C. Procedure (Article VI.2)

2. Procedures

(a) A majority of all members of the Court shall constitute a quorum.

(b) The Court shall adopt its own rules of court by a majority of all members. It shall hold public proceedings and shall issue reasons for its decisions, which shall be published.

Article VI.2 of the BiH Constitution stipulates fundamental principles for conducting procedure before the BiH Constitutional Court and authorises the Court to adopt its own “Rules of Procedure”.

The BiH Constitutional Court may exercise its function if a majority of all members are in attendance (quorum). When it comes to holding a plenary session, in addition to the existence of quorum in order for it to function, in Article 42, paragraph 2 of the Rules of the BiH Constitutional Court, present version, the BiH Constitutional Court added one more requirement. Namely, despite the session being attended by five judges, under the logic of the Rules, quorum shall not be met if no judges from one of the constituent peoples are present at the session of the Constitutional Court. Doubts about

the constitutionality of this provision have already been presented above.²⁸⁸⁷ Explanations as to the doubt about the constitutionality of these provisions should be supplemented also by the fact that all judges – and not solely the judges coming from among a specific constituent people – are called upon and are obliged to protect the ethnic interests of all groups (constituent peoples or ethnic minorities). Unlike the House of Peoples of the Parliamentary Assembly of BiH, the BiH Constitutional Court, by the force of the BiH Constitution, is not drafted on the principle of ethnic, but territorial proportion.

The BiH Constitution does not stipulate a majority within the quorum which is required for a decision to be adopted. Depending on whether decision-making is taking place in a plenary or in chambers, the Rules of the BiH Constitutional Court, present version, define the required majority in a different manner. Under Article 40 of the Rules of the BiH Constitutional Court, present version, a decision of the Constitutional Court at plenary session shall be taken by a majority vote of all judges (paragraph 2). It is the Grand Chamber, in principle, that decides appeals,²⁸⁸⁸ by unanimous vote (paragraph 3). A decision of the Chamber, which mainly relates to interim measures, is also adopted by unanimous vote (paragraph 4).

Article VI.2 of the BiH Constitution guarantees two fundamental presumptions for the conduct of the proceedings before the BiH Constitutional Court. Decisions must be reasoned and they must be the result of public proceedings. Both elements were closely elaborated on in the Rules of the BiH Constitutional Court,²⁸⁸⁹ which, in any respect, regulate numerous other aspects of proceedings before this court. Still, “the publicity” of the proceedings before the Court, according to the interpretation of the BiH Constitutional Court, should not be understood in such a way so that all cases require a public hearing to be held. Quite the opposite. Under Article 46, paragraph 1 of the Rules of the BiH Constitutional Court, present version, the BiH Constitutional Court shall hold a public hearing in plenary only when necessary to discuss directly, in the proceedings before the Constitutional Court, an issue relevant for decision- making. The BiH Constitutional Court shall decide at a plenary session on whether it is necessary to hold a public hearing (Article 46, paragraph 2 of the Rules of the BiH Constitutional Court, present version). The publicity of the proceedings before the BiH Constitutional Court shall be secured by informing the public of the preparation for and holding of sessions and public hearings before the BiH Constitutional Court, by issuing statements about the development of the proceedings, by issuing press releases to the media, by holding press conferences, by guaranteeing the right to inspect files etc. Reasoning and conclusions make up elementary, integral parts of each decision.

Article VI.2 of the BiH Constitution guarantees the authority of the BiH Constitutional Court to adopt its own “rules of court”. The Rules of Court – specifically named the Rules – comprise the rules on the internal structure of the Court, and on the procedure itself. This autonomy is a condition for the independence of the BiH Constitutional Court from other constitutional authorities. Although the autonomy and independence of the BiH Constitutional Court are not expressis verbis stipulated in the BiH Constitution itself, these principles, nevertheless, may be deduced from (a) an order to the Constitutional Court to “adopt[…] its own rules of court”, (b) the lack of an order to the legislature to stipulate in legal terms the internal structure and procedure before the BiH Constitutional Court, as well as (c) the general constitutional principle of division of authority, which is an inherent element of the principle of the legal state (Article I.2 of the BiH Constitution) of the European constitutional traditions.²⁸⁹⁰ Also, this autonomy corresponds to the special rank and position of the BiH Constitutional Court as a constitutional authority. In its case-law, the BiH Constitutional Court declared the Rules of the BiH Constitutional Court to be a constitutional category.²⁸⁹¹ In this manner, the possibility for the legislative or executive authority to wield influence on the BiH Constitutional Court was limited. At the same time, extensive judicial autonomy implied that the BiH Constitutional Court solved “internal issues” in a rather good manner in terms of quality (procedure, organisation and other significant issues) and shaped the competences of the Court by procedural rules.

However, that does not mean that the BiH Constitutional Court has operated in “a vacuum” of State authority. Admittedly, the BiH Constitutional Court, by referring to Article IX.2 of the BiH Constitution, forbade the legislature to reduce the allowances (salaries) of the judges of the BiH Constitutional Court throughout the duration of their respective mandate.²⁸⁹² Still, the Parliamentary Assembly of BiH has authority to determine the budget of the BiH institutions and to enact relevant laws, although it may do so solely while abiding by the BiH Constitution.²⁸⁹³ When it comes to the BiH Constitutional Court in particular, it means that the Court has the right to retain its financial independence and autonomy. That includes the right of financial planning, proposing a budget and allocating the approved budget funds.²⁸⁹⁴ On the other hand, the BiH Constitutional Court must, by all means, be subject to audits by a competent authority when it comes to spending the approved budget funds.²⁸⁹⁵