Human Rights Chamber

Relying on the case law of the Court in Strasbourg, the Human Rights Chamber restricted the intensity with which the national courts established and assessed the facts of a case. According to the position of the Human Rights Chamber for BiH, it is within the jurisdiction of national courts to assess presented evidence. The Chamber is not competent to give its assessment as a replacement for the assessment of facts by the national courts. Despite this, if a violation of Article 6, paragraph 1 of the ECHR is established, it is necessary that the Human Rights Chamber establishes whether the entire proceeding, including the manner in which the prosecution and defence collected evidence, has been fair and in accordance with the standards referred to in Article 6, paragraph 1 of the ECHR.⁵⁷⁹ Therefore the Human Rights Chamber, in contradictory and arbitrary decisions, will exceptionally establish a violation of the right to a fair trial.⁵⁸⁰ The Human Rights Chamber may review the facts of a case which had already been established by the ordinary courts only if it is claimed or manifest that the courts had assessed evidence erroneously and that such assessment lacked minimum fairness.⁵⁸¹ For instance, establishment of the facts of a case is deficient when the competent court dismissed a request of a party to the proceeding to hear a witness, although a concrete testimony of the witness has fundamental significance for the establishment of the facts of the case; whereby the concerned party to the proceeding bears the burden of proving the significance of the testimony of a witness.⁵⁸² Yet if the facts which the witness was to testify about had already been established by way of other evidence, the court might dismiss a request for a judicial hearing of a witness.⁵⁸³ Contrary to this, if lacking any grounds indicating the existence of a violation of the right to a fair trial, the application shall be dismissed as manifestly ill-founded, that is ratione materiae incompatible with Annex 6.⁵⁸⁴

This applies also to the interpretation of domestic law by the ordinary courts. Domestic courts enjoy a certain margin of appreciation regarding the interpretation of the ECHR, through the wording as follows “in accordance with a procedure prescribed by law” refers to national law.⁵⁸⁵ Precisely in the applications filed with the Human Rights Chamber, at the core of which lied a private legal dispute on whether a certain right existed or not, the Human Rights Chamber in principle took as a starting point the things established by the domestic court.⁵⁸⁶ If there is a possibility to interpret a certain provision in several ways in accordance with the ECHR, the competent body may, according to its own assessment, opt for one of the interpretations possible.⁵⁸⁷ Contrary to this, this does not rule out the possibility for the Human Rights Chamber to establish a violation in the event that the interpretation and application by the domestic courts were incompatible with the rights referred to in the ECHR.⁵⁸⁸ Thereby, while assessing whether a certain law was applied arbitrarily, the Human Rights Commission within the BiH Constitutional Court may apply the typical mechanisms of the ordinary judiciary, such as, for instance, the rules on the ratione temporis application of regulations.⁵⁸⁹ If and when it is established that the selected interpretation is in contravention of the EHCR, there is room to adopt an additional conclusion, i.e., that of several possible interpretations the one which is in contravention of the Convention was selected for being over-restrictive or extensive.⁵⁹⁰ The interpretation shall always be arbitrary if not covered by linguistic phrasing of the law,⁵⁹¹ or if covered by linguistic meaning but with the very phrasing being in contravention with the BiH

Constitution.⁵⁹² As part of the review of the lawfulness of restrictions on human rights and fundamental freedoms, for instance, the right to property or the right to private and family life, the Human Rights Chamber for BiH reviewed on a regular basis their conformity with the domestic law, such as, for instance, in cases where the lawfulness of the deprivation of freedom of a person was brought into question,⁵⁹³ or where the disputed issue was the issuing of a permit for the construction of a hydro-electric power plant in a protected area.⁵⁹⁴ When reviewing arbitrariness, the Human Rights Commission within the BiH Constitutional Court at times dealt profoundly with the interpretation and application of ordinary legal regulations.⁵⁹⁵