C. International obligations imply responsibilities

Pursuant to Article II.1 of the BiH Constitution, Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognised human rights and fundamental freedoms. All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in Article II.2 of the BiH Constitution (Article II.3 of the BiH Constitution). The enjoyment of the rights and freedoms provided for in Article II or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination (Article II.4 of the BiH Constitution). Pursuant to Article II.6 of the BiH Constitution, 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 Article II(2) of the BiH Constitution. Based on the mentioned international and legal responsibility of the State, the BiH Constitutional Court, in a number of its decisions, established certain rules on responsibilities.²⁵⁸⁷ In order to meet its obligations towards the citizens throughout the country, the State must have appropriate authority if the activity of the Entities is not sufficient.

The BiH Constitution, also, establishes the fundamental constitutional principles and goals for the functioning of Bosnia and Herzegovina, as well as a catalogue of human rights and fundamental freedoms, which should be understood as the guiding principles of the Constitution or as the restrictions on the exercise of the responsibilities of Bosnia and Herzegovina, as well as of the Entities.²⁵⁸⁸ All bodies of Bosnia and Herzegovina have the obligation to guarantee the right to property, as that follows from the obligation relating to the protection of private property and the promotion of a market economy (line 4 of the Preamble of the BiH Constitution), as well as the obligation relating to the protection of freedom of movement of goods, services, capital and persons (Article I.4 of the BiH Constitution) and the protection of the right to property (Article II.3(k) of the BiH Constitution) together with the obligation under Article II.6 of the BiH Constitution, which stipulates that the Entities must “apply and conform to the human rights and fundamental freedoms referred to in paragraph 2”. The right to property is not only a right which all authorities of BiH must comply with, but there is also a positive obligation on the State to provide for the conditions which will ensure the enjoyment of that right.²⁵⁸⁹ Given that Article II.3 of the BiH Constitution stipulates that “all persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms […]” listed in the mentioned paragraph, Article II.3 therefore grants a general authority to the joint institutions of Bosnia and Herzegovina to regulate all matters enumerated in the catalogue of human rights, which cannot be exclusively left to the Entities because the protection must be guaranteed to “all persons within the territory of Bosnia and Herzegovina”.²⁵⁹⁰

With respect to this issue (the State’s obligation to guarantee constitutional rights and freedoms), the Human Rights Chamber’s position is not consistent. Thus, for instance, the Human Rights Chamber found no responsibility of Bosnia and Herzegovina for violations of human rights and freedoms relating to the disappearance of a military commander of the Army of the Republic of Bosnia and Herzegovina in the Žepa enclave, as his disappearance is attributed solely to Bosnian Serb military units.²⁵⁹¹ As to a possible violation of the wife’s right not to be subjected to inhuman and degrading treatment under Article 3 of the ECHR, because of the stress caused by the continuing uncertainty concerning her husband’s fate, and taking into account the case-law of the BiH Constitutional Court, one may find the responsibility of Bosnia and Herzegovina under Article II. 1 of the BiH Constitution in conjunction with Article 3 of the ECHR. In another case, the Human Rights Chamber established the responsibility of the State; however, its responsibility relates to a failure to fulfil its positive obligations to protect rights.²⁵⁹²

The BiH Constitutional Court provides reasons as to the authority of Bosnia and Herzegovina to establish a court at State level, which is not foreseen by the BiH Constitution, asserting that such a court at State level is necessary for guaranteeing individual rights, such as the right to a fair trial or the right to have an effective remedy, as well as the principles of the rule of law. The central part of the mentioned Decisions reads: “the establishment of the Court of Bosnia and Herzegovina can be expected to be an important element in ensuring that the institutions of Bosnia and Herzegovina act in conformity with the rule of law and in satisfying the requirements of the ECHR to provide a fair hearing and adequate judicial remedy.”²⁵⁹³ As long as the Court of Bosnia and Herzegovina is not operational, there will be no possibility in the legal system of Bosnia and Herzegovina to challenge decisions by the institutions of Bosnia and Herzegovina before an organ that satisfies the requirements of an independent and impartial tribunal.²⁵⁹⁴ In these circumstances, Bosnia and Herzegovina, functioning as a democratic State, is authorised to establish, in the areas under its responsibility, other mechanisms, besides those explicitly provided for in the BiH Constitution, and additional institutions as necessary for the exercise of its responsibilities, including the setting up of a court to strengthen the legal protection of its citizens and to ensure respect for the principles of the ECHR.²⁵⁹⁵

Contrary to the aforementioned, in the case of Softić, relating to the termination of labour relations by a State Ministry, the Human Rights Chamber took the position that as long as such a court does not exist (in fact, a State-level court), the courts of the Federation of BiH are competent to decide the applicant’s case. These courts offer sufficient guarantees for effective judicial protection.²⁵⁹⁶ Also, in the case of Zornić, the Human Rights Chamber examined the issue as to whether Bosnia and Herzegovina bears any responsibility for any alleged failures of its component Entities. The Human Rights Chamber refused such a possibility, taking into account Article I of Annex 6 to the Dayton Peace Agreement and the division of responsibilities under the BiH Constitution.²⁵⁹⁷

Likewise, the Case No. U 26/01, the BiH Constitutional Court, in Case No. U 18/00, derives the constitutional obligation of the State to ensure constitutional rights and freedoms safeguarded by Article II of the BiH Constitution from the State’s responsibility to regulate the substantive and legal fields that is not explicitly mentioned in Article III.1 of the BiH Constitution.

In Case No. U 18/00, the appellant was injured in a traffic accident which occurred in 1979 on a main road when a stone fell from a cliff, broke the window of the bus where the appellant was, and hit him on the head. As a result he suffered serious bodily injury so that he lost his ability to work. Since then, the competent courts, on various occasions, awarded him compensation for damage payable from the Republic Fund for Main and Regional Roads of Bosnia and Herzegovina. In 1998, once again the appellant filed a civil action and claimed compensation for damage (as his health condition deteriorated). This time, the civil action was rejected for lack of standing to be sued. The Federation of BiH and the Republika Srpska maintained that they were not liable for paying compensation to the appellant. Due to the new constitutional and legal system, the original institution responsible for compensation for damage at the level of the Republic “disappeared”.

Starting from Article III.1(i) of the BiH Constitution (responsibility for regulation of inter-Entity transportation) in relation to the right of access to court and effective legal remedies, the BiH Constitutional Court established that Bosnia and Herzegovina was responsible to compensate the appellant for damage. The Republika Srpska cannot be held responsible, as it – unlike the Federation of BiH – failed to adopt the legal regulations with respect to legal succession.²⁵⁹⁸ Indeed, the Federation of BiH, through the Dayton Peace Agreement, took over more responsibilities from the Republic of BiH. The Ministry for Transportation and Communications took over the responsibilities and resources of the former institutions and bodies of the Republic of Bosnia and Herzegovina, whereby it took over responsibility for the obligations incurred by the Republic of Bosnia and Herzegovina.²⁵⁹⁹ Nevertheless, such a transfer is not significant as, on the one hand, it is in contravention of Article I of the BiH Constitution, according to which the Republic of BiH continues its legal existence under international law as a state and, on the other hand,²⁶⁰⁰ pursuant to Article III.1(i) of the BiH Constitution, regulation of inter-Entity transportation falls within the exclusive competence of the State.²⁶⁰¹ The State cannot circumvent its obligation to establish bodies that are within its exclusive competencies under the Constitution of Bosnia and Herzegovina. However, a counter-thesis is also valid: the Entities cannot take over the State’s competencies provided by the Constitution of Bosnia and Herzegovina.²⁶⁰² Nevertheless, as regards the responsibility of the State, i.e., its standing to be sued, it may be reasoned that only the State, through its legal acts, might provide adequate redress for a violation of the right of access to court and the right to an effective legal remedy. Shortcomings in the judicial systems of the Entities, that is, of the State, may not have an effect upon respect for fundamental rights and freedoms of individuals, which are safeguarded by the Constitution; an individual should not bear an excessive burden when trying to exercise his/her rights in the most effective manner.²⁶⁰³

It is often difficult to determine a responsible legal personality (the standing to be sued) due to the complex division of responsibilities between the State and the Entities.²⁶⁰⁴ By analysing the case-law of the BiH Constitutional Court or the Human Rights Chamber or the Human Rights Commission within the BiH Constitutional Court it may be seen that this is a very serious issue. Thus, for instance, based on a very complex analysis, the mentioned institutions concluded that the issue of “old foreign currency savings” was to be regulated by the enactment of a State law on public debt as the State was responsible for the protection of the private property of its citizens,²⁶⁰⁵ and that the Entities were responsible for regulating the issue of “war damage”.²⁶⁰⁶

What conclusion can be made from the aforementioned cases? If it is a case that relates to a substantive and legal constitutional area, which, by its nature, falls within the protection of human rights and freedoms and which, under the BiH Constitution, is originally the responsibility of the Entities, then the State has a subsidiary responsibility for regulating the substantive and legal constitutional area. The requirement for “activation” of this subsidiary responsibility (this means, the point in time when the State avails itself of the right to intervene) is that the Entities fail to fulfil their obligation to protect “the highest level” of human rights and freedoms, as required under the BiH Constitution.²⁶⁰⁷ In such a situation, the type and scope of activities at the State level depend on the particularities of each individual case, and a margin of appreciation in the decision-making is granted to the State. In this manner, the exclusive responsibilities of the Entities are transferred into the concurrent responsibilities of the State and the Entities, which are regularly defined in the “so called” framework laws (for more on this see the text below). If the State did not have this subsidiary responsibility for regulating a substantive and legal constitutional area or failed to avail itself of it, the State would breach its positive constitutional obligation to protect human rights and freedoms. In substantive and legal constitutional areas, which fall within the State’s exclusive competence, the State itself, without the Entities, has the sole responsibility for protecting human rights and freedoms (“the highest level”).²⁶⁰⁸ A failure to ensure “the highest level” of protection may not be compensated by any intervention by the Entities, irrespective of whether or not such interventions were actually purposeful.