A. Introduction

Although the former SFRY and RBiH had their respective constitutional courts, the BiH Constitutional Court, by its personnel composition, extensively set jurisdictions and substantive basis for constitutional control, constitutes a legal novum, a premise that applies to the entire BiH Constitution, as well as to the BiH Constitutional Court.²⁸⁷⁰ Apart from the continuity of the constitutional personality of Bosnia and Herzegovina, very few similarities with the previous republic Constitutional Court have persisted. Equating the rights of citizens to institute proceedings for constitutional control (actio popularis) before the former republic Constitutional Court with an individual constitutional appeal before the present day Constitutional Court was driven by an urge to give priority to the RBiH Constitution over the BiH Constitution in terms of legitimacy. “[Developed] protection and refined dogmatic of human rights and fundamental freedoms have never been virtues of the constitutional systems” of the former Yugoslav Republics.²⁸⁷¹

The BiH Constitutional Court is a constitutional authority.²⁸⁷² The jurisdictions thereof are explicitly stipulated in the BiH Constitution.²⁸⁷³ The BiH Constitutional Court, as a last instance in the interpretation of the BiH Constitution, shall have the final word in constitutional disputes arising between other constitutional authorities. Despite this, its “constitutional function”²⁸⁷⁴ does not include the right to expand its jurisdictions beyond the constitutional mandate. The mission of the BiH Constitutional Court to protect the BiH Constitution forces it at the same time to self-restriction. The BiH Constitutional Court carries a special burden of responsibility, notably that of deciding, in the last instance, the most important constitutional issues in BiH. This requires that the judges of the Court, being the highest in the judicial hierarchy, possess professional excellence, level-headedness, vision and judicial restraint.

The BiH Constitutional Court, by the force of the BiH Constitution, has a special place in the judiciary. It is part of judicial authority. The BiH Constitution does not stipulate solely its jurisdictions but bestows upon it authority to adopt its own “Rules of Procedure”. Due to the non-existence of the constitutional Framer’s order – which is present in other constitutions²⁸⁷⁵ – to regulate through law the procedure and organisation of the BiH Constitutional Court, this highest court in the State, regulates very thoroughly, in its Rules²⁸⁷⁶ and on its own, the constitutional missions referred to in Article VI of the BiH Constitution. Considering the aforementioned, one may speak of a dualist model of the judiciary of Bosnia and Herzegovina.²⁸⁷⁷ Certain structures of the so-called uniform model are recognisable solely in relation to the appellate jurisdiction of the BiH Constitutional Court. Namely, as an instance of review in individual cases, pursuant to Article VI.3(b) of the BiH Constitution, the BiH Constitutional Court discusses constitutional issues. However, ordinary courts are called upon to interpret and apply the BiH Constitution. Yet, one should emphasise that only the BiH Constitutional Court has powers to establish the unconstitutionality of a general act and to render such an act ineffective.²⁸⁷⁸