Comparing standards of review

As part of the discussion on the merger of the Human Rights Chamber and the BiH Constitutional Court, followed by the transfer of competences of the Human Rights Chamber to the BiH Constitutional Court and, finally, about the

implementation of Annex 6, it was reasserted continuously that the standards of control (review) of the BiH Constitutional Court lagged behind the standards of control (review) of the Human Rights Chamber; therefore, one of the consequences of the dissolution of the Human Rights Chamber would be the reduction in the level of protection of human rights and freedoms. In a legal opinion on the merger,⁵⁶⁰ the Human Rights Chamber expressed the position that the very Human Rights Commission of Bosnia and Herzegovina under Annex 6 ensures the highest level of internationally recognised protection of human rights and freedoms in accordance with Article II.1 of the BiH Constitution. It was emphasised thereby that the Human Rights Chamber – unlike the BiH Constitutional Court – might give its opinions about manifest cases of discrimination within the scope of the implementation of the rights referred to in the Appendix to Annex 6, as well as about the cases where discrimination is claimed to exist.

Yet, based on this comparison of standards of control (review), one may observe that these remarks are not completely justified. Both courts apply the ECHR and the additional protocols thereto to the same extent. With regards to the prohibition of discrimination, both courts can review the mentioned instruments referred to in this annex, that is the Appendix. Neither the BiH Constitutional Court (according to the opinion espoused by the authors of this text), nor the Human Rights Chamber protect the human rights and freedoms in a restrictive manner, i.e., only in the case of allegations of discrimination. Otherwise, the BiH Constitutional Court, as an institution of Bosnia and Herzegovina, is equally obliged to protect human rights and freedoms (Article II.1 of the BiH Constitution) at the highest internationally recognised level, to which the BiH Constitutional Court drew attention in its regular jurisprudence.⁵⁶¹ The fact that the Human Rights Commission was founded “for that purpose” does not release the BiH Constitutional Court from this obligation. This applies even more so from the moment when the state assumed responsibility for the application of Annex 6, whereby the objectives and tasks of Annex 6 were transferred to the state institutions. Yet the substantive constitutional law, of which the BiH Constitutional Court must be mindful, as “the guardian” thereof, does not comprise solely the ECHR and additional protocols thereto, or the instruments of Annex I to the BiH Constitution. In addition, the Court must be mindful of the constitutional rights and principles: Article II.5 of the BiH Constitution in connection with Annex 7 provides for the right to return (which has been dealt with separately), which the BiH Constitutional Court has used several times in its jurisprudence. The BiH Constitution finally instituted constitutional principles such as pluralism, democracy, the legal state, a market economy, the freedom of movement of persons, goods, services and capital; these are the principles which bestow upon the BiH Constitutional Court additional standards of control and which – in such a direct and comprehensive manner – were not at the disposal of the Human Rights Chamber.