Control over the legality of association or foundation activities is administered by the competent administrative State body and involves monitoring the situation around these activities. Sanctions that CSOs potentially can incur are mostly based on legal provisions, for example, the obligation of the organization to organize associations assemblies in terms stipulated by statutes, providing yearly financial report, etc., but they are rarely, if ever, enforced.

Under the Associations and Foundations Law, the authorities may close a CSO that fails to comply with the provisions governing its work. During 2019, 623 (560 in 2018) CSOs were dissolved or suspended, 385 (316 in 2018) of which were dissolved by official request and 218 (238 in 2018) by decisions of the CSOs’ executive bodies.

Associations and foundations are free to carry out economic activities whose purpose is the pursuit their defined goals. An association and a foundation may undertake economic activities which are not directly related to the achievement of its goals only by establishing a separate commercial legal entity; in such a case, the total profit from unrelated activities must not exceed one third of the organizations total annual budget, or 10,000 BAM (approx. EUR 5,000), whichever amount is higher. In 2019, 257 CSOs were registered in the Federation of BIH, and 565 CSOs in Republika Srpska, whose income exceeds BAM 50,000 ($ 30,000).

Freedom of peaceful assembly is guaranteed by the Constitution, positive regulations and international documents. It may be restricted only by law, specifically the RS law on Public Assembly (2008), the cantonal Public Assembly Law in FBiH, and the law on Public Assembly of BD (2012). A public assembly of citizens is defined as any organized assembly of citizens taking place at an appropriate place, whose number and identity is not determined in advance and which does not endanger: the rights of others; public morality; security of people and property; the health of persons involved or implicated; or obstruction of public traffic. The most common type of public assembly is that of peaceful assembly and public protest, although other types like street actions, performances, are also covered in the term “freedom of assembly”.

Ongoing social and economic crisis in BiH has inevitably led to a wave of public protests; organized by spontaneous crowds of citizens. The unexplained deaths of two young men in 2016 and 2018 triggered significant civil movements in Sarajevo and Banja Luka in 2018 that brought together large numbers of citizens, including the support of more than 200,000 people on social networks. Protesters accused authorities of covering up the killings and called for an end to the alleged government corruption and negligence. This was the first time since 2014 that BiH has seen massive public mobilizations. At the end of 2018, police engaged violent measures including beatings, arrests, and imprisonment to prevent protesters from gathering daily in Banja Luka’s central square. Three activists were sentenced to crimes against public order, carrying a maximum sentence of up to twelve years.

The Freedom of Expression is regulated by Constitutional laws at levels of Bosnia and Herzegovina, Federation of BiH, Republika Srpska and District Brčko as well as by Defamation laws at Federation BiH³, Republika Srpska⁴, and District Brčko⁵.

The prevailing view of CSOs’ representatives is that freedom of expression is violated in practice, although protected by both the constitution and the convention on human rights and freedoms. Legal provisions guaranteeing freedom of expression are in place. However, political and ethnic lines continue to divide the public sphere and drive the development of legislative proposals in the media sector. According to the European Commission Report from 2018⁶, political pressure and intimidation of journalists continued, including physical and verbal attacks. Best example that indicates the situation in Banja Luka is the Dragičević case.

Journalists continued to face interference with their work. Cases involving intimidation and threats to journalists (including those reporting on the ICTY decision on Prlić and others), verbal and physical attacks, hacking of websites, political, institutional and economic pressure and defamation continued to be reported. Authorities do not collect data on threats and attacks against journalists and media workers, and swift investigations and prosecution of perpetrators is not always ensured.

In August 2019, the BiH journalists’ association “BH Novinari” recorded 41 violations of journalists’ rights, including 3 verbal threats, 8 instances of political pressure, 6 physical assaults, and 5 death threats⁷. Most of the cases were reported to police and 15 cases were at the relevant prosecutor’s office. Although the number of solved cases has not significantly increased, “BH Novinari” reported that police was more engaged and proactive with cases than it was in the past, as well as that the other relevant State institutions communicated better regarding attacks on journalists. In January, the owner of the portal Visoko.co.ba received threats after publishing articles about nepotism. Photo journalist Adi Kebo was attacked and his camera was damaged in March by a politician. The both cases were with the relevant prosecutor’s office. By August 2019, there were 4 court convictions for attacks on journalists, including a four-year sentence for Marko Čolić for the attempted murder of journalist Vladimir Kovačević in 2018. The USAID-funded Independent Media Empowerment Project (IMEP) provides support for legal representation for media organizations and journalists targeted by politically motivated defamation lawsuits. During 2019, in two cases, the final decisions are enacted in favor of “Start” and “Info Radar”, both from Sarajevo. Additional available info is in the footnotes.

The existing legal framework is not restrictive, and it guarantees the Freedom of access of information (FOAI) to everybody, including the freedom of CSO employees and activists to receive, collect and distribute information. According to State and entity laws on freedom of access to information, disclosure is the rule, and non-disclosure its exception. Non-disclosure is exception in cases of specific commercial information, protection of private data and specific public interest. The regular term is a 15 days and can be prolonged by previous cases of non-disclosure. The sanctions are going from 500 to 7.500 EUR for institution and 500 – 5.000 EUR for officials. However, entity laws are not in compliance with State law regarding sanctions because breaching of provision FOAI at entities are regulated by other laws – criminal laws, misdemeanor law, administration laws and etc.

Various forms of violations were recorded in practice, such as the impossibility of determining accountability of public officials and the lack of adequate sanctions for withholding information, all underlining the necessity of harmonizing entity and State laws. With respect to intervention/interference from public authorities current practice still shows inconsistences between laws at different authority levels.

Tax treatment of CSOs is defined by Laws at the State and Entity level which are not harmonized, particularly regarding level of different stipulated rate of taxes for the same purposes. CSOs in both entities do not have to pay income tax on donations from budgets or other public funds, sponsorships or donations in cash and in tangible assets. Entity laws in BiH regulate the financial aspects of CSO operations. According to these laws, associations and foundations which perform non-profit economic activities for the purposes they were established are exempted from profit and income taxes. The Tax Law in RS was amended, and it now includes the regulations that associations and foundations no longer have to pay income taxes on donations received from public funds, sponsorships or donations in cash or in-kind. Donations from government institutions to CSOs are also not taxable. Before the law was amended, these benefits applied only to humanitarian organizations. IPA funds and funds from the US government (USAID and such) are excluded from VAT which is not the case with all foreign sources. CSOs can generate income through performing economic activities. If CSOs earn up to 50.000 BAM (app. EUR 25.000) for service provision they are excluded from paying VAT. In 2019, only 242 registered CSOs in FBiH and 543 registered CSOs in RS had income exceeding this amount. In January 2018, the government of RS adopted the Platform for Development of Social Entrepreneurship, which provides a rationale for the development, promotion, and support of social entrepreneurship. CSOs are also legally permitted to compete for government contracts at all State and entity levels.

CSR still suffers from inadequate regulations and is still underdeveloped in BiH. The companies, weather private or public do offer some funds in a form of sponsorships of programs and projects. The possible sponsors are not stimulated to support the work of CSOs through the entities Laws on profit and Laws on income which are not mutually harmonized.

Taxpayer donations to legal entities in the Republic Srpska are credited with expenditures of up to 3% of the total annual income from donations to organizations providing humanitarian, cultural, sports and social services and 2% for sponsorship expenses. In the Federation of BiH, expenditures for donations for humanitarian, cultural, educational, scientific and sporting purposes, that are given to legal entities or individuals who have no other income are recognized as tax-deductible expenditure up to 3% of total income in the taxable period for profits while sponsorship expenses are up to 3%.

In the case of individual philanthropy in the Federation of BiH donations of up to 0.5% of the income generated in the previous year given in goods, items or money allocated for cultural, educational, scientific, health, humanitarian, sports and religious purposes, to the associations and other entities carrying out the activity in accordance with special regulations are recognized as an expense. Exceptionally, a donation above the prescribed amount is fully recognized, provided that it is made on the basis of decisions of the competent ministries on the implementation and financing of special programs and actions for the general social interest, but not for the regular activity of the recipient (namely gifts).

In BiH there is a law on budgets which regulates financial support of the State. Each Canton as well as entities and State have laws on financial support. The municipalities are also anticipating the funding for CSOs in their budgets. The ratio of the total budgeting for CSOs in accordance to previous research is from 62% from local level, 22% from entities, 25 from Cantons, and 6% from State level.¹⁰ The support to institutional development of CSOs project support and co-financing of EU funded projects is regulated by law on Budgets. There is a national level mechanism for distribution of public funds for CSOs which is decentralized through all ministries with separate procedures.

Government institutions’ that supports funding of non-governmental organizations are most often awarded through public calls for funding proposals including them in regular budgets or through public procurements. All three manners of funding are used at all levels of government. The ministries that allocate funds for such purposes publish the requirements for their allocation through public announcements for CSOs. The legal framework enables timely, informative, transparent and fair allocation procedures. In practice it is far from such approach and mostly depends on concrete institution and leading political power.

The distribution of funds depends on the level of authority and on the particular institution allocating public funds. The amount of funding which is planned to be allocated to CSOs is done by the level of authority- ministries and municipality mayors are mandated for their distribution. The main issue for public funding distribution is following procedures of the funds collected by lotteries and being distributed for humanitarian purposes.

Results that come from the conducted FOAI survey, interviews and desk research has shown the key shortcoming when it comes to distribution of funds the distributions by sector and the domains of work and activities of CSOs that the funding is targeted to. Calls for funding lack a clear field or type of focus activities. This leads to more quantity than quality in resource distribution- awarding more small amounts of money to larger number of CSOs which are then insufficient for carrying out project activities.

Some government bodies have a clear decision for distribution of funds and/or monitoring of the distribution of State funding. The procedure for distributions of public funding are partially transparent and legally binding. Criteria for selection of applications have to be clear and published in advance as procedures need to address issues of conflict of interest in decision-making. Funds from government institutions are most often awarded through public calls for funding included in regular budgets and public procurements. However, the most of information on the funded projects are not available and they are not following any procedures against conflict of interest. The procedures are generally simple while the most difficult application is one using the LOD methodology implemented by the municipalities under UNDPs LOD project i.e. used by half of the municipalities in Bosnia and Herzegovina.

Administrative procedures of the civil service regulate the accountability for the monitoring and evaluation of awarded public funds. This does not apply to monitoring and evaluation of funded projects or programs. Lack of trained staff, inadequate resources, low levels of awarded funds, lack of rulebooks and regulations are some of the reasons for that. Since the methods and type of reporting vary between institutions there is no possibility for a standardized reporting system.

One of the possible mechanisms for monitoring and evaluation of project activities could be done by field visits which government institutions aren’t implementing. The public is not informed about the project outcomes financed through public calls since there is no evaluation of project results.

Republika Srpska has adopted a methodology for assigning funds to CSOs in 2015 and all Ministries in this entity were asked to follow this methodology furtherly. Federation of BiH has a Decision on financing of CSOs which is based on LOD methodology but still hasn’t been carried out properly. On the local level more than 70 municipalities and cities out of which 45 in FBIH have adopted LOD methodology and carries it out differently on a larger or smaller scale. The existing system of financing of associations and foundations from the budget of FBiH is inefficient and also based on LOD merely non-transparent and leaves room for doubt in the legality of money since the funds are constantly decreasing. Public funding of CSOs is not serving their purpose which should be complementary to public policies and services. The criteria for awarding public funds are vague or too general with the question of scoring. There is a need for the government and CSOs to cooperate in the segment of public funding of CSOs as well as in the establishment of institutional mechanisms for cooperation.

All three laws on associations and foundations in the articles that treat assets of associations and foundations stipulate among other things that non-financial support may consist of income and gifts from physical and legal persons, rent revenues, passive revenues (interest and dividends), and of other revenues pursuant to the law. The form of grants in-kind is prominent while various levels of government often provide premises for CSO operations. Officials are not devoted to support development of CSOs but rather to have instrument for collecting information and get involved in promotion activities for elections or public debates, consultations, etc.

A basic form of this support is through permitting use of premises for the organization of various events (presentations, conferences and competitions) without compensation, although in some cases CSOs were asked to pay VAT for the use of certain premises.

Regarding longer-term use of premises for daily CSO operations it’s noticed that when this type of support is extended the treatment of different civil society organizations varies. Preference is generally given to organizations of significance for the ruling circles and those whose target groups constitute a considerable part of the electorate such as organizations of veterans and disabled veterans, or organizations with loyalty or affiliation to a certain political party. There is a widespread view that certain organizations enjoy greater sympathy and protection than others including access to governmental institutions and discussions about this type of support. Non-financial assistance in the form of information, training and education, although it is of great importance is extended only on very rare occasions.

Employment in CSOs is based at positive legislation of BiH. The regulation of the labor-legal relations in associations and foundations is not provided neither in Associations and Foundations Law at level of BiH, FBiH, RS or District Brčko.

Law on Labor within the Institutions of Bosnia and Herzegovina is clear and applies to the regulation of employment in institutions of BiH and its bodies, as well as of employees of public companies of BiH, associations and foundations of BiH, inter-entity corporations and other institutions for the exercise of additional competencies in BiH, unless otherwise provided by another law.¹²

According to this the law on labor in the institutions of BiH applies to associations and foundations of BiH where an institution of BiH appears as the founder, but does not apply to the associations and foundations were BiH or its institution are not the founder. The law should not apply to domestic non-profit organizations founded by individuals who have acquired legal personality by registration. If the founder of the association or foundation is not the State of Bosnia and Herzegovina, or any of the institutions of Bosnia and Herzegovina, it is legally groundless that legal framework which regulates labor relations in them is the same as the one for the institutions of Bosnia and Herzegovina and its bodies. If that would be the case, employees would automatically have the status of employees in the institutions and bodies of BiH, which is by no means the purpose of the law on labor in the institutions of BiH.

Labor relations are regulated by the Entity Labor Laws and applied to all legal entities (except CSO registered at State level). CSOs should be registered at the State level and Entity Laws should be applied, depending on the CSO headquarters which is the case among CSOs registered at other levels of authorities.

In accordance to the statistics there were 2.064 persons employed in CSOs, while in RS (by 30.9.2020) 1.050. During 2018 there was 1.895 in FBiH and 1.044 in RS. There is no incentive programs for employment in CSOs.

There is no legal framework defining the respective rights and responsibilities of volunteers and volunteer-involving organizations at the State level.

BiH Ministry of Justice proposed 3 times a law on volunteering with the expert assistance and consultations from the relevant CSOs, but it hasn’t been adopted. The main reason is the lack of political effort from the members of the State Parliament from the Republika Srpska to adopt laws and strategies at the State level for areas that they consider to be under Entity’ jurisdiction. Since the jurisdiction over volunteering is not clearly prescribed, there is still no political effort for this Law to be adopted.

Last progress at the FBiH level has been made in 2012 when the Law on volunteering was adopted. Volunteers from the Federation of BiH have been provided with the legal solution according to which volunteering undertaken in their professional fields will be recognized as work experience. CSOs generally questioned the justification of this rule. The Law on Volunteering can by no means derogate the laws governing labor relations, which make it unenforceable.

In the RS, there were no changes from the adoption of the law on Volunteering in late October 2013, after many years of CSO proposing it. The law regulates the principles of volunteering and describes the rights and obligations of both volunteers and host organizations. In accordance with recommendations of the Council of Europe, the law does not recognize and does not support volunteering as primary tool for solving of unemployment problem, as it can lead to exploitation of volunteers as free labor. The law on Volunteering also defines unique volunteer’s Identification Document for all volunteers where any volunteer work can be evaluated and officially recorded. It also regulates corporate governance and is generally considered better than the FBiH law among the civil sector. In addition, in 2018 the law on Volunteering was adopted in Brčko District. In Federation BiH the responsible institution for implementation of the law on Volunteering is Ministry of Justice FBiH while in Republika Srpska it is Voluntary Service RS. There are no any special incentives for employment of volunteers.

Number of international and European documents legally and/or politically oblige BiH to respect certain standards in the field of education. The Law on Adult Education defines non-formal adult education as: “an organized process of learning and education, aimed at training, specialization and complementation of knowledge, skills and abilities, according to components of the formal education program (modules), and special programs for acquiring knowledge, skills and capabilities.” Non-formal education can be organized within educational institutions and specialized CSOs which meet the requirements of the program they perform.

In accordance with major human rights instruments, democracy and human rights issues were introduced to primary and secondary schools in BiH, and continue to be in place up to day, in the form of extracurricular activities or units within other subjects. In the last ten years, civic education has become a part of the curriculum in most primary and secondary schools due to the adoption of the framework Primary and Secondary education Law in BiH (2003), and the Common Core of Curricula for Primary Schools (2003). Although the implementation of the latter is not equally applied to all parts of the country, the test results of pupils’ knowledge confirm that democracy and human rights contribute to the understanding of notions, principles, institutions and practices in the field of democracy, human rights and citizenship.

The Agreement for cooperation between the Council of Ministers and CSO in BiH was signed in 2017. Several very clear commitments for the Council of Ministers of BiH stemmed from the Agreement: (1) establishing an advisory body for cooperation with civil society organizations, (2) strengthening the role of the Sector for Legal Aid and Development of Civil Society as a contact point of the Council of Ministers for cooperation with civil society organizations, (3) adopting a civil society development strategy, (4) ensuring transparency of funding for associations and foundations, and (5) strengthening the role of civil society in the European integration process. However, the adoption of the relevant amendments or by-laws are still in preparation phase. Commitment that has not yet been fully fulfilled is the adoption of the strategy, as the formation of an advisory body is pending. The Decision on the formation of this body has been adopted and needs to come into force officially. The body will have seven members, all of whom are from civil society, which is the only such case in the region. The appointment of these members is currently pending. The CSOs are not directly included in the implementation of the Agreement only as recommendation for transparency and establishing procedures. The most of responsibilities are on the Council of Ministers BiH. The commitments are related only for the CoMs’ BiH 9 ministries and few agencies, while the whole State system bellow, which present more than 90% of institutions, does not depends on the signed Agreement. The other levels of authorities mostly do not have any kind of documents that regulate cooperation between the government and CSOs or, if they exist, they are either not in use or are not respected.

The Advisory bord for cooperation with CSOs, composed of 7 distinguished persons from the sector, will have the mandate to discuss and advice Council of Ministers regarding all issues related to civil society and possible areas of improvements of cooperation. The engagement of members is on voluntary basis as well as any of their actions. The Ministry of Justice and Sector for legal support and development of civil society will be at their disposal in order to get all necessary information, prepare the meetings and communicate with the General Secretariat of Council of Ministers BiH.

There were more than 90 municipalities as well as 3 Cantons and District Brčko that signed the Agreement for Cooperation or Strategy for Development of Civil Society but practically, they are not in use mainly because the both sides do not recognize usefulness of such cooperation. On the other hand there is basic lack of mutual respect among the sectors, the both sides do not see any kind of benefit in cooperation except acquiring the fund at the side of CSOs and political support of wider public in cases of election. In that way the non-transparent distribution becomes very visible.

There is an obligatory document – the Rules of Consultation – which provides CSOs with the possibility for participation in the preparation of legal documents from the earliest stages through comments submitted in the consultation process. Consultations are obligatory for all ministries. All persons or institutions interested or affected by certain legislation must be involved in the minimum consultation processes on all draft legislation. In practice the situation is absolutely contrary. Except Council of Ministers BiH through e-Consultation platform all lower levels are not provide any consultation process. There is not any organization that can prof involvement in the process, in any of stages.

At the level of Council of Ministers there is document “Rules for Consultation in process of creation legal acts”, in Federation BIH, there is a document “Regulation on rules for participation of interested public in process of creation of federal legal and other acts” as well as in Republic of Srpska there are “Guidelines for republic organs of self-governance on public participation and consultations in creation of laws”. The education of civil servants is going through the yearly modules, which is not enough and appropriate. It is rather seen as proceeding the formal procedure to fulfilled obligation than to improve capacities. The result is that administration is still in stagnation, mutual respect depends on individual will, scope of cooperation is limited at the stipulated forms.

The e-Consultation platform¹⁴ enables citizens and civil society organizations to access via the Internet the complete and timely information on the legislature processes. It also provides a reliable communication channel for citizens’ participation in public policy making. The ideas, suggestions and additional information collected in this way will be used for improvement of public policies under the jurisdiction of the BiH institutions. This web site is a modern and user-friendly tool for the interested public to provide their inputs to draft public policies under the jurisdiction of the BiH institutions of concern to them. However, the CSOs representatives claimed that the platform is little bit complex, particularly regarding the process of necessary steps in placing the proposals. On the other hand, even the e-platform improved the process of consultation, the most of laws and policies at level of Council of Ministers are not directly related to everyday citizens’ interest.

By the end of 2019, sixty-three State institutions on the level of the Council of Ministers of BiH (up from fifty-one in 2018 and thirty-eight in 2017) registered on the platform, 539 public consultations had been held (up from 191 in 2018), and 445 reports were published (up from 151 in 2018). More than 200 individuals and organizations actively used the platform for the first time during 2019, while the total number of users was over 1,000. A similar platform has been under development in FBiH for some time but was still not functional by the end of 2019.

The consultation at the lower levels are not implemented regularly, practically both Governments, of Federation BiH and Republika Srpska, don’t communicate the public in proper way and in accordance to their obligation and relevant Regulations. They don’t invite representatives of CSOs, distinguished experts, or interested groups, to exchange the information in order to prepare the proper drafts. The general opinion could be that the both sides could improve the process: the government through higher interest in gathering information from the site and CSO in building its capacities to properly participate in discussion. The consultations at the cantonal level are supposed to be implemented in accordance with the documents relevant for Federation BiH.

The current legislation of different levels provides possibility for cooperation between public institutions and representatives of civil society organizations at relevant levels of bodies who are engaged in decision-making.

The process of establishing the advisory body of the Council of Ministers of BiH for civil society was restructured in 2019. This body, in accordance to Agreement on Cooperation with Civil Society in BiH, is now consists of seven CSO representatives (before 5 members) and will be involved in all of the Council of Ministers’ activities related to civil society.

At the other levels, the process is going from case to case, engaging representatives of CSOs particularly regarding their expertise and valuable contribution to the creation of some decisions or documents. There is not process of selection but direct invitation in case that some specific issues were elaborated and the evident lack of competences among civil servants in that area is obstacle to prepare material. Generally speaking, the involvement of CSOs’ representatives is rare and sporadic, rather exception than a rule.

The Public Procurement Law in BiH contains the provisions that govern CSO service provision. In practice the government generally does not appreciate CSOs’ contributions, including service provision in areas that government agencies fail to reach, engagement of individuals who are considered hard to employ or who belong to marginalized groups, and commercial activities in remote rural areas. This conclusion was made having numerous interviews during several years as well as surveys, particularly for 2019. Municipal and cantonal governments occasionally contract with CSOs, however, distributed support is often based on political connections. The engagement of CSOs in service provision is very narrow and particularly oriented at safe houses, daycare centers for persons with mental disabilities and abandoned children.

The conditions for engagement of CSOs in providing services are the same as for companies. The licenses are obligatory as well as appropriate premises for implementation of the contracted services. There are not any special difficulties in obtaining the licenses having in mind that the main requirement for that is adequate grade in education and proper space.

CSO “Cure” was engaged by Ministry of Security in research of gender component and perspectives in cases of emergency and natural disasters as important issue particularly based on experiences during enormous floods in BiH in 2014. and in period after.

The legislation does not contain provisions regarding obligatory funding by the State of CSO-provided services. In practice CSOs continuosly provide mostly social services including safe houses, daycare centers for persons with mental disabilities and abandoned children, and training for youth and the elderly. There are not any concrete numbers or percentage of engagements, nor information of engaged CSOs in migrant crisis because it happens spontaneously, practically without any organized State activity except activities of Red Cross, Merhamet, or international CSOs. CSO services are driven by the limited funding available, which is often focused on areas determined by government strategies and decisions rather than local needs and priorities.

The main legal provisions governing the procedure for contracting services are Public Procurement Law in BiH. In practice, in general there are public calls for provision of services and procedures in accordance with Public Procurement Law in BiH. However, many engagements are going directly to the CSOs that are close to political parties on power, contracting without procedures, etc. There is lot of space to make the area more transparent and accessible to other CSOs.

The legal provisions on accountability, monitoring and evaluation of service provision are mainly part of internal policy documents of the relevant institution/authority level. In practice, State officials have sufficient capacity to organize the procedures to control and make evaluation of services provided by CSOs. This is covered by legislative framework and there are clear quality standards and monitoring procedures for services. Practice shows that periodical reporting to competent institutions is still the main form of assessment of the provision of these services. Access to information on provision of services and services quality is mainly available on the websites of relevant institution.