Authorised applicants

The authorised applicants under Article VI.3(a) of the BiH Constitution are a member of the Presidency, the Chair of the Council of Ministers, the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, one-fourth of the members of either chamber of the Parliamentary Assembly, or one-fourth of either chamber of a legislature of an Entity. The provision relating to the authorised applicants applies both to the abstract control (review) of constitutionality and disputes between the State authorities and federal disputes.

Taking into account this system, it should be noted that the authorities are not the holders of subjective rights and duties, since they do not have the status as legal entities. Only territorial-administrative units to which they belong have legal capacity. Therefore, although the responsibilities of territorial-administrative units are dealt with in federal disputes and those between the State authorities, the rights and duties of the authorities themselves are often mentioned, since they themselves exercise the competences of public and legal entities. After all, the Constitutional Court does not decide the subjective rights of the aforementioned authorities but the functionality of the political process.²⁸⁹⁸

A considerable restriction of the authorisation to refer a federal dispute or a dispute between the State authorities before the Constitutional Court may lead to a situation in which important disputes relating to the State organisation cannot be resolved by the Constitutional Court only because of the fact that an authorised person who would file the request cannot be found. Despite this conclusion, the Constitutional Court has inclined towards the interpretation being narrowly orientated to the linguistic meaning of Article VI.3(a) of the BiH Constitution.²⁸⁹⁹ So, for example, the outcome of an important federal dispute may exclusively depend on the will of an Entity’s legislature. If the latter does not want to institute proceedings before the Constitutional Court, the functionality of the State may be permanently burdened with pending disputes of competence.

The Chair of the Council of Ministers is authorised himself to file a request under Article VI.3(a) even, if necessary, if it is against the will of the Co-chair of the Council of Ministers. A joint and reconciled request of the Co-chairs is not needed.²⁹⁰⁰ A request cannot be declared inadmissible only because the applicant no longer holds the office based on which he was then authorised to file a request.²⁹⁰¹

Individual citizens,²⁹⁰² enterprises,²⁹⁰³ political parties,²⁹⁰⁴ municipalities,²⁹⁰⁵ heads of municipalities,²⁹⁰⁶ lower-instance courts or judges,²⁹⁰⁷ private institutes,²⁹⁰⁸ bar associations,²⁹⁰⁹ associations of retired persons,²⁹¹⁰ groups of citizens or citizen associations,²⁹¹¹ certain ministers, even when they are in dispute with one of the aforementioned authorities, are not authorised to file a request under Article VI.3(a) of the BiH Constitution.²⁹¹² The fact that the groups of citizens or associations try to challenge laws before the Constitutional Court, although they do not sustain damage in legal-subjective terms (Article VI.3(b) of the BiH Constitution), may be explained by the fact that the predecessor of the Constitutional Court, at the time of the (Socialist) Republic of Bosnia and Herzegovina, had jurisdiction to decide the so-called actio popularis.

Although the procedure of abstract control (review) of constitutionality is designated as an objective procedure in legal-constitutional theory because, on the one hand, an authorised person is only what is needed, not a respondent party, and on the other hand this procedure does not serve to effectuate subjective legal positions²⁹¹³ and as a rule it involves the other party to the proceedings, a kind of the applicant’s procedural adversary. We have in mind first of all the enactor of the challenged general act (Article 15 paragraph 1(a) of the Rules of the BiH Constitutional Court). A political conflict between the position and opposition is always behind the abstract control (review) of constitutionality; in the procedure of abstract control (review) of constitutionality before the Constitutional Court, they become natural adversaries, making thus the abstract control (review) a kind of adversarial procedure.²⁹¹⁴