Obligation as to the positive protection

Pursuant to Article 1 of the ECHR, the BiH Constitutional Court and the Human Rights Chamber took from the Strasbourg jurisprudence the idea about the positive obligation of activity of the state for the sake of efficient protection of fundamental human rights and freedoms.⁴⁷⁶ Under Article 1 of the ECHR (obligation of respect for human rights), the high contracting parties guarantee to all persons under their respective jurisdiction the rights and freedoms laid down in Part I of the ECHR.

According to them, the State not only is obliged to respect fundamental human rights and freedoms, so as not to unjustifiably restrict them (defence function or the so-called dimension of human rights and freedoms), but the so-called positive obligation lies within the competence of the State and its authorities, that is the obligation to act in order to protect fundamental human rights if necessary for efficient protection of human rights; the same applies to Article I of Annex 6 to the GFAP.⁴⁷⁷ Not only that the State has to create appropriate structures in order to ensure implementation of fundamental human rights and freedoms, but it has to ensure appropriate instruments to prevent their violation. Moreover, the state must provide for the instruments for inquiry into and possible punishment of the already existing violations.⁴⁷⁸ The legislature must create the necessary framework conditions in order for an individual to be able to actually exercise his/her rights.⁴⁷⁹

Thus, for instance, the investigative judge also must examine the allegations and establish the facts of the case if a prisoner informed him/her that police had abused him/her.⁴⁸⁰ Prior to extradition, expulsion or only informal “surrender” of a certain person to the authorities of another state, the state surrendering the person must request information as to the legal grounds for detention, and then examine them.⁴⁸¹ Otherwise, the state infringes upon its obligation of offering protection under Article 1 of the ECHR in connection with a violation of a human right in the present case. The term “jurisdiction” should thereby be interpreted in broad terms.⁴⁸² Therefore, FBiH and BiH, prior to surrendering the Algerians to the U.S. military forces, must have requested information from the United States as to the legal grounds for detention, although neither the Federation of BiH nor BiH, under the Dayton Agreement, have jurisdiction over the military forces of the United States stationed in BiH.⁴⁸³

In Case No. AP 164/04, the appellants claimed that their right of ownership was violated, because they were unable to collect their savings deposits from the accounts in the branch offices of the Ljubljanska Bank and the Investbanka in Bosnia and Herzegovina which they had deposited prior to the break-up of the SFRY. Indeed, the BiH Constitutional Court dismissed the claim of the appellants that Bosnia and Herzegovina was responsible for the payment of their so-called old foreign currency savings, reasoning that the state did not take over the branch offices of the mentioned banks, but only the rights and obligations, thus the standing to be sued does not exist. Considering that the Ljubljanska Bank and the Investbanka have seats outside Bosnia and Herzegovina, the Court held that no BiH bank is obliged to make the payment, but rather some Slovenian or Serbian bank.⁴⁸⁴ Notwithstanding this, the BiH Constitutional Court confirmed that the state is obliged to undertake positive (affirmative) foreign policy measures,⁴⁸⁵ in accordance with its constitutional competences,⁴⁸⁶ in order to protect the ownership of its citizens abroad. In addition, on 29 June 2001 the state had signed the Succession Agreement with the former Yugoslav Republics giving rise to an obligation to commence, under the auspices of the Bank for International Settlements, negotiations aimed at settling the problem of savings.⁴⁸⁷

Case No. CH/03/14688 et al. was related to the inability of biological parents to get in touch with their children whom they had placed in a children’s home and who, as a result of the armed conflict, had been sent to Italy through the state institutions. The Human Rights Commission within the BiH Constitutional Court obliged the state in the present case to unfailingly provide the parents with all available information as to the whereabouts of their children and their respective status.⁴⁸⁸ Besides, the state was ordered to do everything possible in order for the parents to get in touch with their children.⁴⁸⁹