Lana Bubalo, Associate Professor of Law at University of Stavanger School of Business discusses the legal responsibility of the Bosnia and Herzegovina's government and public officials to actively protect life during the Covid19 pandemic.
Bosnia and Herzegovina (3.2 million citizens) is according to Worldometer in 5th place in the world by the number of deaths from COVID-19 per 1 million population. It tops the list in the region of South-East Europe with 212 deaths per 100.000 people.
In the state that has struggled with a dysfunctional political system since its independence in 1992, the pandemic seems to have revealed the full extent of its internal problems.
While the whole world was making plans and signing contracts to buy COVID-19 vaccines before they were even approved, Bosnian government decided to lay back and rely on COVAX mechanism. In the end of March 2021, COVAX managed to deliver modest quantities of vaccines to Bosnia and Herzegovina; making it one of the last countries to start immunizations against COVID-19 in Europe. Due to raising vaccine nationalism, it is now clear that COVAX will not be able to deliver enough doses to stop the rising number of deaths. The country eventually received a smaller amount of vaccine donations from countries such as Serbia and Turkey, which was negatively perceived in the public as a sign of the ineptness of the country’s own government.
Citizens file a criminal complaint
In despair, a group of citizens, filed a criminal complaint against the state’s top politicians for failing to procure the most sought-after goods in the world. The online petition in support of the complaint received more than 8,000 signatures.
The complaint was filed against Prime Minister of Federation of Bosnia and Herzegovina, Chairman of the Council of Ministers of Bosnia and Herzegovina, and Ministers of Health Civil Affairs of Federation of Bosnia and Herzegovina.
In the application, it is argued that the above-mentioned officials abused their office and failed to meet their legal obligations to ensure realization and protection of human rights, such as the right to life and right to health. The consequence of their passivity is the spread of infectious disease, death, and collapse of the health system of the country. Even though the government held 33 sessions in the period from September 18, 2020 until the complaint was filed in March of 2021, not once was the vaccine procurement on the agenda of the government. The government of Federation of Bosnia and Herzegovina, an administrative part of Bosnia, decided to form an ad hoc team to start negotiations with vaccine producers for the first time on March 5, 2021.
Should the prosecutor’s office decide to go forward with this case, and should the court accept it, Bosnia and Herzegovina could become the first country in the world where the state officials could be held personally liable for the excessive deaths from Covid19. According to the latest information, the applicant has given a statement to the prosecutor, and the case seems to be moving forward under huge pressure from the public.
The interesting legal question that arises in this case is whether the state can be held responsible for the lives lost as a result of not obtaining the vaccines and introducing epidemiological measures in time? And can the members of the government be personally responsible for failing to act?
The violation of the positive obligations of the state
The pandemic threatens enjoyment of several human rights including the most fundamental of them all— right to life and right to health.
The right to life implies that states not only have to refrain from intentional and unlawful deprivation of life but must also take appropriate steps to safeguard the lives of those within their jurisdiction. This means that there is an obligation to actively prevent death. The fact that the Bosnian government has failed to do so by not acquiring vaccines in time could therefore lead to a successful application for violation of the European Convention on Human Rights which Bosnia and Herzegovina is a party to.
According to WHO Constitution (1948) the right to health envisages “…the highest attainable standard of health as a fundamental right of every human being.” Bosnia and Herzegovina is a party to several human rights treaties that prescribe right to health including Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights. The Covenant is included in the Annex 1 of the Constitution of Bosnia and Herzegovina, and the right to health is hence a constitutional category.
This right includes the right to prevention, treatment and control of diseases and access to essential medicines. In fact, States must make every possible effort, within available resources, to realize the right to health and particularly to take steps in that direction without delay. One might argue that Bosnia and Herzegovina, by not acquiring vaccines has failed to actively secure the effective enjoyment of this fundamental right in a timely manner.
Abuse of office
According to the applicants of the criminal complaint, the severity of the responsibility for excessive deaths from Covid19 goes beyond state responsibility. The complaint is, inter alia based on the violation of Criminal laws of Federation of Bosnia and Herzegovina Article 383. This article states in paragraph 1 that “an official or responsible person in the Federation of Bosnia and Herzegovina institutions who, […] fails to execute his official duty […thereby] causing damage to another or seriously infringes rights of another, shall be punished by a term of imprisonment of between six months and five years.”
This is a blanket provision referring to other provisions, in this case provisions of Healthcare Law and the Law on the Council of Ministers of Federation of Bosnia and Herzegovina, which define the obligations of the federal government.
The purpose of this provision is to ensure government efficiency and to secure citizens’ trust in government and legal order in general.
Unlike Article 382 paragraph 2, which implies that the abuse of office resulted in profit, in paragraph 1 cited above the abuse of office can lead to either material or non-material damage. Hence it is not necessary for the official to have obtained direct profit as a result of failure to execute official duty. As for the subjective element, it is required that the public official acted with intent. Proving the mental element would probably be the biggest challenge for the prosecution in this case.
There are a few precedents where high-ranking public officials have been indicted and prosecuted for abuse of office. In most of these cases, however, the legal processes have not resulted in a conviction.
The nonfunctional constitutional system
The public officials are justifying their passivity with a lack of mandate, blaming each other for failing to act. Namely, Bosnia has a highly and dysfunctional system of government unprecedented in modern world.
The Dayton Peace Accords in Annex 4 contains Bosnia’s Constitution. The main goal of this Treaty was to stop the war in 1995 and it has since been criticized for creating and maintaining a failed state.
In its constitution, Bosnia is defined as a federal state, consisting of two federal units called entities: Republic of Srpska and Federation of Bosnia and Herzegovina. Brčko has a particular status as a district. Federation consists of 10 cantons. Each of these levels have their own governments, making the state slow and bureaucratic.
There is for example no Ministry of Health at the state level and hence no coordinated health policy, which is proving to be lethal in the case of a pandemic. The Ministry of Health of the Federation on the other hand does not have the mandate to acquire vaccines directly from producers in accordance with Federal Medical Products Act and Public Procurement Act, and, so far, no efforts have been made to change the legal framework to enable this. Hence, there seems to be a legal Gordian knot that needs to be cut.
It is clear that many lives could have been saved had the politicians acted responsibly and had the vaccines been available to a larger extent sooner. The government of Bosnia should have had a plan B in this regard, like other countries had, not relying solely on COVAX mechanism. It is indisputable that government has obligations towards its citizens in a democratic society, even more so in the time of public health emergencies.
Even though one can argue that the smaller and poorer countries have more challenges competing for vaccines with the richer nations, this cannot exempt the government from responsibility. The example of neighboring Serbia, one of the champions in vaccination in Europe, shows that it is indeed possible even for smaller states to obtain enough vaccines through “vaccine diplomacy” to start a successful vaccination program and save the lives and health of its citizens.
It is interesting to see whether such responsibility of the government and its officials will become an issue in other countries as well. For instance, one could ask if governments and public officials could be held responsible for downplaying the threats of the virus and refusing to order a lockdown (Brasil), or opening up the country too fast thereby causing new waves of COVID-19 infections (Chile).
[Lana Bubalo is associate professor of law at University of Stavanger School of Business]
Suggested citation: Lana Bubalo, Bosnia and Herzegovina’s Legal Responsibility for Failing to Procure COVID-19 Vaccines, JURIST – Academic Commentary, April 17, 2021, https://www.jurist.org/commentary/2021/04/Lana-Bubalo-Bosnia-Herzegovina-COVID19-Vaccine-Failure/.
This article was prepared for publication by Anne Bloomberg, a JURIST staff editor. Please direct any questions or comments to her at firstname.lastname@example.org
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