Scope of obligation to comply with the Constitution

According to its position, the Constitution is the highest legal act in the State.³²² It is not only legally binding on the executive power and administration, but on the legislature and judiciary, including the Constitutional Court. Pursuant to Article VI.1 of the Constitution, the Constitutional Court is even obliged to protect the Constitution. That linking to the Constitution, i.e., the constitutional connection, is another element of a legal state.

The concrete consequences of this connection with the constitution have become a matter of dispute, and the judicial practice of the Constitutional Court experienced a certain change in this regard. The Court originally supported the opinion that, due to the supremacy of the Constitution, the state authorities should simply disregard unconstitutional laws and directly invoke the BiH Constitution.³²³ In that manner the courts would preserve lawfulness, which is one of their main tasks arising from the principle of a legal state.³²⁴ Moreover, the Constitutional Court established that if ordinary courts have doubts concerning the constitutionality of laws that should be amended, they are under an obligation to initiate the proceedings for the purpose of concrete (incidental) control of constitutionality according to Article VI.3(c) of the BiH Constitution.³²⁵ That is to say that the courts enjoy certain discretion when it comes to the assessment of a possible lack of constitutionality, but not when it comes to their obligation to initiate proceedings if they are confident that there is an unconstitutional legal ground for taking a decision.

The Court subsequently corrected the above stand-point.³²⁶ Namely, the Constitutional Court is still of the opinion that an ordinary court, due to the supremacy of the Constitution, shall not apply an unconstitutional law. However, the court is now obliged to bring the unconstitutional norm under its control (review). If the result of the control (review) shows that a certain law is consistent with the Constitution, the court shall apply the result. If the court becomes convinced that the law is unconstitutional, the relevant court will no longer be allowed, by invoking this Constitution, to simply disregard the law and adjudicate the relevant case. Now, the court is under the obligation to “forward” the constitutional issue to the Constitutional Court of BiH in accordance with Article VI.3(c) of the BiH Constitution.³²⁷ In the meantime – even though the Constitutional Court has not given an explicit opinion about that matter – the proceedings before the lower instance court must be suspended until the Constitutional Court adopts a decision.

So, it remains unclear whether a norm, which is considered to be unconstitutional, should be bypassed by lower instance courts, i.e., whether the ordinary courts should simply decide not to apply that norm without initiating proceedings before the Constitutional Court and without waiting for its decision. The BiH Constitution does not contain clear regulations such as, for instance, the norm in Article 100 of the German Basic Law.³²⁸ Article 100 of the German Federal Constitutional Court stipulates that there shall be a constitutional monopoly in favour of the German Constitutional Court (Bundesverfassungsgericht). The purpose of this norm is to give the Federal Constitutional Court the final word in interpreting the Basic Law. Contradictory interpretations of the Basic Law should be avoided for the sake of simplicity of law and legal certainty; and the lower courts must not place themselves above the will of the legislature.³²⁹

Due to the shortage of similar regulations in the Constitution of BiH, it is necessary to find a solution within the valid regulatory framework of the BiH Constitution. The supremacy of the Constitution, (Article III.3(b), the first sentence of the BiH Constitution) and principle of legal certainty (as a part of the principle of a legal state according to Article I.2 of the BiH Constitution) are the most important interpretation tools. As to the constitutional human rights and freedoms guaranteed by the ECHR, which could be considered a special case (an exception), we might support the opinion that the “direct application of rights” (Article II.2 of the BiH Constitution) from the Convention could be comprehended in a way that ordinary courts are under the obligation to directly apply those rights and freedoms. Therefore, ordinary courts should apply them without taking into account the laws which are contrary to them and without forwarding the issue of the constitutionality of those laws to the Constitutional Court (or the issue of their compatibility with the Convention) and without waiting for the decision of the Constitutional Court in that regard.³³⁰ Otherwise, the constitutional-legal obligation of “direct application” of the ECHR would be irrelevant.

However, making this type of conclusion based on the constitutional-legal norm requiring “direct application” of the ECHR is not imperative. The direct applicability of rights under the ECHR, according to Article II.2 of the BiH Constitution, should primarily mean as follows: in order for these rights and freedoms to be applicable in BiH, no special act by the legislature is required in order for those norms to be incorporated in the legal system, i.e., unlike other agreements according to international law. Accordingly, the courts should take into account the rights from the ECHR when adopting decisions and they should also conduct a control (review) as to whether a certain norm – which is decisive for a dispute – is consistent with the ECHR (and definitely, whether it is consistent with the Constitution).

It is quite another issue whether the courts have the right to disregard the application of a specific law if they come to the conclusion that the related law is in contravention of the ECHR and if they fail to forward the case to the Constitutional Court, which should take a decision (Article VI.3(c) of the BiH Constitution). If that solution is made possible for the rights under the ECHR, the same should apply to the entire constitutional law. The above is true inasmuch as the BiH Constitution does not contain normative-hierarchical differences,³³¹ as it is directly and equally applied in the whole territory of the state, and consequently in the Entities, and as it excludes application of any lower-ranking unconstitutional law (Article III.3(b), the first sentence of the BiH Constitution). The effectiveness of the Constitution and the human rights and freedoms safeguarded under the Constitution, ECHR and Annex I to the Constitution does not primarily depend on whether the lower instance courts must wait for the decision of the Constitutional Court. The effectiveness depends on whether the ordinary courts take into account the BiH Constitution at all or whether they keep it in mind when taking decisions, as well as on the fact that a possible unconstitutional law is not applied while proceedings before the ordinary courts are suspended and the proceedings before the Constitutional Court of BiH are still in progress, as referred to in Article VI.3(c) of the BiH Constitution. Admittedly, as to urgent cases, an injured party may seek interim legal protection even from the Constitutional Court itself.

It is true that the protection of human rights and freedoms in the instant case would be more effective, or at least faster, if the lower instance courts could simply evade the law which is inconsistent with the ECHR without waiting for the adoption of the decision by the Constitutional Court. However, such an interpretation becomes questionable for several reasons. On the one hand, because of the fact that hardly correctable presumptions would be created with respect to the cases in which the Constitutional Court, after conducting the control (review) of constitutionality, would establish that a certain norm is consistent with the BiH Constitution. In the meantime, the legally valid decisions adopted under such circumstances could be corrected only in a renewed proceeding. On the other hand, lower instance courts may be tempted not to forward a disputable issue to the Constitutional Court – since it would be possible for them to end the proceedings, which is independent of the decision of the Constitutional Court but in compliance with the ECHR (according to their own assessment). However, such an approach might have undesirable effects: a norm that is contrary to the ECHR would remain in force and be applied to other cases. Finally, only by the existence of the Constitutional Court’s monopoly is it possible to prevent contradictory interpretations of the same norm and ensure legal unity and legal certainty. The aspect of legal unity is very important for Bosnia and Herzegovina since in many legal fields, except for the Constitutional Court, there is no instance of supreme judicial review at the state level which would take care of a unified and harmonized application of law in the Entities.

In view of the aforementioned, a solution presented in the Constitutional Court’s Decision No. U 106/03 is not a convincing one since that decision gives implications of different treatment depending on whether the disputed norm is in violation of the BiH Constitution and ECHR or not. The BiH Constitution is directly applicable in Bosnia and Herzegovina, as are the rights under the ECHR – neither more nor less. The suggested solution relies on the wrongly understood term of “direct” application of the ECHR. The term “direct application” should be perceived only in connection with mutual effect of international law (ECHR) and constitutional law. In order to apply the ECHR, no additional order for its application is required, neither is any other act required for its incorporation in the domestic legal system.

Therefore, the courts shall be obliged to examine not only whether a norm intended to resolve a dispute is consistent with the fundamental rights under the ECHR, but also whether it is consistent with the remainder of the Constitution and constitutional provisions. If a conclusion would be made that it is inconsistent, then the courts would have to suspend the proceedings in progress so that the issue of compatibility with the BiH Constitution and ECHR could be forwarded to the Constitutional Court. After the decision is adopted the lower court may resume the proceedings while complying with the decision of the Constitutional Court.