Authorisation to file an appeal (standing to sue)

A frequent reason why the appeal is rejected for lack of authorisation to file an appeal under item 5 is the fact that the appellant was not a party to the proceedings before the ordinary courts so that the final court decision does not affect him/her at all.³¹⁸⁷ There is also a lack of authorisation to file an appeal if not only an injured party (a party to the proceedings) but also his/her representative files an appeal in his name³¹⁸⁸ or he/she files an appeal before the Constitutional Court without a valid power of attorney.³¹⁸⁹ The authorised appellant’s representative must not transfer his/her power of attorney to a third person without consent given by the appellant.³¹⁹⁰ If the appellant dies in the course of the proceedings, the authorization for further representation ceases in principle to be in force,³¹⁹¹ unless his/her successors replace him/ her (Article 65, paragraph 2 of the applicable Rules of the BiH Constitutional Court).³¹⁹²

In principle physical and legal persons have legal standing to file an appeal. By the nature of things, physical persons may refer to all constitutional human rights and freedoms under the BiH Constitution and ECHR. Legal persons may refer to those constitutional human rights under the BiH Constitution and ECHR which apply to them.

Unlike an application with the ECtHR or a constitutional appeal with the German Federal Constitutional Court, Article VI.3(b) of the BiH Constitution and the relevant provisions of the Rules of the BiH Constitutional Court do not impose any limits relating to the right to file an appeal. In this respect, according to the linguistic interpretation, this provision does not exclude the public authorities as possible appellants. The Constitutional Court’s jurisprudence relating to this issue was inhomogeneous for a long time. As reasoned by the Constitutional Court in the beginning, public legal persons such as the Fund for Pension and Disability Insurance³¹⁹³ were denied the authorisation to file an appeal on the grounds that in principle the ECHR and relevant provisions of the BiH Constitution provide protection only to private physical and legal persons, non-governmental organisations and associations of citizens, and not to State authorities and public institutions which perform public duties. In addition to this, State authorities and public institutions, based on Article 1 of the ECHR and Article II.6 of the BiH Constitution, have an obligation to protect human rights and fundamental freedoms of citizens. This reasoning with regard to the standing to sue was applied in the case in which the Ministry of Defence of the Federation of BiH filed an appeal³¹⁹⁴

In other decisions, the Constitutional Court recognised the standing to sue of the State authorities, administrative-territorial units and public entities. In Case No. U 5/99, the Constitutional Court tacitly recognised a Canton’s authorisation (the canton was represented by the Chairman of the Cantonal Assembly) to file an appeal. In particular, the Constitutional Court took a decision on the merits, and, in the “Admissibility” part of the decision, dealt only with the issue of whether the Constitutional Court of BiH had jurisdiction to review a decision of the Constitutional Court of the Federation of BiH.³¹⁹⁵ It may be concluded that in Case No. U 51/01 the Constitutional Court also took as a starting point the fact that the State authorities had the right to file an appeal under Article VI.3(b) of the BiH Constitution.

In this case, the Prosecutor’s Office of the Sarajevo Canton filed an appeal with the Constitutional Court against a judgment of the Supreme Court of the Federation of BiH, whereby it had decided that another court had territorial competence over a case relating to the criminal offence of war crimes against civilians, and not the court before which the Prosecutor’s Office had instituted proceedings. The Prosecutor’s Office took the view that any court has jurisdiction to conduct proceedings relating to the criminal offence of war crimes against civilians, regardless of the provisions of the national legislation with regard to the territorial competence. Besides, the Prosecutor’s Office argued that the procedural law was violated, which the Supreme Court of the Federation of BiH confirmed but did not want to rectify the error to the detriment of the accused person. Such conduct, in the view taken by the Prosecutor’s Office, was unlawful. Finally, it was stated that the Supreme Court of the Federation of BiH wanted to bring war criminals on trial before the court which would be ethnically biased. Therefore, such a decision was in violation of international criminal law, which in BiH has priority over ordinary laws. Finally, the Prosecutor’s Office argued that the Supreme Court of the Federation of BiH overemphasised the scope of protection of Article 6 of the ECHR and thereby undermined the independence of the courts.

The Constitutional Court declared the appeal admissible without going into the issue of the authorisation of the Prosecutor’s Office of the Sarajevo Canton to file an appeal. Therefore, it is obvious that the standing to sue was tacitly accepted in this case too. In so doing, the Constitutional Court indicates that it is aware of the fact that the State authorities enjoy constitutional rights and freedoms.³¹⁹⁶ However, it appears confusing when the Constitutional Court finally decides that “there can be no question of a violation [of] T. P.’s constitutional right to a fair trial under the European Convention or the Constitution” since the appeal against the judgment of the Supreme Court of the Federation was not filed by the accused but the Prosecutor’s Office.³¹⁹⁷ Finally, the decision is quite correct. The Constitutional Court has concluded that “Article 6 of the ECHR and Article II.3(e) of the BiH Constitution protect the rights of the accused and not the public prosecutor”. However, if the Constitutional Court understood it, the question arises as to why it did not reject the appeal for formal reasons, i.e., for lack of standing to sue. In examining the appeal, the Prosecutor’s Office did not refer to its own right to a fair trial but to an over extensive interpretation of Article 6 of the ECHR in the appellant’s favour. The Prosecutor’s Office therefore complained that the ordinary courts had given too much human rights protection to the accused. This is a very unusual pattern in the judicature relating to human rights. In particular, in light of the European jurisprudence on human rights, it does not correspond to the idea of protection of human rights and thus would not fall within the jurisdiction of the Constitutional Court, since the sole motive for protection of human rights is to protect individuals against violations of human rights and freedoms by the State. A contrary situation in which a State authority, through an excessive and purposeless protection of human rights, deprives an individual of the right to a fair trial, to its own detriment and to the detriment of the general welfare, under normal circumstances, is not known. Nevertheless, the Prosecutor’s Office argued that such judicial abuse of human rights served to achieve aims with no legal recognition. Therefore, it finally required the Constitutional Court to review the lawfulness of the conduct relating to the standards laid down in the Constitution. In addition to a violation of international criminal law and the independence of judiciary, the Prosecutor’s Office complained about the abuse of safeguarded human rights in criminal proceedings. In that case, the Constitutional Court was not called upon to establish, as it was in a usual situation, minimum human rights, but rather maximum human rights and to prohibit an extensive interpretation of these rights to the detriment of the general welfare. Equal treatment of all perpetrators of criminal offences and protection of the legal state could be mentioned as the general welfare in this case.

Thus “the magic placed on human rights” disappears. The appeal under Article VI.3(b) of the BiH Constitution does not correspond completely to the usual individual appeal according to the German or Strasbourg “pattern”, but it equalises with the constitutional review. The Constitutional Court reviews, under Article VI.3(b) of the BiH Constitution, the consistency with the BiH Constitution in any possible direction: formal and substantive constitutional law, general constitutional principles, protection of human rights and freedoms, but more than that, it examines the issue as to whether these rights have been violated. Such broadly conceived authorisation to file an appeal could make sense in a case in which it is not possible to find another manner (or the options are lacking) to rectify arbitrary decisions manifestly taken to the detriment of prevailing public interests. So, for example, in case of an arbitrary acquittal, there is the possibility for the relatives of the murdered person to claim that the murdered person’s right to life has been violated or that their own rights have been violated.³¹⁹⁸ However, if there is not a private appellant who has an interest in challenging the arbitrariness of the acquittal before the Constitutional Court, such a judgment would remain in force if the requirements for the reopening of criminal proceedings to the detriment of the acquitted person have not been fulfilled. However, the legal requirements for the reopening of criminal proceedings under Article 328 of the Criminal Procedure Code of BiH are strictly formulated so that they do not cover the arbitrariness of the decision-making procedure. Given such circumstances, an appeal of the Prosecutor’s Office could make sense in order to protect the general public’s trust in the functionality of the judiciary, and the legal order would not be called into question. Finally, a request to quash an unfair decision could be explained by the application of the principle of the rule of law.

In other cases the Constitutional Court rejected appeals filed by the Co-Chair of the Council of Ministers of Bosnia and Herzegovina and the Public Attorney’s Office of Bosnia and Herzegovina against two decisions of the Human Rights Chamber, but only because the State official failed to allege certain objections in the proceedings before the Human Rights Chamber.³¹⁹⁹ The issue of authorization to file an appeal was not raised. In Cases Nos. U 7/98-U 11/98, in which appeals were filed by the Co-Chairman of the Council of Ministers of Bosnia and Herzegovina and the Public Attorney’s Office of the Federation of BiH and, at a later point, in Case No. U13/01, in which the Attorney’s Office of the Sarajevo Canton filed an appeal against decisions of the Human Rights Chamber, the Constitutional Court rejected all of the appeals without dealing with the issue of lack of legal standing to file an appeal. The Constitutional Court declared itself generally incompetent to review the constitutionality of the decisions of the Human Rights Chamber.³²⁰⁰ In these decisions, the Constitutional Court did not yet clarify the authorization of the State authorities and the State itself to file an appeal under Article VI.3(b) to file appeals under Article VI.3(b) of the BiH Constitution. It may be recognised, to say the least, that the right to appeal under Article VI.3(b) cannot be limited systematically to private appellants. In a case relating to an appeal filed by the Blind Persons’ Association Lukavac against a ruling of the Cantonal Court, the Constitutional Court started from its jurisdiction to deal with the case and, thus, from the authorisation of a private-legal “association of citizens” to file an appeal, unless the brief reasoning of the Constitutional Court had to be interpreted in such a manner that the Constitutional Court did not deal at all with the issue of the appellant’s standing to sue.³²⁰¹

The Decision in Case No. AP 39/03 finally clarified the situation so that the Constitutional Court gave the State, other administrative-territorial units, State authorities and entities of public law the authorization to file appeals under Article VI.3(b) of the BiH Constitution. The Constitutional Court gave reasons for this extension of the standing to sue by stating that the linguistic meaning of the BiH Constitution did not exclude the aforementioned entities, which was the reason why the constitutional protection must go beyond the protection provided for by the ECHR system. If the Constitutional Court had not made it possible for the State authorities to file an appeal, this would have constituted a reduction in its appellate jurisdiction provided for by Article VI.3(b) of the BiH Constitution. The State authorities are parties to a number of judicial proceedings so that Article VI.3(b) entitles them to file appeals with the Constitutional Court, since the said Article of the Constitution in no way distributes constitutional rights according to the nature of the parties to the proceedings.³²⁰² Consequently, access to the Constitutional Court within the meaning of Article VI.3(b) of the BiH Constitution is secured to the State and other administrative-territorial units, State authorities and entities of public law.³²⁰³

Such an interpretation of Article VI.3(b) of the BiH Constitution should be given support. Unlike Article 93.I, item 4 of the Basic Law and Article 90.I of the Law on the Federal Constitutional Court, Article VI.3(b) of the BiH Constitution does not require an allegation of a violation of human rights and freedoms to be made, but it deals with “constitutional issues”. Therefore, it is not about the question of whether human rights have been violated, nor is it a question about the standing to sue in this respect. Limitations on the authorisation to file appeals, which the Constitutional Court has developed with regards to human rights, are therefore not indispensable in terms of the BiH Constitution. An objective consideration of the linguistic meaning of Article VI.3(b) of the BiH Constitution leads to the conclusion that the Constitutional Court is not competent to decide all legal constitutional issues only if the proceedings are initiated by private physical persons and legal persons but also if the proceedings are initiated by other persons regardless of whether they have a legal public character.

Taking this as a starting point, it remains to examine whether there are other circumstances, if not by the linguistic meaning of Article VI.3(b) of the BiH Constitution, for which this provision should be interpreted as limiting the authorisation of certain persons to file appeals. According to the teleological interpretation, those who are holders of such rights should be the only ones that can make allegations of violations of human rights and freedoms. Accordingly, physical persons may refer to all rights under the BiH Constitution and the ECHR. Legal persons may refer to those rights which belong to them by the nature of things. It is true that the BiH Constitution does not provide for any provision which is similar to Article 19.III of the Basic Law. However, the applicable content of a right derives from the nature of the right. Consequently, a legal person cannot complain of the prohibition of torture, but it can complain of a violation of property rights. There are cases where it is not easy to establish whether and to what extent a right applies to legal persons. Moreover, the question arises as to whether private persons can refer to the constitutional provisions other than those guaranteeing human rights and freedoms. It is a question of the admissibility of the case rather than a question of having the standing to file an appeal. In general, the starting point is the fact that every private person, as a part of society, is protected through the constitutional principles, such as the principle of the legal state, although the legal-subjective side of human rights and freedoms and holders of these rights do not fit into this concept. So, the Constitutional Court stayed on course in Decision No. U 42/03 when, by referring to its Decision No. U 5/02, it prohibited the State and Entities to refer to Article 10 of the ECHR.³²⁰⁴ In particular, one should make a distinction between the authorisation to make allegations (Beschwerdebefugnis) on the one hand, which means the possibility of a violation with regard to the enjoyment of a right, and on the other hand the authorisation to file an appeal (Antragsbefugnis), which means the right to have a violation of the BiH Constitution established by the Constitutional Court. Taking this into account, the State authorities may not refer to human rights before the Constitutional Court, but they may make allegations of violations of other constitutional provisions, i.e., they may, for example, make allegations of the violation of the BiH Constitution by a court decision. The above described case in which the Prosecutor’s Office complained of excessive protection of human rights before the criminal court to the detriment of the legal state and the general interest in criminal prosecution can be mentioned in support of such a conclusion.

Moreover, a systemic limitation on the authorisation to file an appeal with the Constitutional Court may derive from Article VI.3(b) of the BiH Constitution. The State authorities and their parts which may initiate proceedings of abstract control (review) of constitutionality, federal disputes and disputes between the State authorities under Article VI.3(a) of the BiH Constitution, should not be allowed, based on Article VI.3(b), to avoid fulfilling the requirements of Article VI.3(a) of the BiH Constitution. The same applies when it comes to Article VI.3(c) of the BiH Constitution. This provision clearly regulates the conditions under which a court may refer a question to the Constitutional Court. In this respect, Article VI.3(a) and (c) of the BiH Constitution is a leges speciales relating to Article VI.3(b) of the BiH Constitution. Therefore, if the requirements to institute proceedings under Article VI.3(a) and (c) are fulfilled, then access to the Constitutional Court under Article VI.3(b) should not be allowed either.

Taking into account such a development of the case-law, it would make more sense to designate Article VI.3(b) as the jurisdiction over cases relating to constitutional review rather than the constitutional appeal; otherwise, an individual appeal could easily be reduced in a thoughtful manner according to the pattern of the ECHR or Basic Law of the Federal Republic of Germany, so that this provision would cover the whole scope of competences of the Constitutional Court under this provision.