B. Maximum protection of fundamental human rights and freedoms (Article II.1 of the BiH Constitution)

1. Human Rights: Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms. To that end, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework Agreement.

Bosnia and Herzegovina and both Entities guarantee the highest level of the internationally recognised human rights and fundamental freedoms. The general clause of Article II.1, first sentence, of the BiH Constitution becomes concrete in the subsequent paragraphs of Article II of the BiH Constitution, but also in other places, in relation to the obligation to protect the implicated rights (paragraphs 2, 3, 4, 5 and 7, Articles I.4, I.7(b), III.2(c) of the BiH Constitution, Annex I to the BiH Constitution), in relation to such entities that have the responsibility to provide protection (paragraph 6, Articles I.4, III.2(c) of the BiH Constitution) and in relation to the holders of rights (paragraphs 3, 4 and 5 of Article II of the BiH Constitution). However, the general clause is not insignificant. Even if the obligation to provide legal protection at the highest level is too unspecified, the constitutional norm, nevertheless, contains a guideline in the sense that, if there is a dilemma, priority is given to the protection of an individual right or freedom. This applies especially in cases when, comparing the international or European system of protection, it is proven that there is an appropriate level of protection. Indeed, concerning the ECHR and the European Court case law, this arises directly from Article II.2 of the BiH Constitution. However, comparison with other legal systems and the case law of the then constitutional courts and courts of human rights may, in certain cases, be a role model and, according to the general clause of Article II.1, first sentence, of the BiH Constitution, it may be a binding action. Accordingly, the scope of protection of an individual right provided by the European Court, in certain cases, may be smaller than the scope of protection provided by the established national constitutional courts. In that case, the standard for the legal protection in Bosnia and Herzegovina would be the one that was recognised in the consolidated case law of other constitutional courts.

Accordingly, the BiH Constitutional Court referred to the general clause in Article II.1, first sentence, of the BiH Constitution in order to ensure the respect for constitutional human rights and freedoms against the acts of international factors, which, in accordance with international law, discharge certain tasks in Bosnia and Herzegovina.⁵⁹⁶ The State is obliged to protect all persons in its territory from SFOR actions that are in contravention of the ECHR (in the present case it concerned the deprivation of freedom) although SFOR enjoys immunity.⁵⁹⁷

It appears that precisely Article II.1 of the BiH Constitution, through its contextual linking of the obligation to protect human rights and freedoms and by founding the Human Rights Commission under Annex 6, gives instructions for action that the Human Rights Chamber oftentimes referred to in its practice, particularly in relation to the discussion about the so-called merger with the BiH Constitutional Court. One could easily deduce from this regulation the integration of the Human Rights Commission (the Human Rights Chamber and the Ombudsmen) into the constitutional framework, which could, then, be presumed also for the Commission for Real Property Claims of Displaced Persons and Refugees under Annex 7 in conjunction with Article II.5 of the BiH Constitution. The constitutional case law of the Constitutional Court regarding its relation with the Human Rights Chamber would then, certainly, have to look differently. The previous division of work – whereby the Human Rights Commission would tackle issues related to human rights and fundamental freedoms and the Constitutional Court the remainder of the constitutional issues, or the Human Rights Commission would tackle individual cases and the BiH Constitutional Court would tackle the rest of the proceedings – would result in the continued existence of the Human Rights Chamber.

Nevertheless, despite the assigning of duties and tasks under Article II.1 of the BiH Constitution and despite the non-existence of a separate and explicit competence of the BiH Constitutional Court over individual cases under Article VI.3 of the BiH Constitution, the case law has developed in the completely opposite direction. In support of such case law, Article VI.3(b) of the BiH Constitution in conjunction with Article II of the BiH Constitution provides a rather solid basis, especially if taking into account trends in the constitutional case law of Western Europe and the countries in transition of Central and Eastern Europe. If, under Article II.1 of the BiH Constitution, Bosnia and Herzegovina is obliged to protect internationally recognised human rights and freedoms at the highest level, if such rights, under Article II and Annex I to the BiH Constitution, have been incorporated into the BiH Constitution and if the BiH Constitutional Court, under Article VI.3 of the BiH Constitution, has been appointed as a guardian of the Constitution, it is completely clear that the BiH Constitutional Court is called upon to protect the mentioned rights within the scope of its jurisdiction under Article VI.3 of the BiH Constitution, which, in accordance with item (b), includes the adoption of decisions on constitutional issues arising from the opinion of any court in Bosnia and Herzegovina.