Hierarchy of norms

“The Entities and any subdivisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina. The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.”⁵¹⁷ The Entities were given a three-month time limit to bring in line their respective constitutions with the BiH Constitution.⁵¹⁸ This is how the normative and hierarchic priority of the BiH Constitution over the ordinary law of Bosnia and Herzegovina, and over the constitutional and ordinary laws of the Entities, has been unequivocally laid down as a constitutional principle.

When compared to the ordinary law, it follows from the aforementioned higher status of the BiH Constitution that the BiH Constitutional Court, on the one hand, does not examine the conformity of a law of Bosnia and Herzegovina with another such law even if the disputed law was imposed by the Hugh Representative instead of by the legislature,. Otherwise the BiH Constitution would be interpreted on the basis of the ordinary law, which is contrary to the clause of normative and hierarchic priority of the BiH Constitution referred to in Article III.3(b) of the BiH Constitution.⁵¹⁹ However, what is decisive is the procedural consequence, which even the national lawyers who practice constitutional law do not consider understandable, even though it clearly follows from the clause of the right of priority of the BiH Constitution referred to in Article VI.3(c) of the BiH Constitution: if a court, during regular proceedings, finds that there are serious doubts about the constitutionality of a certain regulation to be applied in the case at hand, it must not apply said regulation, but it must forward the issue of the conformity of a disputed norm with the BiH Constitution to the BiH Constitutional Court, in accordance with Article VI.3(c) of the BiH Constitution.⁵²⁰

A judgment based on a law which is in contravention with the BiH Constitution is itself in contravention of the Constitution.⁵²¹ The BiH Constitutional Court, thus, does not examine solely whether a certain right of an individual has been restricted on the basis of some law, but also whether some existing law has been correctly applied in a particular case.⁵²² Even a law which is the basis for some control (review) is subject to examination on the basis of the standards of the BiH Constitution, including the ECHR.⁵²³ In the meantime, i.e., during the proceedings following appeal, the BiH Constitutional Court carries out the proceedings of control (review) of norms under Article VI.3(c) of the BiH Constitution and adopts a decision (in the reasoning of a decision on appeal) that the norm which is of crucial importance for the dispute at hand is possibly contrary to the BiH Constitution.⁵²⁴ The same goes for the ECHR, which has “priority” over ordinary positive regulations: even if the conduct of the criminal investigative bodies has been formally covered by law, i.e., it has been in accordance with the law, but the very law has violated the rights guaranteed by the ECHR, a judgment based on such an investigation (which is contrary to the Convention) cannot hold out.⁵²⁵