Instruments for the protection of human rights referred to in Annex I to the BiH Constitution: full protection or solely in connection with the prohibition of discrimination

At the outset it was uncertain whether the instruments referred to in Annex I to the BiH Constitution would be applied, given the ambiguous phrasing solely in relation to the prohibition of discrimination under Article II.4 of the BiH Constitution. Not even from the previous decisions of the BiH Constitutional Court, where it referred to the agreements listed in Annex I, was it possible to see clearly whether the mentioned rights applied in general, without restrictions, or only in cases where such rights should be enjoyed by all persons, without discrimination (i.e., only in relation to the prohibition of discrimination). Namely, cases in which the BiH Constitutional Court examined a violation of some right referred to in the agreement listed in Annex I had always contained elements of discrimination.⁵⁴⁷

It was precisely the Human Rights Chamber that was the first to take a clear stance regarding the mentioned issue. In its opinion, Article II.4 of the BiH Constitution contains, on the one hand, the obligation that all persons (in general) be provided with the rights and freedoms referred to in Annex I, and, on the other hand, that such rights be guaranteed without discrimination.⁵⁴⁸ In this interpretation of Article II.4 of the BiH Constitution the Human Rights Chamber relied on Article I of Annex 6, which is to ensure the mentioned rights irrespective of possible discrimination. To this, one should add that the very Article II.1 of the BiH Constitution, which guarantees the highest level of protection of the internationally recognised human rights and freedoms, also refers to Annex 6 to the GFAP.

If instruments of Annex I clearly, unambiguously and absolutely forbid a certain action, the Human Rights Chamber for BiH considers that the guaranteed right of an individual, in contrast to the prohibition, may only be protected if such prohibition has direct effect; laws violating such a prohibition are, therefore, unconstitutional.⁵⁴⁹ Besides, if the mentioned rights of an individual clearly arise from the instruments of Annex I, they are the rights which are at the same level as those in the BiH Constitution. The Chamber examines even the instruments from the Appendix to Annex 6 solely in connection with the prohibition of discrimination – not because of the fact that these instruments, under Annex 6, are valid for a limited period of time only, in connection with the prohibition of discrimination; in this respect Annex 6 is even more clear than Article II.1 and 4 of the BiH Constitution. Instruments from the Appendix to Annex 6 are also included in the standards of human rights and freedoms to be protected by Article I.1 of Annex 6, in general, i.e., without relating solely to the prohibition of discrimination. Therefore, it does not concern the substantive and legal restriction of the scope of protection, but restriction of the jurisdiction of control of the Human Rights Chamber in accordance with Article II.2(2) of Annex 6.

Therefore, the Human Rights Chamber rejected on the regular basis of appeals as ratione materiae incompatible with Annex 6 if an appellant requested that a review be carried out concerning a violation of some of the rights listed in the Appendix to Annex 6 (such as the right to labour, to fair compensation, to appropriate housing space etc.), thereby not claiming, nor was it obvious, that there was discrimination in enjoyment of the mentioned rights.⁵⁵⁰

In order to be able to make use of the standards of the instruments from the Appendix to Annex 6, however, in one case the Human Rights Chamber detoured via Article II.4 of the BiH Constitution in connection with identical instruments enumerated in Annex I to the BiH Constitution. The starting point is to review the lawfulness of an interference with rights and freedoms, which happens often and should be reviewed in cases; namely, the restriction of human rights and freedoms must have a legal basis, which itself must be constitutional. The standards of the BiH Constitution, however, also include agreements from Annex I to the BiH Constitution.⁵⁵¹

Considering this “bridge” toward Annex 4, which was built by the Human Rights Chamber in relation to its respective jurisdiction, a question arises as to whether the Human Rights Chamber could have or even has had to apply the mentioned rights via Article II.4 of the BiH Constitution in all cases where the applicant claimed his/her rights referred to in the agreement in the Appendix to Annex 6 to have been violated without claiming, at the same time, to have been discriminated against. In doing so, the following distinction should be made. When it comes to the clearly defined rights, which ought to protect an individual from the state and state measures (as is the case of prohibiting the death penalty), appropriate rights should be directly taken as a standard for examining the lawfulness of interference with the mentioned rights. When it comes to the provisions on human rights and freedoms, which are per se absolute in nature, any linking or conditioning with the prohibition of discrimination makes very little sense. Otherwise, one would reach an absurd conclusion. Take, for instance, Article 2 of the Optional Protocol No. 2 to the International Covenant on Civil and Political Rights,⁵⁵² which, in principle, prohibits the imposition of the death penalty in a time of peace. If one accepts the interpretation that the International Covenant on Civil and Political Rights protects only with respect to the prohibition of discrimination, it would not be possible to find a violation of this absolute right if the state imposed the death penalty against all persons sentenced to death, without discrimination. A violation of this right might be established, however, if the death penalty were imposed on individuals in a selective and discriminatory manner. Such a conclusion is quite absurd.

However, when it comes to the right of citizens to participate in something, such as the right to be allocated an apartment, employment, social benefits etc., the situation is different. In such cases, the absolute right to request from the state a certain action exists only in a limited manner.⁵⁵³ Therefore, a violation of these rights shall be presumed only if the state acts in a discriminatory manner. However, discrimination shall not exist if social rights are guaranteed at a minimum level required by the relevant agreements, and no one is allowed separate or special rights. Perhaps the authors of Annex 6 had in mind this problem area when specifying the jurisdictions of the Human Rights Chamber in relation to the agreements referred to in the Appendix. The fact that the earlier drafts had included in these agreements a great many soft-law-instruments (legally non-binding agreements) supports the aforesaid. Bosnia and Herzegovina was not expected to apply them obligatorily in the State bodies, thus it was decided to use them only as targets/objectives which are obligatory under international law, as is, nevertheless, usual.⁵⁵⁴ If certain provisions of the instruments in the Appendix provide protection from discrimination, it is superfluous to establish discrimination in exercising some right to non-discrimination.⁵⁵⁵

In a decision adopted subsequently, the Human Rights Chamber once again referred to the instruments listed in Annex I to the BiH Constitution, thereby not wanting to take them as the basis for its decision. The Chamber held that the positive obligation to search for missing persons and to submit possible information to their relatives after the end of the armed conflict does not arise solely from the right to respect for family life⁵⁵⁶ but also from Article 32 in conjunction with Article 33, paragraph 1 of Additional Protocol No. 1 to the Geneva Convention. Namely, they are amongst the instruments enumerated in Annex I to the BiH Constitution and they can be applied in Bosnia and Herzegovina.⁵⁵⁷ Contrary to this, in its more recent jurisprudence the BiH Constitutional Court and the Human Rights Commission within the BiH Constitutional Court took a position that the instruments referred to in Annex I to the BiH Constitution should not apply independently, but only in connection with discriminatory treatment.⁵⁵⁸

In literature, when it comes to this issue, if any views are presented at all, the view mainly espoused is that the instruments referred to in Annex I to the BiH Constitution are not directly applicable. However, pursuant to Article II.6 of the BiH Constitution, Bosnia and Herzegovina and the Entities are obliged to guarantee the mentioned rights to legislative, judicial and administrative measures.⁵⁵⁹ Accordingly, Bosnia and Herzegovina and all courts, institutions, authorities, and bodies indirectly governed by the Entities or which operate within the Entities, must apply the human rights and freedoms referred to in Article II.2 of the BiH Constitution, and they must direct their activity in an appropriate manner so that the instruments referred to in Annex I to the BiH Constitution obtain a status different from the status of the ECHR. This argumentum a contrario is not so strange after all. Yet, this regulation appears inaccurate particularly if viewed in connection with other constitutional provisions which prescribe the obligation of any body of the State authority to respect the rights provided for in Article II of the BiH Constitution. Under Article II.1 of the BiH Constitution, the parties commit themselves to ensuring the highest level

of the internationally recognised human rights and freedoms. In accordance with Article III.2(c) of the BiH Constitution, the Entities must provide for all the persons in their respective territory a safe and secure environment, by ensuring, in accordance with the internationally recognised standards and by observing the internationally recognised human rights and freedoms, under Article II of the BiH Constitution, that civilian authorities implement laws and also enact other appropriate measures. Namely, under Article III.3(b), first sentence, of the BiH Constitution, “The Entities and any subdivisions thereof shall comply fully with this Constitution”, which implies the entirety of Article II, and not only paragraph 2. Besides, it would be incomprehensible if the State authority, due to Article II.6, had to comply to a lesser extent with the prohibition of discrimination, which is regulated in principle in Article II.4 of the BiH Constitution, and in particular in connection with the specific right to return referred to in Article II.5 of the BiH Constitution regarding Annex 7 to the GFAP, than with the prohibition of discrimination referred to in the ECHR. Considering this, argumentum a contrario referred to in Article II.6 of the BiH Constitution, that instruments from Annex I to the BiH Constitution have a lower status (i.e., that they are not directly applicable), is not convincing.

Another argument supports the fact that the agreements referred to in Annex I to the BiH Constitution may be directly applied and that such application does not depend on the prohibition of discrimination. Article II.4 of the BiH Constitution is not solely related to the agreements referred to in Annex I but also to the entire Article II of the BiH Constitution, including the ECHR. It is not possible to argue about the fact that the rights referred to in the ECHR, under Article II.2 of the BiH Constitution, and the rights specifically referred to in Article II.3 of the BiH Constitution and, particularly, the right to return referred to in Article II.5 of the BiH Constitution, apply without assertion to the existence of discrimination. Therefore, in argumentum a contrario it is not possible to understand why only the instruments in Annex I to the BiH Constitution ought to apply exclusively in relation to discriminating treatment.