Common elements

Article 3 of Additional Protocol No. 4 to the ECHR prohibits any expulsion of nationals and Article 4 of Additional Protocol No. 4 to the ECHR and Article 1 of Additional Protocol No. 7 to the ECHR have linked individual and collective expulsion of aliens with certain procedural safeguards. In this regard, selection of the terms “expel” and “expulsion”, which are used in these provisions, should not be interpreted as a formal limitation of their application only to “expulsion cases” within the meaning of domestic legal provisions and domestic legal terminology. The protection afforded by the two provisions applies also to cases in which a person is deported, removed from the territory in pursuance of a refusal of entry order or handed over to the officials of a foreign power.²⁰⁴⁵ As far as the application of these provisions is concerned, the decisive issue is whether the person concerned has citizenship or not.

The new State and Entity laws on citizenship of BiH indicate that there are certain differences, although the regulation of citizenship falls within the competence of the State of BiH, and therefore Entity regulations must be harmonised with State law. The substantial contradictions between the Law on Citizenship of BiH²⁰⁴⁶ and the Law on Citizenship of FBiH,²⁰⁴⁷ which are still unresolved, have also appeared in the Chamber’s case Boudellaa et al. To be more precise, the Human Rights Chamber noticed that in this case the issue of the legal significance of a decision on revocation of citizenship was regulated differently.²⁰⁴⁸ The Chamber did not uphold the supremacy of either law but took the position that the mentioned contradiction has caused legal uncertainty which the injured party must not be burdened with. The Chamber considered that a more favourable provision should be applied, i.e., the one which postpones the effects of the decision on revocation of citizenship for a longer period of time.²⁰⁴⁹

If domestic law provides that a decision on revocation of citizenship shall enter into force on the day when the procedural decision on revocation of citizenship is delivered, then the State must prove that the procedural decision has been indeed delivered. Accordingly, if the revocation of citizenship is a decisive moment for expulsion in wider terms, then the competent institutions must prove when and through whom the procedural decision was delivered. If such proof cannot be offered, the injured party must be treated as a person who has not lost his/her citizenship.²⁰⁵⁰ Taking into account close links between the citizenships which are granted by the competent bodies at the State level and at the Entity level (Article I.7(a) of the BiH Constitution), the legislature envisaged in Article 31, paragraph 3 of the Law on Citizenship of BiH that if citizenship is revoked by a competent Entity body the decision enters into force only upon the explicit consent of the Minister for Civil Affairs and Communications’ of BiH or, if a minister presents no opinion in that regard, the decision enters into force after the expiry of two months.²⁰⁵¹ The citizenship of an injured party will not be considered revoked unless the Minister confirms the decision or unless the time limit of two months expires.²⁰⁵²

The pressure of other states interested in the expulsion of certain persons cannot justify violation of domestic law and obligations arising from Annex 6 to the Dayton Peace Agreement. In the Durmo case it is stated as follows: “Since pressure by the authorities of the United States of America and the Arabic Republic of Egypt to speed up the proceedings and to act according to their command cannot exempt the Federation from its obligations under domestic law and the Agreement […]”, wherein the Human Rights Chamber has made a critical observation of the manner in which the authorities of Bosnia and Herzegovina acted in respect of the “fight against terror” which, at that time, was carried out “in some other place”.²⁰⁵³