G. Article II.6 – Implementation

Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above.

Article II.6 of the BiH Constitutional Court regulates the matter which, from the point of view of the legal state, implies in itself that the public authorities are bound by human rights and freedoms. The obligation to protect the rights under Article II.1 of the BiH Constitution must be complied with in the procedure of the implementation of this provision. In connection with this matter, the constitutional principle of the hierarchical-normative supremacy of the BiH Constitution over “an ordinary” law of central power, including the law of lower administrative territorial units (entities, canton, municipalities), should be taken into consideration, as well as the obligation of all levels of power to comply with the BiH Constitution (Article III.3(b) of the BiH Constitution in conjunction with Article XII.2 of the BiH Constitution).²⁴⁷⁴ Given the fact that the Framer of the Constitution explicitly referred to the matter which is ordinarily understood – the obligatory application of and respect for human rights and freedoms – a conclusion could be made that the Framer’s intention was to avoid, at any price, the misunderstandings which usually arise in the authoritative regimes: the only thing that matters is having the State open to the principle of respect for human rights and freedoms pro forme, but not in reality. In other words, as long as everything is fine on paper, no question is raised as to the significance of that paper for an individual. As to the authors of the constitutional text written in Dayton who experienced difficulties regarding the lack of implementation in many transitional countries, they obviously wanted to avoid the gap which usually arises between the constitutional demands or needs on the one hand, and the constitutional reality on the other. Given that the sentence from the first part of Article II.6 of the BiH Constitution (“Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities”) does not have an excessively dogmatic character, it resolves the concerns of the Framer of the Constitution as to the possibility that some administrative-territorial level of government may neglect the obligation to effectively comply with human rights and freedoms.

Pursuant to the judicial practice of the BiH Constitutional Court under Article II.6 in conjunction with Article II.1 and Article II.2 of the BiH Constitution, a conclusion could be made that the ECHR has a direct effect on all administrative-territorial levels, in other words on all kinds of power: legislative, administrative and judicial.²⁴⁷⁵ In the course of the decision making procedure, all State authorities, in particular the courts, must take into consideration not only laws and other general acts but also the standards of human rights and freedoms, including the remainder of constitutional law.²⁴⁷⁶ Therefore, in an individual case a decision may be made directly on the basis of the BiH Constitution if a lower-ranking law gives no appropriate legal basis for the decision.²⁴⁷⁷ Moreover, a Constitution- related order may be derived from Article II.6 in conjunction with Article II.1 of the BiH Constitution to quash or amend all legal acts which are in contravention of the ECHR, and this applies to all State authorities. This order was extended by the Constitutional Court of BiH to include all other constitutional law, as well as the constitutional and general principles of international law which are an integral part of the BiH Constitution.²⁴⁷⁸ Article II.6, in conjunction with Article II.1 and Article II.2 of the BiH Constitution, provides for an obligation to respect the constitutional-legal standards under the ECHR with no exceptions.²⁴⁷⁹ Yet, what do these exceptionally important conclusions on which constitutional law is largely based mean to the public authority?

This interpretation of Article II.6 of the BiH Constitution should not amount to a situation where the administrative bodies and courts will not apply legal regulations which they consider to have been in contravention of the BiH Constitution or the ECHR. A specific advantage of the direct application of human rights and freedoms in an individual case must not overcome the legal uncertainty which may be produced by such conduct. Direct application of human rights and freedoms and the supremacy of the BiH Constitution and human rights and freedoms should not, accordingly, amount to a situation where the administrative bodies and courts would be entitled to make a common law ineffective on an incidental basis (in individual cases), but it rather imposes an obligation to always take into consideration the BiH Constitution and human rights and freedoms. Should there be a possibility for multiple interpretations of common law, then a law which is in line with the BiH Constitution should be chosen. If a legal act can in no way be interpreted in a constitutional manner, the distinction should be made as to whether the administrative or judicial body came to such a conclusion.

As for administrative bodies, when it comes to parliamentary (legislative) legal acts (in particular, the laws), the principle of lawfulness applies (i.e., the obligation to comply with the law), even in a situation where the administrative bodies have doubts about their constitutionality. The compatibility of a legislative legal act with the BiH Constitution or international agreements may be established only in individual cases if the relevant case reaches the competent court,²⁴⁸⁰ and this is done in two possible ways:

■ referring the case to the Constitutional Court by the assigned court on the basis of Article VI.3(c) of the BiH Constitution, or

■ by filing a constitutional appeal by the injured party within the appellate procedure under Article VI.3(b) of the BiH Constitution.²⁴⁸¹

This conclusion arises from the justified monopolistic position of the Constitutional Court of BiH to decide the Constitution-related cases. If the issue is about the lower legal acts (such as the statutes, rules or decrees), the administrative bodies can not avoid applying them because the obligation of compliance with the principle of legal certainty is in place and this principle is inherent to the principle of a legal state (the rule of law) under Article I.2 of the BiH Constitution. However, as to the complaint of the party against the unlawfulness or unconstitutionality of that administrative act, the administrative body that enacted it or a higher instance administrative body or, eventually, the administrative court may quash or amend that administrative act upon the civil action and thus bring it in line with the law or the BiH Constitution.²⁴⁸² Finally, during the judicial proceedings or upon their completion the case may again reach the Constitutional Court of BiH in two possible ways mentioned above, in which case the competence of the Constitutional Court of BiH, when it comes to proceedings under Article VI.3(c) of the BiH Constitution, may, to some extent, be limited ratione materiae.²⁴⁸³

The courts are not entitled to make an applicative norm ineffective on an incidental basis because they consider it to be in contravention to the BiH Constitution. Neither are they entitled to apply that norm in an individual case. If a constitutionally conforming interpretation is not possible and they are convinced that the provision is unconstitutional they are obliged to terminate the proceedings and refer the disputed and Constitution-related issue to the BiH Constitutional Court.²⁴⁸⁴

The Constitutional Court of BiH also applied the provision of Article II.6 of the BiH Constitution to the discussion on the capability of enjoying the protection of human rights and freedoms.²⁴⁸⁵