Regional conference on “Tax law in constitutional court jurisdiction” in Bosnia and Herzegovina

Participants in the regional conference in Brčko
Participants in the regional conference in Brčko

From 12 to 14 April 2018, a conference on “Tax law in constitutional court jurisdiction” was held in Brčko in Eastern Bosnia. This “district” has a special status in the constitutional structure of the state of Bosnia and Herzegovina. The conference was financed by funds from the German Federal Foreign Office allocated to Germany’s contribution to the Stability Pact for South-East Europe and was organised by the Constitutional Court of Bosnia and Herzegovina and the IRZ.

Judges and legal staff from the constitutional courts of Bosnia and Herzegovina, Croatia, Macedonia, Montenegro and Serbia attended the conference to learn about the respective case law practised in neighbouring states, at the European Court of Human Rights (ECtHR) and at the German Federal Constitutional Court (BVerfG).

The event was opened by the President of the Constitutional Court of Bosnia and Herzegovina, Mirsad Ćeman, and the Deputy Mayor of the District of Brčko, Dr. Anto Domić. Dr. Stefan Pürner welcomed the participants on behalf of the IRZ and the German Ambassador, Christiane Hohmann, who was unable to attend.

Speakers representing the various regions were:

  • Zlatko M. Knežević, who is also one of the Vice-Presidents of the Constitutional Court of Bosnia and Herzegovina,
  • Desanka Lopičić (Montenegro),
  • Sabahudin Tahirović (Serbia),
  • Dr. Mato Arlović (Croatia) and
  • Dr. Osman Kadriu (Macedonia).

The lecture on Germany was given by Professor Marc Desens from the department of Public Law, in particular Tax Law and Public Commercial Law, at the law faculty in Leipzig. Professor Desens also used to work as a researcher for the second senate of the BVerfG, which is responsible for tax law.

The event revealed the differences and similarities between Germany and the represented West Balkan states, as well as between the different countries in the region. The similarities include the fact that all constitutional courts make it clear that they avoid “constitutional actionism” and therefore decide only on violations to the constitution and not on the infringement of subconstitutional law. They also respect the considerable leeway of the legislator to define their own tax laws.

Opinions divided, however, when it came to the question of which aspects of tax law, which are fundamentally protected by the constitution, should be weighed up against state financing interests. In some of the participating states, the focus here is on intervention in property, whilst in Germany, the principle of equality is mostly used as a standard of review for state intervention through taxes.

There were also differences in the way in which constitutional courts are involved in tax law cases: Unlike in Germany, where 167 of the 170 decisions made by the BVerfG on tax law resulted in Normenkontrollverfahren (judicial review proceedings on the constitutionality of laws), in some states constitutional complaints prevail.

In many cases, South-East European constitutional courts established an infringement of fundamental civil rights concerning court proceedings. This ranged from omitting to clarify facts to cases lasting excessively long (in some cases 10 to 12 years) and to breaches of the right to a hearing through omitting to provide reasons for the decisions of the authorities and courts.

These and other deficiencies mentioned show that further activities are required in the field of tax law, which is very important, not least for the economy and for German investors in the partner states.

The organisers of the regional conference will take this situation into account by publishing the lectures (together with a report of the discussions) in a conference transcript. This will ensure that the events create a new medium, allowing a wider audience to benefit from the targeted results.

Latest IRZ law journals for Southeast Europe

Latest editions of NPR and EP

At the end of 2017, the latest editions of two journals for Southeast Europe, co-published by the IRZ, came out. The journal "Nova pravna revija - časopis za domaće, njemačko i evropsko pravo" (New Legal Review - a journal of regional, German and European law; NPR for short) is distributed in all succession states of former Yugoslavia. Also, a new edition of the Macedonian journal for European Law, "Evropsko Pravo" (EP), was published.

The two journals cover a wide range of topics. The latest NPR edition deals with questions ranging from family and land register law and the CISG case law in Bosnia and Herzegovina, to information about recent developments of European and German laws.

The intensive cooperation between the Institute for Eastern European Law and the IRZ on Southeast Europe is furthermore continued with a publication of the translation of a comparative law paper on the legislative procedure in Bosnia and Herzegovina, Montenegro and Serbia.

The paper was first published in the Jahrbuch für Ostrecht (Yearbook for Eastern European Law).

The new edition of the Macedonian journal on European law "EP" contains no less than seven papers by Macedonian authors covering the following issues, amongst others:

  • the conflicting fields of human rights and the fight against terrorism,
  • the freedom of expression according to the European Convention on Human Rights,
  • the European Central Bank and the issue of a democratic deficit and
  • legal multilingualism in the European Union.

Two comparative papers compare on the one hand the Macedonian value added tax with the European model of the net all-phase VAT system with pre-tax deduction, and on the other hand the legal provisions on the management and supervisory boards of public companies.

The edition furthermore contains a detailed report about the symposium on the "Legal transformation in Southeast Europe using former Yugoslavia as an example: prerequisites, parties involved, failures and successes - a preliminary review", which the IRZ organised at the end of 2017 in cooperation with the Southeast Europe Association (SOG).

The two journals are also spread via their own websites:

Regional conference on the “Theory and practice of the independence of constitutional courts” held in Bosnia and Herzegovina

Participants in the regional conference in Jahorina
Participants in the regional conference in Jahorina

From 5 to 7 October 2017, a regional conference organised jointly by the local constitutional court and the IRZ on the “Theory and practice of the independence of constitutional courts” was held in Jahorina, Bosnia and Herzegovina. As well as constitutional court judges from Germany and Bosnia and Herzegovina, constitutional court representatives from the following countries also took part in the conference: Croatia, Macedonia, Montenegro, Serbia and Slovenia. The Constitutional Court of Serbia was represented by its President, Vesna Ilić Prelić, amongst others, and the President of the Constitutional Court of Montenegro, Dr. Dragoljub Drašković, was also present.

After the opening of the event by the President of the Constitutional Court of Bosnia and Herzegovina, Mirsad Ćeman, and the IRZ, the German Ambassador in Bosnia and Herzegovina, Christiane Hohmann, also welcomed the participants. She stressed the importance of the independence and neutrality of constitutional courts and all other courts.

The three-day event was characterised by an intense exchange of ideas and lively discussions, which were inspired by keynote speeches and reports on the practical experiences of representatives from the participating constitutional courts, as well as by a former judge at the German Federal Constitutional Court, Professor Dr. Udo Steiner, and the former President of the Constitutional Court of the State of Saxony-Anhalt, Winfried Schubert.

The focus of the discussions was on the practical implementation of the basic principle of the independence of constitutional courts. The constitutional courts of the south-east European states named above believe their independence is compromised above all by the media. They complained that the media indiscriminately gives politics room to influence public opinion with regard to the pending decisions of the constitutional court in their own interests. In this context, the German speakers explained the basic principle of the loyalty of constitutional bodies, which was met with great interest.

The particular importance of constitutional courts carrying out active and transparent media work was also pointed out. This helps courts to gain respect amongst the general public, which then results in greater independence. However, it was also noted that a constitutional court can only be convincing if judgements are well-justified, whereby the pressure to provide justification is the downside of judicial independence.

The unanimous conclusion of the regional conference was that the legal framework for the independence of constitutional courts is by and large adequate. All the same, some of the participating constitutional courts complained that they were short of staff and financial means.

As has become standard practice for this series of regional conferences, which was started by the Constitutional Court of Bosnia and Herzegovina in 2003, the speeches are also published in the court’s publications so that they can be made available to the professional public. The following constitutional courts in the region also reported on the conference on their websites: