessful in effectively managing policies for investigating crime and a systemic approach to prosecuting corruption offences at the level of prosecutors’ offices is lacking. Prosecutors exercise considerable discretionary power in deciding whether to initiate criminal proceedings, a key risk with high-level corruption cases. Disciplinary actions have thus far failed to serve as an effective deterrent. In cases involving grand corruption, inexplicable professional errors occur with alarming frequency.

In practice, mechanisms for holding prosecutors accountable are almost entirely non-functional. The entire system of disciplinary accountability functions more as an instrument of intimidation than as a means of achieving its primary objective – ensuring that judges and prosecutors are held accountable for their actions.

Due to the complexity of the public sector’s structure, it is difficult to provide an assessment of this sector as a whole in terms of the legality, transparency, integrity and accountability of institutions. The public sector includes not only the state administration framework, public services, and public enterprises, but also public institutions in health care, education, and social protection, each regulated by their respective laws and sublegal regulations.

The legislative framework governing the legality, transparency, integrity and accountability of the public sector is relatively sound. However, in practice, there are numerous shortfalls with its implementation. Although public administration reform has laid a foundation for more efficient and unhampered performance, there is a need to further enhance integrity, accountability and transparency, particularly in areas such as public procurement. The majority of public institutions still do not have integrity plans or codes of conduct, and there is no uniform regulation on the prevention of conflict of interest. The freedom of access to information law is still poorly enforced, with one notable problem being a lack of provisions on proactive transparency. Despite recent progress and developments in the procurement system, such as further harmonisation of domestic regulations with the acquis and the operationalisation of the state-level public procurement portal, that practice remains subject to numerous abuses.

Due to inadequate integrity and human resources policies and the absence of reporting on their implementation, integrity and accountability of public sector employees remain a grey zone.

The system of law enforcement agencies is complex. At the state level, it includes agencies operating under the Ministry of Security such as the official state police agency of Bosnia and Herzegovina, the State Investigation and Protection Agency (SIPA), the Border Police (BP), the Directorate for Coordination of BiH Police Bodies (DCPB), the Service for Foreigners’ Affairs, the Agency for Forensic Examination and Expertise, the Agency for Education and Professional Training, the Agency for Police Support, the BiH Intelligence and Security Agency (ISA), and the Indirect Taxation Authority (ITA). At the entity level, it includes the FBiH Ministry of the Interior (FBiH MoI), the RS Ministry of the Interior (RS MoI) and the BD Police. At the cantonal level, it includes 10 cantonal interior ministries in FBiH that report to their respective cantonal governments rather than the central FBiH MoI. Also, at the entity level, there are tax administrations responsible for levying and collecting direct taxes. The Financial Police, which reports to the FBiH Ministry of Finance, is responsible for overseeing and enforcing tax compliance on the territory of FBiH. Similar is the case in the RS. Prosecutor’s offices are analysed as a separate pillar in this report.

To make this analysis manageable, this pillar report focuses on state and entity-level law enforcement.

Corruption persists and political influence on law enforcement agencies appears blatant. Specifically, there is a need to address issues of corruption and organised crime, which can undermine law enforcement efforts and public trust. In addition, inter-ethnic tensions and political divisions pose challenges for maintaining a unified and effective police force. Also, owing to the country’s extraordinarily intricate administrative and constitutional structure, collaboration among law enforcement agencies remains limited. Legislative inconsistencies across all levels of government continue to impede substantial progress.

Furthermore, the executive and judiciary need to work together, particularly to prevent and address cases of grand corruption, which are widespread but rarely sanctioned.

The Central Election Commission of BiH (CEC) is responsible for conducting elections, gathering candidates’ assets declarations, and implementing the Law on Party Financing and the Law on the Council of Ministers of Bosnia and Herzegovina (CoM).

The CEC is facing numerous challenges. These include insufficient capacity to fulfil all of its responsibilities on time and a lack of political will to improve the laws falling under the CEC's responsibility. The High Representative imposed legislative changes on the eve of the 2022 general elections, but these have not had a positive impact on the integrity, transparency and efficiency of the election process or the administration.

The past three years have been marked by the CEC falling under increasing pressure and threats coming from political leaders, including attempts to strip it of the necessary financial resources to conduct elections, questioning its legitimacy, insults and threats to individual members, as well as initiatives to remove members from office. The 2022 general elections show gross irregularities, sanctioned by the CEC, thus demonstrating that little or nothing has been done to prevent election engineering and the procedural problems that have existed in past years.

The CEC attempts to regulate candidate and political party finance, but systemic deficiencies persist, including late audit reports of campaign spending and regular finances of political parties, due to missing time limits. In terms of ensuring the electoral process’s integrity, there are issues with the accuracy of voter registrations, the late publication of results and delays in the electoral process, mainly due to staff shortages. The general elections keep demonstrating that the entire election process faces serious fraud at the level of the local election management. The promotion of women’s political participation also faces challenges as gender quotas do not always translate to increased female representation in elected positions.

Under the constitution and the international treaties appended thereto, the Institution of Human Rights Ombudsman was created as an independent institution with the mission of advancing good governance and the rule of law and defending the rights and liberties of natural and legal persons.^[1] The institution is headquartered in Banja Luka and has regional offices in Sarajevo, Mostar and the BD, as well as a field office in Livno. The institution consists of three ombudspersons appointed by both chambers of the Parliamentary Assembly from among the three constituent peoples, though an appointment from among “others” is not precluded.

The ombudsperson’s effectiveness in dealing with public complaints is limited to a primarily reactive approach and a significant backlog of cases. The institution initiates investigations in response to complaints or on its own initiative, but lacks consolidated data on investigations instigated on its own initiative. In 2021, the institution received 2,946 complaints, but 39 per cent of these were carried over from previous years. This is also due to a lack of human resources with the appropriate expertise in human rights and freedoms.

The ombudsperson seeks to raise awareness about ethical standards within the government through its recommendations, but in 2021, 42.6 per cent of the recommendations remained unimplemented or were not responded to by the government.
The website of the Institution of Human Rights Ombudsman is kept up to date with relevant information. However, the ombudspersons’ engagement with the media is limited to presenting annual and special reports, and they often remain quiet when the media reports on human rights violations.

The legal framework is missing mechanisms to keep the ombudspersons accountable. Even though they have to report on their activities to parliament, those reports do not have to be debated, and the ombudsperson cannot be held to account for late submissions because of a lack of a legal deadline. Also, the election process of the current ombudspersons was marked by a lack of transparency and failed to include civil society organisations and international organisations throughout the whole process, as was the case in previous appointment rounds. There is also no restriction for re-appointments in the law, which enabled two ombudspersons to serve their third consecutive term.

The institution currently has no code of conduct and lacks protocols for gender sensitivity in its work.

_{[1] Law on Human Rights Ombudsman of BiH, Official Gazette of BiH No. 19/2002, 35/2004, 32/2006, 38/2006 and 50/2008.}

There are four supreme audit institutions (SAIs), the Audit Office of the Institutions of Bosnia and Herzegovina, the Audit Office of the Institutions in the Federation of Bosnia and Herzegovina, the Supreme Audit Office of the Republika Srpska Public Sector, and the Audit Office of Public Administration and Institutions in the Brčko District of BiH.^[1] The mutual coordination and cooperation among the four SAIs takes place through the SAI Coordination Board. The board comprises of the auditors general and deputy auditors general of the four SAIs. Representatives of the Audit Office of Public Administration and Institutions in the BD participate in the activities of the Coordination Board as observers.

The independence and the SAIs’ status, including in particular adequate legal protection before a supreme court against any interference in their independence and audit mandate, is not included under their respective constitutions (of state and entities) and, therefore, not in accordance with generally accepted international standards and conventions.^[2] The sole exception is the BD, where the Statute recognises the status of the Audit Office of Public Administration and Institutions in the Brčko District, albeit without explicitly mentioning the independence of the Auditor General or the Office.^[3]

In terms of the SAIs’ operational activities, there are still shortcomings related to insufficient human resources, notably for performance audits, as well as the need to enhance collaboration with other relevant actors, particularly those from the judiciary and the civil sector. In recent years, the financing of SAI operations has been subject to numerous pressures. Most notably financing of the Audit Office of the Institutions of BiH where the budget was constrained in recent years by the CoM’s decision on the temporary financing of the institutions of BiH, the COVID-19 pandemic and restrictions on capital expenditures imposed in 2020 and 2021, all of which have undoubtedly impacted the work of this audit institution.

_{[1] Audit Office of the Institutions of BiH, p. 9, The role and importance of independent institutions}

_{[2] INTOSAI-P-1, The Lima Declaration, The Founding Principles of SAIs}

_{[3] Statute of the Brčko District of Bosnia and Herzegovina}

The Agency for the Prevention of Corruption and Coordination of the Fight Against Corruption is an independent and autonomous administrative organisation, which reports to the Parliamentary Assembly.^[1] The agency is primarily a preventive body and institution in charge of coordinating anti-corruption activities with other institutions and authorities involved in anti-corruption at all levels of governance.

Although the legal framework allows for the agency’s formal independence, the Council of Ministers of Bosnia and Herzegovina (CoM) has a strong influence on the agency’s organisational and financial independence, as evidenced by the process of providing human and technical resources or the agency’s operation.

The agency has implemented proactive transparency mechanisms, and information on its activities is available on its website. Although accountability and integrity processes have been strengthened by gradual capacity building, issues remain, such as direct political party interference in the process of appointing the agency’s leadership or the appointment of US-blacklisted individuals to the agency’s Selection and Monitoring Committee.

During the last five years, the agency engaged in strengthening its operational capacities and concentrated its efforts on the implementation, monitoring and coordination of strategic anti-corruption documents, as well as the development of a new strategy and accompanying action plan for the period between 2019 and 2022 (not yet adopted).

_{[1] Law on Agency for Prevention of Corruption and Coordination of the Fight against Corruption}

At the state level, there is still no single country-wide law on political parties. Therefore, the establishment and registration of parties takes place at the level of entities, under the relevant entity laws on political organisations. The legislations treat the issue of party registration differently, leading to very different requirements towards the political parties. The laws on political parties do not contain any provisions related to internal democracy, integrity or accountability standards. The number of registered political parties is disproportionately high compared to those participating in elections or the government. The legal framework and environment are conducive to establishing and functioning political parties. The resources are allocated for all political parties participating in parliaments at all levels. However, the legal framework still suffers from deficiencies and loopholes that do not enable sufficient transparency and accountability, or public oversight.

There is insufficient oversight or transparency of parties’ expenditures. Internal and external integrity mechanisms of political parties are inadequate. In contrast, the influence of political parties on all other sectors is overwhelmingly negative, leading to political capture and political corruption. This also stems from the lack of any regulations about the prevention of abuse of public funds, institutions and resources to gain election support or financing campaigns. The grip of the leading political parties across the three main pillars of power remains very tight, almost without interruption, since the war’s end.

A much better regulation of political parties would loosen their grip on most other integrity pillars. This however cannot be achieved solely through the laws on their formation and management, and there is no silver bullet. A range of other legal and institutional solutions need to be introduced that would separate the influence of the party leaders(hip) on the executive, the in-between institutions (SAI, Ombudsperson, ACA), and the economy.

According to the Law on the Public Broadcasting System, Bosnia and Herzegovina has three public broadcasters. These are the state-level Radio and Television of Bosnia and Herzegovina (BHRT), Federal Television (FTV) and Radio Television of Republika Srpska (RTRS) at the entity level. Despite the law’s provision for the formation of a corporation encompassing these three public broadcasters, this has not materialised following numerous attempts over the years.

A significant proportion of television and radio stations are owned by lower-level governments such as cantons, cities and municipalities. However, in recent years, there has been a marked increase in the establishment and operation of private radio and TV stations, and in particular online media outlets, for which the registration requirements remain inadequately defined. Currently, BiH is home to 312 radio and TV broadcasters (169 radio broadcasters, 108 TV broadcasters and 35 web-based content distributors),^[1] seven news agencies, eight daily newspapers, approximately 180 magazines and publications, and 615 web portals.^[2] These figures suggest a diverse media landscape.

The state-level Communications Regulatory Agency (CRA) oversees the operations of these broadcast media entities. However, this diversity does not necessarily translate into independence, objectivity, veracity and quality of information.

There is no effective monitoring of print media. The Press and Online Media Council only issues non-binding recommendations. In recent years, there has been a surge in the number of online media outlets. Due to their vast number and the lack of regulation concerning online media, no comprehensive and accurate register of online media exists. As a result, the online media sector is disproportionately large compared to the population size, and many online media outlets do not disclose their founders, editors or employees.

The absence of media ownership regulation fosters an environment conducive to media space monopolisation and political clientelism. Journalists and editors in both state-funded and privately run outlets face significant pressure to report on events through a political prism, which leads to bias. In order to survive, the media must rely on government grants or private sector advertising, where politically connected companies provide a critical financial lifeline.

_{[1] TI BiH, Integrity of journalism and transparency of the Media.}

_{[2] VZS, Lista web portala.}

According to official statistics, there are currently 27,432 civil society organisations (CSOs) registered in Bosnia and Herzegovina.^[1] In reality, however, the number of CSOs actively pursuing their programmatic goals and serving the interests of their target beneficiaries is far lower. The biggest impediment to evaluating their performance and effectiveness is a lack of data on their number, capacities, areas of work and activities.

The legislative framework governing the establishment and operation of CSOs is adequate, but there is room for improvement. Authorities have misused budget money because there are no mechanisms in place to ensure transparent government support of CSOs. As a popular measure, they typically fund a number of associations that arose from the 1990s war.

The executive attempts to either maintain the status quo or enforce new, even more, stringent policies, such as the Law on Register of Foreign Agents in Republika Srpska, Amendments to the Criminal Code in RS related to defamation regulation, the Law on Financing of the NGOs in FBiH, and a set of policies that regulate freedom of assembly and use of public space in FBiH Cantons and RS.

During election periods, some CSOs serve as conduits for political campaign funding. Even though the number of informal groups and coalitions seems to be increasing, civil society has not yet had a major impact on getting authorities to address certain topics or problems. Also, the contribution of CSOs to public policymaking remains relatively modest.

The lack of a mechanism for CSO self-regulation is one of the issues that CSOs need to address in order to improve their reputation and public trust in their work. While some CSOs have adequate capacities, they do not collaborate sufficiently with the government and businesses in creating national development strategies.

Furthermore, they continue to rely heavily on funding from public budgets or international donors, making them very vulnerable and dependent. Attacks on activists and CSOs working to promote human rights, and in particular LGBTIQ rights and the rights of migrants, are on the rise.

_{[1] Aggregate e-register of associations and foundations in BiH, http://zbirniregistri.gov.ba/}

According to the 2021 statistics,^[1] more than 91 per cent of all workers are employed in the business categories of micro (0–9 employees) and small enterprises (10–49 employees), with only 1 per cent employed in large companies.^[2] Furthermore, in terms of the overall structure of the business sector, a statistical review of the type of activity reveals that the majority of companies (70.6 per cent) operate in the following six areas: wholesale and retail trade, repair of motor vehicles and motorcycles (20.4 per cent), other service activities (18.7 per cent), manufacturing (10.9 per cent), professional, scientific and technical activities (7.9 per cent), arts, entertainment and recreation (7.7 per cent), and transportation and storage (5.6 per cent). The fact that the business sector is dominated by micro and small enterprises is further corroborated by annual revenue statistics, which show that 90 per cent of businesses generate revenues of less than BAM4 million (€2.1 million) per year, 5.5 per cent generate revenues between BAM4 million and BAM20 million (between €2.1 and 10.23 million), and only 2.8 per cent have revenues of BAM20 million or more (€10.23 million or more).^[3]

The business sector frequently selects a form of association and representation of business interests, mainly through chambers of commerce and employers’ associations. The latter have emerged in recent years as an important negotiating force in both entities, particularly during negotiations over issues such as minimum wage, the formulation of tax and contribution policy and the abolition of certain parafiscal levies. Either form of association, the traditional chambers or the more recent business associations are free and there is no compulsory membership or fees payable.

Meaningful government interventions to support the development of the entire business sector have been absent ever since. The estimated level of the informal economy remains relatively high (up to one-third of GDP), continuing to pose a substantial barrier to levelled economic development.^[4] This also demonstrates a dire need for improvements in the business climate.

The rule of law continues to be weak, and corruption persists, especially in public contracting and business operations, which remain heavily influenced by the state (public administration) and political actors. Among the most successful businesses, a considerable number still do business with the government under preferred conditions.^[5]

_{[1] Agency for Statistics of BiH, Structural Business Statistics 2021.}

_{[2] Agency for Statistics of BiH, Business Statistics, Units of the Statistical Business Register Data as of 31 December 2022.}

_{[3] Ibid.}

_{[4] European Commission, Bosnia and Herzegovina 2023 Report, p. 67.}

_{[5] Capital.ba, Public procurement in Bosnia and Herzegovina: Billions disappeared under the grain.}