Appeal, i.e., constitutional review [Article VI.3(b) of the BiH Constitution and application to the Human Rights Chamber (Article VIII.1 of Annex 6)]

Appellate jurisdiction, i.e., the introduction of an appellate action to the Constitutional Court is a novelty in the legal system of Bosnia and Herzegovina. The former Constitutional Court of the Republic of Bosnia and Herzegovina dealt with actio popularis²⁹⁵¹ but not with individual constitutional actions (today known as “appeals”). Through an appeal filed with the Constitutional Court, the appellant is given an opportunity to have reviewed the legal acts of all three State powers, if they are in violation of the appellant’s legal and constitutional position. The appeal is always an extraordinary legal remedy; the principle of subsidiarity applies to it. The appeal is an extraordinary legal remedy, since it provides legal protection of a constitutional nature, and does not deal with the legal position guaranteed by ordinary positive legal regulations. The appeal has a subsidiary character, since it is admissible only if protection through effective regular legal remedies fails.²⁹⁵² When interpreting and applying ordinary laws, the administration, i.e., administrative authorities and ordinary courts, by virtue of Articles II.6 and III.3(b) of the BiH Constitution, have the obligation to respect constitutional law, particularly constitutional human rights and obligations.²⁹⁵³

According to the linguistic meaning, an appeal under Article VI.3(b) of the BiH Constitution is formulated in a broader manner than a constitutional appeal (Verfassungsbeschwerde) under German Basic Law. Neither the prescribed requirements nor the conditions for making a decision, as laid down in the Rules of the BiH Constitutional Court, restrict the broad linguistic meaning of the individual appeal which is to be filed in the case of alleged violations of constitutional rights and freedoms. Therefore, it could be said to be a constitutional revision, which means a legal remedy which may be pursued not only by physical persons and legal persons but also by legal public entities for violation not only of constitutional rights and freedoms but also of any constitutional norm. As indicated below, the case-law of the Constitutional Court has not limited the scope of application of Article VI.3(b) of the BiH Constitution, which is the case with a constitutional appeal under the German Basic Law or applications under the ECHR.

The Constitutional Court’s jurisdiction to deal with appeals, as individual appeals, is a matter which overlaps with the jurisdictions of the Human Rights Chamber. Both courts, through their general legal acts (rules of procedures) or through their case-law, have developed to a large extent identical and comparable admissibility requirements.

Unlike Article VIII.2 and VIII.3 of Annex 6, Article VI.3(b) the BiH Constitution does not provide for a precise list of requirements for making a decision on the merits. They are regulated in Article 16 of the applicable Rules of the BiH Constitutional Court. According to paragraph 1 of Article 16, the Court shall examine an appeal only if all effective remedies that are available under the law (paragraph 3 of this Article makes an exception) against a judgment or decision challenged by the appeal are exhausted and if the appeal is filed within a time-limit of 60 days as from the date on which the decision on the last effective remedy used by the appellant was served on him/her. According to paragraph 2 of Article 16, the appeal must not be manifestly (prima facie) ill-founded, i.e., with no chance of success. Finally, paragraph 4 of this Article regulates other admissibility requirements (the list of admissibility requirements is specified unlike the list under Article VIII.3(c) of Annex 6):

■ the Constitutional Court is not competent to make a decision (comparable with Article VIII.2 (c) of Annex 6);

■ the appeal is anonymous (comparable with Article VIII.3(c) of Annex 6);

■ the appellant has withdrawn his/her appeal (comparable with Article VIII.3(a) of Annex 6);

■ the time-limit for the appeal expired (reiteration of admissibility requirements referred to in paragraph 1; comparable with Article VIII.2(a) of Annex 6);

■ the appeal was lodged by an unauthorized person (comparable with Article VIII.2 (c) of Annex 6);

■ the Constitutional Court has already decided about the issue concerned and the statements or evidence from the appeal do not provide sufficient grounds for a new decision (comparable with Article VIII.3(b) of Annex 6);

■ the appellant abused the right to file an appeal (comparable with Article VIII.2 (c) of Annex 6);

■ the legal circumstances have changed (comparable with Article VIII.3(c) of Annex 6);

■ the appeal is ratione materiae incompatible with the Constitution (comparable with Article VIII.2 (c) of Annex 6);

■ the appeal is ratione personae incompatible with the Constitution (comparable with Article VIII.2 (c) of Annex 6);

■ the appeal is ratione temporis incompatible with the Constitution (comparable with Article VIII.2 (c) of Annex 6);

■ the appellant failed to supplement or specify the appeal within the given time-limit (comparable with Article VIII.2 (a) of Annex 6);

■ the appeal is premature (comparable with Article VIII.2 (a) of Annex 6);

■ the appellant did not exhaust all remedies available under the law (comparable with Article VIII.2 (a) of Annex 6).