Legal protection from individual decisions of the High Representative

At the beginning of its work, the Constitutional Court of BiH, similarly to the Human Rights Chamber, acted in a defensive manner in respect of individual appeals lodged against individual acts of the High Representative. At the end of 2004, the Constitutional Court of BiH took a number of decisions by which it reached a turning point in its case-law where it related to the mentioned issue.¹⁷²⁴ The appeals lodged against individual acts of the High Representatives were no more rejected for the reason that those were not “court judgments”, as it was previously done, but were rejected solely on formal grounds – for being premature, given that the appellants had failed to challenge before the competent courts the cases related to removal from a position and the prohibition on carrying on certain activities.¹⁷²⁵ The challenged individual acts as well as other similar acts of the High Representative, especially when it concerns the consequences of those acts for the injured parties, raised very serious issues in relation to the BiH Constitution and the ECHR. As to the individual acts of the High Representative, inter alia, there was no possibility to challenge those acts by way of any effective remedy and this, by implication, raised an issue with regard to the guarantees under Article 13 of the ECHR.¹⁷²⁶ Besides, the challenged acts contained no instruction on remedy. On the other hand, given the direct application of the ECHR, all State authorities in BiH were obliged to examine all acts in contravention of the Convention and to guarantee the protection against possible violations of the rights and freedoms safeguarded by the ECHR.¹⁷²⁷

It was only a matter of time before an injured party would exhaust or attempt to exhaust all available legal remedies in order to address the BiH Constitutional Court with an appeal against a decree of the High Representative and by complaining of the (expected) lack of legal protection in the country. Indeed, that moment occurred when the appeal No. AP 953/05 was lodged with the BiH Constitutional Court. That was the moment when the Constitutional Court, consequentially, could and had to decide on the merits of the case. The appellants were two high-ranking officials from the RS (Bilbija and Kalinić) who were removed from their offices by a decision of the High Representative in 2004, and they were also barred from holding any public position and any office within political parties. The appellants first addressed the Court of BiH, which denied its competence to examine the acts of the High Representative. Both the appellants complained to the BiH Constitutional Court against BiH, and not against the OHR. The appellants claimed, inter alia, a violation of their right to an effective remedy stipulated under Article 13 of the ECHR. Namely, the appellants claimed that there was no single independent judicial instance available to them in BiH, which could provide them judicial protection against the individual decisions of the OHR.¹⁷²⁸

In its decision of 8 July 2006 (AP 953/05), the BiH Constitutional Court established a violation of Article 13 of the ECHR by BiH. The BiH Constitutional Court confirmed that there was no effective legal remedy against the decisions of the High Representative available within the legal system of Bosnia and Herzegovina.¹⁷²⁹ The State should not disregard its positive obligations under Article 1 of the ECHR, irrespective of the fact that the State transferred some of its competencies to the “international community”.¹⁷³⁰ The appellants’ constitutional rights and freedoms cannot be restricted or left entirely unprotected due to the fact that the High Representative has a special status in BiH. The State, contrary to its obligations, failed to take actions towards the relevant international bodies and institutions in order to establish a protection mechanism against breaches of human rights and freedoms by the High Representative. At the same time, in accordance with its case-law, the BiH Constitutional Court itself did not review the relevant individual decisions of the High Representative.¹⁷³¹

It was the first time that the BiH Constitutional Court had to deal with the question of whether the High Representative, in the exercise of his international mandate, could breach constitutional rights and freedoms in BiH. Successive Security Council Resolutions adopted under Chapter VII of the UN Charter recognise the High Representative as having authority under Annex 10 to the General Framework Agreement for Peace to make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council. Member States of the UN have an obligation under Article 25 of the UN Charter to carry out the decisions of the Security Council in accordance with the UN Charter. It is not entirely clear whether the relevant provisions of the Security Council Resolutions are the decisions of the Security Council. In addition, they do not say that they are decisions. However, they clearly go beyond mere recommendations, and Article 39 recognises only two formal acts which the Security Council can promulgate under Chapter VII, namely recommendations and decisions. The Constitutional Court therefore accepts that the relevant provisions of the Resolutions are decisions for the purposes of Article 25 of the Charter. In international law, the High Representative thus has power to make binding decisions, and authorities of Bosnia and Herzegovina have an obligation to co-operate with the High Representative, by virtue of both the General Framework Agreement for Peace and the Security Council Resolutions.¹⁷³²

Pursuant to Article 103 of the UN Charter, BiH obligations to act in accordance with decisions of the Security Council override the obligations under any other treaty. This means that, in case of a conflict, even the obligations related to human rights may be cancelled by the Security Council Resolutions adopted under Chapter VII of the UN Charter. The only possible exception so far recognised in the literature is an obligation which amounts to ius cogens, a peremptory norm of international law.¹⁷³³

However, the obligations of Bosnia and Herzegovina in public international law to co-operate with the High Representative and to act in conformity with decisions of the UN Security Council cannot determine the constitutional rights and freedoms applicable in BiH. Namely, the positive obligation of BiH to secure to its citizens the protection of rights and freedoms has no effect on the decisions of the High Representative. Second, Article 103 of the UN Charter deals only with a sub-set of possible conflicts of laws in public international law, namely conflicts between the obligations of Member States of the United Nations arising under various treaties. It does not attempt (and indeed would be powerless to attempt) to determine the effect of any such conflict on the obligations of the authorities of Member States under their national, constitutional or legal order. Finally, the commitments of the BiH authorities and the human rights applicable within the jurisdiction of Bosnia and Herzegovina are clearly enumerated in the BiH Constitution. Although the BiH Constitution has its origin in an international treaty, Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina, it has been functioning for more than eleven years as a national Constitution, the highest legal act of the State of BiH. In addition, it has a dual nature. It has an international aspect as one of the foundations for the existence and international recognition of BiH in the international community. Also, it has a purely national aspect when perceived from within the State as the highest source of validity for the laws and institutions of BiH. It is as a national, not an international, instrument that the Constitutional Court, as the highest judicial authority within BiH, interprets and gives legal effect.¹⁷³⁴

There is nothing in the international legal context that would lead to a conclusion that is different from the one reached on the basis of the interpretation of the rights in the national constitutional context.¹⁷³⁵ It follows from the aforementioned that the State has a positive obligation to ensure respect for the fundamental human rights enshrined in the Constitution of Bosnia and Herzegovina or stemming from international treaties and which have the source of their legal force in the BiH Constitution. Therefore, the question is raised as to whether BiH has undertaken activities aimed at securing an effective legal remedy against individual decisions of the High Representative. The answer would be negative.¹⁷³⁶ BiH was obliged to make an effort, through the Steering Board of the Peace Implementation Council and Security Council of the United Nations, a body in charge of nominating and confirming the appointment of the High Representative, to point to the alleged violations of constitutional rights of individuals on the grounds of lack of an effective legal remedy and thus to ensure the protection of constitutional rights of its citizens.¹⁷³⁷ There is no effective legal remedy available within the existing legal system of BiH against individual decisions of the High Representative concerning the rights of individuals, nor has Bosnia and Herzegovina undertaken activities, required by its positive obligation, to ensure an effective legal remedy against the said decisions of the High Representative through the bodies responsible for the nomination and appointment of the High Representative.

In view of the aforementioned, the Constitutional Court recalled the European Commission for Democracy through Law (the Venice Commission) opinion on decertified police officers, which had been adopted at its 64^th plenary session (Venice, 21-22 March 2005). The Venice Commission considered that neither the courts in BiH nor any other authority in BiH were competent to review or reverse the decertification decisions. Therefore, the Venice Commission held that it was appropriate that the United Nations carry out a review process of the decertification decisions that had been challenged before the Bosnian authorities. While it was up to the UN Security Council to decide as to which body would be the most appropriate to review the decertification proceedings, the Venice Commission suggested that a special body be set up by the Security Council and be mandated to review the decisions on decertification of police officers, which had been challenged before the authorities in BiH.¹⁷³⁸

Consequently, the Constitutional Court established a violation in the relevant case, which was lodged against the individual decisions of the High Representative, of the appellants’ right to an effective remedy under Article 13 of the ECHR since such an effective remedy did not exist and BiH made no attempt to secure it.

First: Legal protection against the OHR. Under the national constitutional system, which provides that certain agreements on human rights and freedoms shall be applied directly, legal protection against the acts of the High Representative, whose authority stems from Annex 10 to the General Framework Agreement for Peace and from the relevant decisions of the Security Council, which were adopted under Chapter VII of the UN Charter, must be secured. Neither national law nor international laws provide any regulation that would rule out the exercise of human rights and freedoms.

Second: There is no decision on the merits. The BiH Constitutional Court failed to decide on the standards of human rights protection that should be imposed on the High Representative in securing human rights and freedoms, and as to whether there are any restrictions in individual cases relating to the ordinary scope of the human rights protection that would be justified in the public interest, i.e., as to the implementation of the Peace Agreement. Namely, the BiH Constitutional Court did not decide on the constitutionality of the individual decisions of the High Representative.

Third: The necessity of existence of an internationally recognised judicial body. At the time when the BiH Constitutional Court was taking its decision, there was no competent body that could provide protection to the appellants (including the BiH Constitutional Court itself). The BiH Constitutional Court, with the recommendations of the Venice Commission, suggested that neither the BiH Constitutional Court itself nor any other national body could order the establishment of such a supervising body without the participation of the Security Council and, possibly, of the Peace Implementation Council.

Fourth: The contents of positive protection. The State’s responsibility related to a violation of the appellant’s rights under Article 13 of the ECHR does not lie in its failure to foresee adequate legal protection. In this context, the BiH Constitutional Court points to the fact that the State lacks the authority to do so. However, the State should have intervened with the legally (the UN Security Council) and politically (the Peace Implementation Council) responsible bodies in order to establish an internationally recognised judicial body and thus to secure legal protection for its citizens.

Fifth: The BiH Constitutional Court maintains a formula of functional duality and does not exceed the boundaries of responsibility established in relation to international law. The national legislature has the power to alter, if necessary, the laws imposed by the OHR and the BiH Constitutional Court is competent to review the constitutionality of those laws and, if necessary, to render them ineffective. On the contrary, individual acts of the High Representative are not based on international-legal authorities so that the national bodies are not competent to review whether or not those acts are compliant with the BiH Constitution.¹⁷³⁹