Implementation at the National Level

With a view to facilitate the implementation of international restrictive measures, such as, for example, UNSC Resolution 1503 and EC Council Regulation 1763/2004 of 11 October 2004, imposing certain restrictive measures in support of effective implementation of the mandate of the ICTY,²⁵³⁸ the BiH State level “Law on application of certain temporary measures in support of effective implementation of the mandate of the ICTY, and other international restrictive measures from 2006”²⁵³⁹ as prepared by the ICTY Cooperation Monitoring Working Group, established by the Chair of the Council of Ministers in 2005 and adopted in 2006, provides for the application of appropriate measures, such as the freezing of funds and the freezing of economic resources.²⁵⁴⁰ The law clarifies in Article 1 paragraph 3 as its purpose “to regulate in BiH the manner of implementation of the UNSC resolutions or EU decisions that foresee international restrictive measures, particularly UNSC Resolution 1503 (2003) through the application of certain measures in support of effective implementation of the ICTY mandate” and to a large extent mirrors the EC Regulation. The law aims at dismantling the network of support for ICTY indictees by also targeting the “support network” of ICTY indictees. While the adoption of the law as such is an important step forward in the cooperation of BiH authorities with the ICTY and its legislative codification, from a domestic perspective, however, it appears problematic in that it lacks legal clarity both in relation to the procedure for the application of measures as well as in relation to the notion of “assistance” to an ICTY indictee.²⁵⁴¹ In contrast to the above mentioned law, neither the EC Regulation (which only refers to indictees, the names of whom are included in the Annex of the Regulation) nor the Security Council (which, in relation to support networks, limited itself to urging member States to consider measures against support network and did not establish such a list of persons or “imposed” measures on member States) provided for provisions on the support networks of indictees. This constitutes an important difference to the regime implemented by the Security Council in relation to the fight against terrorism, usually described as the “blacklist model”²⁵⁴² whereby persons and entities bear certain legal consequences with respect to their property rights, as a result of their simple insertion on the list,²⁵⁴³ and which also impacts the extent to which judicial review of such measures can take place at the domestic level.²⁵⁴⁴ In that regard the law raises doubts regarding compliance with fundamental rights as enshrined in the Constitution and the ECHR, especially in relation to due process and the right to peaceful enjoyment of property.²⁵⁴⁵ While it appears acceptable in the case of persons indicted by the ICTY to limit the judicial review process, this would not be the case for support networks in relation to which the law refers to the procedure of the BiH CPC regarding the freezing of funds and economic resources without expressly providing for the possibility of appeal against those measures provided for by the CPC.

In addition, the role of the Council of Ministers (i.e., the Government) in the issuance of measures and the obligation of the Court of BiH “to inform the Ministry of Security of any authorisation granted […] no later than eight days prior to the granting of authorisation”²⁵⁴⁶ raises concerns in relation to the principle of separation of powers and the independence of the judiciary. Also, the review process as such to be carried out before the Court of BiH remains unclear in that there is no regulation on how proceedings can be brought before the Court. In order to receive clarification on these issues, the Court of BiH could consider submitting the law to the Constitutional Court of BiH for a review of constitutionality in accordance with Article VI.3(c) of the Constitution when it is called upon to deal with a case under this law.