Unrestricted access to human rights monitoring mechanisms established for BiH

“Providing unrestricted access” to all bodies and organisations listed in Article

II.8 may in fact be difficult to reconcile with a number of other constitutional provisions, such as the right to fair proceedings²⁵⁷⁰ or the independence of the judiciary.²⁵⁷¹ Especially in the light of developments since the entry into force of the Dayton Agreement, a balance has to be found on a case by case basis, taking due consideration of all principles and fundamental rights involved in a given case as well as the overall development of human rights protections and the increased taking over by national institutions of responsibilities which were initially almost exclusively performed by the international community. For example, extensive monitoring or even “mentoring” of war crimes cases before the Court of BiH tried before panels composed of a majority of international judges by international organisations in 2008 would appear to be outside the scope of Article II.8 of the Constitution, especially considering the changes adopted and implemented since the entry into force of the Dayton Agreement, including, but not limited to, the reform of the national judiciary, the establishment of a functioning appeals system both at the Entity and State levels, the accession of Bosnia and Herzegovina to the Council of Europe, including the review mechanism under the European Court of Human Rights, and the basically positive assessment of the domestic judicial system by the Referral Bench and the Appeals Chamber of the ICTY in proceedings under Rule 11bis of the RoPE.²⁵⁷² The Decision of the Permanent Council of the OSCE on “co-operation between the OSCE and the ICTY” of May 2005,²⁵⁷³ according to which the OSCE agrees to carry out the monitoring of cases transferred by the ICTY “within the existing mandates and resources of the respective missions” does not change the mandate of the OSCE as provided for in the Dayton Agreement and therefore needs to be interpreted in light of Article II.8.