“Implementation of Annex” 6 to the GFAP

Eight years after Dayton we may ascertain the fact that the components of the Commission on Human Rights experienced different destinies and that intense discussions have been held for several years in this regard. The institution of the Ombudsmen, as early as 2001, was transferred to the jurisdiction of Bosnia and Herzegovina as required by the Law on the Human Rights Ombudsman for Bosnia and Herzegovina,⁴³⁷ and became a unique institution. This institution comprises three persons performing duties of ombudsmen and, during a transitional period, the international ombudsman was appointed to a term of office of only three years.⁴³⁸

Contrary to the above, pursuant to Article XIV of Annex 6, after the term of office of the international judges had been re-extended to an additional three years by the agreement of the contracting parties under Annex 6,⁴³⁹ the Human Rights Chamber was transformed into the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina. Despite the name, the Commission was independent and it was not a part of the Constitutional Court, neither in institutional nor organisational terms. It was comprised of 5 former judges of the Human Rights Chamber and there were two international judges among them until the end of 2004. The Commission primarily dealt with the pending applications the Human Rights Chamber did not manage to resolve. The applications arriving after 1 January 2003 were dealt with solely by the Constitutional Court.

The agreement on the gradual closing of the Human Rights Chamber is associated with numerous issues, which are impossible to be elaborated in detail in this book.⁴⁴⁰ It is almost beyond any doubt that the Human Rights Chamber was conceived as a permanent institution.⁴⁴¹ However, it seems quite possible that the contracting parties subsequently changed their conception of Annex 6. As counter-arguments, there are the allegations that the amendments to the Agreement on Human Rights required the consent of the Parties to the General Framework Agreement for Peace – GFAP (Croatia and former Serbia and Montenegro). However, such a conclusion cannot be drawn from the GFAP, neither does it make any sense to associate the amendment to this agreement, which only has effect on the interior structure of state, with the consent of third parties. On the other hand, there are arguments that amending Annex 6 would be possible only if simultaneous amendments to the Constitution take place, since in Article II.1 of the Constitution reference has been made to Annex 6. In technical terms, such a position is unsustainable: to be precise, Annex 6, in formal terms, is an independent international agreement, whose amendment, under strict terms, is subject to Article 56 of the Vienna Convention on the Law of Treaties.⁴⁴² However, even from the systematic point of view, such a demand seems to be exaggerated. In that case all the annexes to which the BiH Constitution refers should be viewed as constitutional law, not only in substantive terms (which might be considered justified) but also in formal terms. This view is supported by the fact that the said Annexes (for instance Annexes 3, 6 and 7), unlike the previous pre-Dayton proposals of the Constitution (which included the direct annexes to the Constitution), were separated from the BiH Constitution and placed next to it. In other words, they were placed in parallel with the Constitution and other Annexes to the GFAP. Still, regardless of whether the chosen arrangement for closing the Human Rights Chamber was consistent with the Constitution and international law or not, a critical view of such an arrangement is understandable and justified.⁴⁴³ And even more so, there were some more convenient and more transparent arrangements, but due to the zealous struggle and because of alleged financial difficulties those arrangements have never been addressed in a serious and competent manner.

The mandate of the Human Rights Commission within the Constitutional Court of BiH was originally supposed to last until 31 December 2004 and the goal was to finalise all cases registered by the Human Rights Chamber which could not be finalised by 31 December 2003. Despite cooperation with the Constitutional Court and despite the technical and personnel support of the Constitutional Court, that goal was set too ambitiously. By the end of 2004, the Human Rights Commission within the Constitutional Court of BiH adopted 3,230 decisions out of 8,926 existing applications.⁴⁴⁴ Afterwards, in 2005, by the new Agreement pursuant to Article XIV of Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina,⁴⁴⁵ its mandate was extended for an indefinite period of time for the purpose of finalising the 5,696 pending proceedings. The “New” Commission comprised of three domestic members, the former judges of the Human Rights Commission and two national judges of the Constitutional Court. The First Panel, which comprised of the former judges of the Human Rights Commission, was to decide on the admissibility of cases. The Panel Commission, in which two national judges of the Constitutional Court were being rotated every second month, was deciding on the merits of the cases.

Between 1 January 2005 and 31 December 2006 an additional 5,101 cases were finalised.⁴⁴⁶ The remaining 595 cases were transferred to the jurisdiction of the Constitutional Court by an additional Agreement pursuant to Article XIV of Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. The applications submitted to the Human Rights Commission within the Constitutional Court of BiH continued to be dealt with pursuant to Annex 6, but it should be noted that the division into panels was carried out as it was the case with the second Human Rights Commission within the Constitutional Court of BiH, but this time it was operating according to new procedural rules.⁴⁴⁷ By the end of the first half of 2007, the Constitutional Court managed to resolve all pending cases of the Human Rights Commission. Thus, in mid 2007, Annex 6 was finally implemented and the Human Rights Chamber ceased to exist; in other words, it was incorporated into the Constitutional Court of BiH.