The BiH Constitution and the ECHR

While the BiH Constitutional Court, on the basis of its foundation and position in the BiH Constitution, may refer to and take as a standard of control (standard of review) the BiH Constitution; the ECHR, which is referred to by the BiH

Constitution (Article II.2 of the BiH Constitution); the international mechanisms for the protection of human rights and freedoms enumerated in Annex I to the BiH Constitution, referred to by Article II.4 of the BiH Constitution; and the Human Rights Chamber, by the nature of things, initially referred to Annex 6 to the GFAP. Naturally, since the review of constitutionality, meanwhile, became part of the review of lawfulness of the interference of the state with the human rights and freedoms (“provided for by law”), the Human Rights Chamber could have theoretically taken the BiH Constitution as a relevant standard for control (review). The Chamber had used this possibility at least once in a case where it was necessary to refer to the constitutionality, and not to the rights and freedoms guaranteed by Annex 6.⁵²⁶ When reviewing the justification of applications, the Human Rights Commission within the BiH Constitutional Court had a custom to refer to the legal opinion of the BiH Constitutional Court in relation to the constitutionality of relevant regulations that were to be applied in a particular case.⁵²⁷ Also, in the event of an assertion that the right referred to in Annex 6 was violated due to the application of an unconstitutional state act, the Human Rights Commission within the BiH Constitutional Court used to examine the constitutionality of “the lawfulness of [the] restriction of human rights and freedoms by the state”; namely, whether “the interference” with human rights and freedoms would fulfil the criterion of lawfulness if the very law was constitutional.⁵²⁸

The principal standard of control (review) in the procedures of protection of human rights and freedoms for both courts is the ECHR with additional protocols thereto. It makes up the core of the catalogue of human rights and freedoms in the BiH Constitution and Annex 6. The disputed issue is whether the ECHR, given the phrasing of Article II of the BiH Constitution, also has priority over the BiH Constitution. The phrasing of this constitutional provision could be interpreted in this respect, as the provision relates that the rights and freedoms referred to in the ECHR and additional protocols thereto shall be directly applied and shall have “priority over all other law”. The English term “law” (unlike “laws”) can indeed be understood as the entire legal system (in Bosnia and Herzegovina “pravo”). Yet if the ECHR has priority over all other “law”, that would also include the very BiH Constitution. This interpretation was partly espoused in the relevant expert opinions.⁵²⁹ It has grounds in the constitutional theory and practice of other states which have incorporated the principle of normative constitutional hierarchy. In Austria, for instance, the constitutional principles have greater significance than “simple constitutional provisions”.⁵³⁰ This interpretation, however, could be challenged by stating that the Constitution maker in Article III.3(b), first sentence, of the BiH Constitution makes a distinction between constitutional law (“constitutions”) and the ordinary law (“law”) of BiH and that of the Entities. Namely, it reads as follows: “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 […].”⁵³¹ When comparing these constitutional provisions it follows that the Constitution maker, by using two notions “constitution/law”, makes a distinction between the constitutional law and the ordinary law.

In Case No. U 5/04, the BiH Constitutional Court took a position in relation to the mentioned disputed issue, and refused to give priority to the rights and freedoms referred to in the ECHR over the BiH Constitution. The BiH Constitutional Court held, on the one hand, that it was not competent to examine the conformity of certain provisions of the BiH Constitution with the standards provided for by the ECHR.⁵³² On the other hand, the legal opinion of the BiH Constitutional Court became clear on the basis of the translation of the English version of the relevant constitutional provisions: the rights referred to in the ECHR have priority “over all other laws”, and not over all other “law”. This manner of interpreting (or translating) corresponds to the unofficial version of the text of the BiH Constitution in the local language, which can be found on the website of the BiH Constitutional Court (“These acts have priority over all other laws”).⁵³³ Here the notion “law” has the same meaning as the German word “Gesetz”, which ought not to be confused with the notion “Recht” (“right”). This translation can be found also in other decisions of the BiH Constitutional Court.⁵³⁴