The Constitutional Court of BiH

Since the BiH Constitutional Court, given the linguistic phrasing referred to in Article VI.3(b) of the BiH Constitution, originally considered itself to be competent only to review court judgments. Therefore, the differential treatment of constitutional appeals lodged against court judgments (as a special form of an act of public authority), as opposed to appeals lodged against other forms of acts of public authority, in the beginning did not play the important role that a German jurist would be familiar with, based on the case law of the Federal Constitutional Court of the FR Germany, which applies a different standard of control (review) to these two types of appeals. With respect to the scope of control (review), the jurisprudence was, therefore, certainly related only to the control (review) of court judgments. Consequently the BiH Constitutional Court, in the appeals where the parties complained about a violation of procedural or substantive law under regular positive regulations (without complaining, at the same time, about a violation of some of the constitutional human rights and freedoms), only briefly stated that it does not review the correctness of the application of ordinary positive regulations or facts of the case that had been established by the ordinary lower instance courts.⁵⁶² The BiH Constitutional Court reviewed the facts of the case established by the lower courts only if the proceedings conducted by the lower court were unfair; the burden of proving procedural errors, therefore, was on the appellant.⁵⁶³ The decision in Case No. U 15/99, indeed, reads that the Constitutional Court is not called upon to review an appeal on the basis of the obligation law or other norms of private law, but to establish whether the challenged judgments violate the appellant’s human rights and freedoms. As part of the review, the BiH Constitutional Court ordered that an oral hearing be held, and it established the facts on its own and assessed them in a manner different from that of the lower instance ordinary courts.⁵⁶⁴ In other proceedings on the appeals lodged, the BiH Constitutional Court only quoted the appropriate norms of the ordinary law and then briefly established that the application of such norms by the lower instance courts did not constitute a violation of the mentioned constitutional human rights and freedoms;⁵⁶⁵ at times it would explicitly uphold the decision adopted by the lower instance courts.⁵⁶⁶

Subsequently the scope of control has been further specified. This happened first, naturally, regarding the merits of appeals, which is similar to the jurisprudence of the European Court,⁵⁶⁷ and particularly to the jurisprudence of the German Federal Constitutional Court.⁵⁶⁸ The decision in Case No. U 27/01, indeed, reads that the BiH Constitutional Court is not called upon to review whether appropriate legal regulations were correctly interpreted and applied; this is within the jurisdiction of the ordinary courts and authorities of the Entities. With respect to Article 1 of Additional Protocol No. 1 to the ECHR, it sufficed that a tax obligation had a legal basis and that the application thereof did not burden an individual excessively or inappropriately, for which no grounds existed in the present case.⁵⁶⁹ In another decision the BiH Constitutional Court noted that it was not called upon to establish whether the lower instance courts had correctly applied the Law on Housing Relations, but only whether the appellant’s constitutional rights were violated.⁵⁷⁰ While interpreting Article VI.3(b) of the BiH Constitution, the Court subsequently alleged that the notion of a “constitutional issue” implies a restriction of the jurisdiction of the BiH Constitutional Court to only those proceedings on appeal which raise relevant issues under the BiH Constitution. The BiH Constitutional Court is not called upon to review the procedure of the establishment of facts of a case, or the interpretation and application of the ordinary law by the lower instance courts unless the decisions of the lower instance courts violate constitutional rights. Constitutional rights are violated in the event when a decision of an ordinary court has disregarded or erroneously applied the constitutional rights of an individual, when they have applied the law manifestly arbitrarily, when the applied law is in itself unconstitutional, or when a violation of the fundamental principles of a fair proceeding has occurred (fair trial, access to court, effective legal remedies, etc).⁵⁷¹

In the decision in Case No. U 7/00, the Constitutional Court, for instance, considered that the lower instance court exceeded its margin of appreciation. Namely, the Supreme Court of the RS should not have considered itself to have been bound by the established facts of the case in the administrative proceeding. Taking into account the appropriate regulations of the Law on Administrative Procedure and Dispute, the court should have established the facts on its own. Therefore, the appellant was denied the right of access to court. Next, the BiH Constitutional Court itself conducted the procedure of assessment of evidence and established that the facts of the case were different from that which had served as a basis for the adoption of the challenged decision.⁵⁷² Also in Case No. U 8/99, the BiH Constitutional Court established that the lower instance courts applied the ordinary law in contravention of the Constitution. The courts should have directly applied the constitutional human rights to property, possession of apartment and access to court, and thus, should have secured ownership to the appellant over her old apartment. With respect to this, one may consider that the decision adopted in Case No. U 15/99 goes in the same direction. In the said decision the BiH Constitutional Court eventually concluded that the lower instance courts, in applying the relevant provisions of the obligation law, did not recognise the significance of the right to return (Article II.5 of the BiH Constitution in conjunction with Article XII.3 of Annex 7 to the GFAP), the right to property and the right to free use of apartment. Therefore the Court adopted a decision that the contract on exchange of real property, contrary to the position of the lower instance courts, was null and void.⁵⁷³

However, in more recent decisions⁵⁷⁴ the BiH Constitutional Court has entirely left the assessment of whether the appellant is entitled to some human rights and freedoms (in the present case, to property, in the form of entitlement to payment of the earned salary) to the lower instance courts. While doing so, it does not examine at all whether the courts have arbitrarily established facts and applied appropriate regulations, although the appellant complained precisely about the arbitrary application of the substantive law and erroneously established facts. Thus, for instance, in Case No. AP 75/05 the appellant claimed that he had an occupancy right over an apartment in the RS. However, the BiH Constitutional Court laconically argued that the appellant “failed to prove in the conducted court proceeding before the ordinary courts that he had acquired the occupancy right over the apartment at issue in accordance with the existing legal regulations, i.e., that he had legally acquired the property, and therefore he may not refer to a violation of the right to property he had not acquired […]”.⁵⁷⁵ Through such practice the BiH Constitutional Court gives up its competences to carry out the control (review) and responsibility thereof.

The risky self-restriction of the BiH Constitutional Court in relation to the issues arising from constitutional law as opposed to the issues arising from the ordinary law may be observed clearly in the Decision No. U 51/01. In that case, the State Prosecutor’s Office, in addition to a violation of international criminal law, also complained that the Supreme Court of the FBiH abused human rights, and that it did not comply with the ordinary procedural law.⁵⁷⁶ The BiH Constitutional Court established that the State Prosecutor’s Office may not have referred to Article 6 of the ECHR, which was, as a matter of fact, correct, yet it failed to point out a real problem. The BiH Constitutional Court added that the issue of whether the provisions of the law on territorial jurisdiction of the courts was correctly applied or not was not a constitutional issue falling under the jurisdiction of the BiH Constitutional Court.⁵⁷⁷ One may object to this argument. It is correct that the lower instance courts, mainly, have a certain freedom of interpretation in applying the ordinary regular law. The BiH Constitutional Court reviews judgments of the lower instance courts only within the stipulated scope (in particular the control of arbitrariness). A violation of the regulations under the ordinary regular law on territorial jurisdiction, certainly, may constitute a constitutional issue, as within the scope of the jurisdiction of courts the constitutional procedural rights (primarily, the right to a fair proceeding) are exercised precisely through the ordinary regular law. Accordingly, the right to a judge is also determined by law. If a court violates the mentioned law, it automatically constitutes a violation of the right to “a lawful judge”.^.578 Of course, if a law can be interpreted both ways, it is difficult to prove the arbitrariness of a decision.