D. Article II.3 of the BiH Constitution – an example of enumeration of human rights

All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include:

a) The right to life.

b) The right not to be subjected to torture or to inhuman or degrading treatment or punishment.

c) The right not to be held in slavery or servitude or to perform forced or compulsory labour.

d) The rights to liberty and security of person.

e) The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings.

f) The right to private and family life, home, and correspondence.

g) Freedom of thought, conscience, and religion.

h) Freedom of expression.

i) Freedom of peaceful assembly and freedom of association with others.

j) The right to marry and to found a family.

k) The right to property.

l) The right to education.

m) The right to liberty of movement and residence.

Article II.3 of the BiH Constitution guarantees everyone in the territory of Bosnia and Herzegovina the rights afforded by the ECHR and offers, as an example, a set of constitutional rights and freedoms. The primary objective of these rights and freedoms is that they are “at first sight” observable and, in this way, available to their holders so that there is no need to seek these rights through international mechanisms affording the protection of human rights and freedoms enumerated in the BiH Constitution and which are even now, for various reasons, unavailable to their beneficiaries.²¹¹⁹ However, these rights are not superior to other constitutional rights and freedoms nor are they specified. Such a conclusion follows already from the linguistic meaning of Article II.3 of the BiH Constitution. Because of the same interpretation of these rights and freedoms, the BiH Constitutional Court has rejected the possibility of separately examining violations of the rights and freedoms enumerated in Article II.3 of the BiH Constitution in cases where it had already examined alleged violations of the same or similar rights and freedoms protected under the ECHR. The reason for this is the fact that the rights and freedoms enumerated in Article II.3 of the BiH Constitution do not offer a broader scope of protection than the rights and freedoms afforded by the ECHR.²¹²⁰

For the reasons already described above as to the need to comply with the normative principle of the constitutional rights and freedoms (the legal regulation), the enumeration of this second generation of very important human rights and freedoms (such as the right to health) in Article II.3 of the BiH Constitution was desisted, which is different from, for example, Article II.A.2(1)(m)-(q) of the Federation of BiH Constitution. Nevertheless, it may be noted that the International Covenant on Economic, Social and Cultural Rights has not been deleted from the list of international mechanisms for the protection of human rights and freedoms referred to in Annex I to the BiH Constitution.²¹²¹ It is also interesting to note that in former proposals on amendments to the BiH Constitution, economic, social and cultural rights, in the same way as group rights and freedoms, including the protection of minorities, are not formulated as constitutional objectives but as rights and freedoms with no difference in their scope of applicability compared to other constitutional rights and freedoms (primarily political and civil rights). A lack of these rights in Article II.3 of the BiH Constitution, per se, has no impact as to the effect or the range of effect within the constitutional order. Given the effect of such a wide spectrum of agreements for the protection of human rights and freedoms, the idea for a while was to make a clarification by way of a normative collision clause stipulating that in the case of any dilemma as to the effect of certain rights and freedoms, those rights and freedoms that are more favourable for their beneficiaries prevail. Finally, this idea was abandoned as such an approach was implied.