Instruments for the protection of human rights referred to in Annex I to the BiH Constitution: international status versus constitutional status

Bosnia and Herzegovina has not become a member to all 15 of the instruments for the protection of human rights referred to in Annex I to the BiH Constitution.⁵³⁸ Therefore, some instruments have not been ratified as yet or have not been ratified to the full capacity possible. In addition, many of these instruments have been amended since 14 December 1995, when they became a substantive part of the BiH Constitution. Accordingly, for instance, on 14 December 1995, Bosnia and Herzegovina adopted the International Covenant on Civil and Political Rights, including the First and Second Optional Protocols from 1966 and 1989 respectively, as part of the BiH Constitution, whereas its Second Optional Protocol⁵³⁹ was ratified by the State only in 2000.⁵⁴⁰ The situation with the ECHR is similar – it was taken over on 14 December 1995 as part of the BiH Constitution, although Bosnia and Herzegovina, along with Additional Protocol No. 12 to the ECHR, did not ratify it until 2002. However, the Additional Protocol No. 12 to the ECHR only entered into force on 1 April 2005, while Additional Protocol No. 14 to the ECHR was ratified only on 19 May 2006 (and has not entered into force as of yet). Therefore, a question arises as to the scope to which these 15 instruments for the protection of human rights referred to in Annex I to the BiH Constitution have become part of the constitutional law of BiH. Besides, one may wonder whether the constitutional scope of protection of these instruments changes automatically as these instruments change or, most often, get amended at the international level. Thus, for instance, one may wonder whether the BiH Constitution, when it comes to the ECHR, has been automatically expanded, or not, on 1 November 1998 – on the day Additional Protocol No. 11 to the ECHR went into force.⁵⁴¹ Very clearly, these issues are the result of the dual legal nature – constitutional and international – of these 15 instruments for the protection of human rights referred to in Annex I to the BiH Constitution and the mutual effects on and interaction with the functioning of the legal system.⁵⁴²

What is clear and undeniable is that these 15 instruments for the protection of human rights referred to in Annex I to the BiH Constitution shall be applied irrespective of the formal membership of Bosnia and Herzegovina, to the extent stipulated by the very BiH Constitution. Accordingly, if the BiH Constitution stipulates that the Second Optional Protocol to the International Covenant on Civil and Political Rights from 1989 shall be applied, the fact that Bosnia and Herzegovina ratified this protocol only in 2000 in no way affects the constitutional scope of protection. Likewise, the European Convention on the Prevention of Torture, Inhuman or Degrading Treatment or Punishment (1987) became part of the BiH Constitution on 14 December 1995. Given the fact that Additional Protocols Nos. 1 and 2 to this convention have not been mentioned (which is logical, as they went into force only on 1 March 2002), they should not subsequently become part of the constitutional protection regardless of the fact that the state ratified them on 12 July 2002 (they entered into force on 1 November 2002). In this manner, one may reach a different scope of protection for certain instruments or their parts at the constitutional or lower level of the legal system of BiH, namely to different obligations of BiH at the constitutional and international level.

Still, certain problems may occur in taking a legal position if the constitutional phrasing of a certain constitutional provision is unclear in some way. That shall be the case with the ECHR, although it does not fall among these 15 instruments for the protection of human rights referred to in Annex I to the BiH Constitution. That is to say, Article II.2 of the BiH Constitution reads that “[r] ights and freedoms provided for in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the protocols thereto […] shall be directly applied in Bosnia and Herzegovina”.⁵⁴³ The constitution maker failed to state clearly which protocols were implied. What is clear is that all protocols which were in force on the day of entry into force of the BiH Constitution were implied (with Additional Protocol No. 8 to the ECHR being the last one). The example involving the European Convention on the Prevention of Torture, Inhumane or Degrading Treatment or Punishment (1987) is what leads one to make such a conclusion, as the constitution maker deliberately

omitted the two protocols to the ECHR in the BiH Constitution, obviously due to the fact that they were not in force. However, a question arises whether the substantive scope of constitutional protection automatically expands if a specific protocol enters into force on 14 December 1995, as was the case with Additional Protocols Nos. 11 and 12 to the ECHR. The answer to this question should be positive, at least when it comes to the ECHR. The reason for such an interpretation is precisely based on the fact that the constitution maker has used the notion “protocols”, without enumeration, as was the case with, for instance, the International Covenant on Civil and Political Rights. Obviously, the constitution maker had the intention of incorporating the ECHR into the BiH Constitution as “a living mechanism”, thereby separating it from the rest of the 15 mechanisms referred to in Annex I to the BiH Constitution. Therefore, if a certain protocol goes into force, the BiH Constitution should “expand” automatically. Nevertheless, the case-law of the BiH Constitutional Court in Case No. U 13/05 leads one to a relatively different conclusion, that is to say that it does not suffice that a protocol goes into force solely, but that Bosnia and Herzegovina formally commits to obligations through ratification (as was the case with Additional Protocols Nos. 11 and 12 to the ECHR). Actually, the main decision and separate opinions of judges Grewe, Feldman and Palavrić in Case No. U 13/05 do not question the possibility of the application of Additional Protocol No. 12 to the ECHR as part of the BiH Constitution for two reasons: on the one hand, BiH ratified this Additional Protocol, and, on the other hand, it went into force (on 1 April 2005) at the time of adoption of a specific decision in the proceedings before the BiH Constitutional Court.

Another specific problem is the issue of the constitutional protection of the rights and freedoms stated in the 15 instruments for the protection of human rights referred to in Annex I to the BiH Constitution, which, at the international level, depend, on the one hand, on ratification of a specific instrument and, on the other hand, on special procedures that must be carried out at the international level in order for those rights to be guaranteed at the national level. Precisely one such issue was the case of review of some of the most recent constitutional case-law (U 5/06).

In the Case No. U 5/06 the applicant Ivo Miro Jović, the Chairman of the Presidency of Bosnia and Herzegovina at the time the request was filed, claimed, among other things, that certain provisions of the Law on Public Broadcasting System of Bosnia and Herzegovina⁵⁴⁴ are in contravention of Article 3 paragraph 1 in conjunction with Article 11 paragraph 1 lines (a) – (i) of the European Charter for Regional or Minority Languages.⁵⁴⁵ He held that, although the Croats in BiH are not a national minority and the Croatian language is neither a regional nor a minority language but an official language, this does not release BiH from its obligation to set up a separate television channel in “a regional or minority language”, i.e., in an official language which is less used within a certain territory of BiH. The BiH Constitutional Court dismissed the request for procedural reasons since the applicant failed to ensure the 5 votes of judges necessary for the request to be granted.⁵⁴⁶ According to the opinion of the judges who dismissed the request, the right referred to in Article 3 paragraph 1 in conjunction with Article 11 paragraph 1 lines (a) – (i) of the European Charter for Regional or Minority Languages may be applied only if the mentioned international agreement was ratified, and the procedure for the protection of “a minority language”, in terms of guaranteeing benefits for the language as if it were a minority language, was officially completed (paragraph 53). According to the opinion of the judges who voted to grant the request, these rights may be guaranteed regardless of ratification or previously mentioned procedures (paragraph 61).

Due to the impossibility on the part of the BiH Constitutional Court procedure- wise to take a legally binding position, the case-law failed to offer a specific answer to the question asked. An argument supporting the position that these rights, still ought to be included in the substantive scope of protection of the BiH Constitution is the fact that ratification is irrelevant for the application of a specific instrument referred to in Annex I to the BiH Constitution. Thus, one could state that additional procedures at the international level are irrelevant for the guaranteeing of rights and freedoms if they are theoretically possible under the mentioned instrument. Besides, this interpretation would be in full compliance with the constitutional obligation of BiH to guarantee “the highest level of internationally recognised human rights and fundamental freedoms” (Article II.1 of the BiH Constitution). On the other hand, the position that these rights are not absolutely applicable is also acceptable, or that they are applicable up until such time that the State makes a reservation regarding their application, for, they depend not only on ratification, but on additional procedures at the international level which Bosnia and Herzegovina failed to initiate in the present case (U 5/06).