ii. Respondent party in the proceedings before the Chamber (standing to be sued)

Article VIII.1, in conjunction with Article II.2 of Annex 6, is precise when it comes to the scope of possible respondent parties in the procedure before the Chamber: Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska. All other respondent parties, such as other States,³²³² legal-private entities³²³³ or a lawyer of the party to the proceedings,³²³⁴ cannot be ratione personae responsible for human rights violations. Furthermore, all applications filed against other entities, besides those from Annex 6, such as certain holders of power, authorities or parties, cantons and municipalities, and individuals acting on behalf of certain authorities, are inadmissible.³²³⁵ Admittedly, the Chamber does not consider itself bound by the designation of a respondent party in an application because it is difficult for the applicant to determine which signatory party is to be held responsible for the alleged violations of human rights and freedoms. In that case, the Chamber examines propio motu whether a signatory party which is not marked as respondent party in the application can be held responsible for human rights violations, includes it in the proceedings³²³⁶ and finds a violation within the scope of responsibility of that party.³²³⁷ In order to establish the responsibility of one of the parties, it is necessary to examine distribution of responsibilities between the responsible parties under the BiH Constitution; this issue falling within the scope of “admissibility” may, in such cases, be considered under the part of the decision relating to the “merits”.³²³⁸ The responsibility of the signatory Parties to Annex 6 may derive both from de iure competence under the BiH Constitution and de facto competence, for example, when acts of a responsible party produce effects outside its own boundaries.³²³⁹

It was more difficult to establish the responsibility of certain signatory Parties to Annex 6 in the applications filed against real actions (Realakte) or legal acts in the issuance of which an international organisation participated. The applications which were filed against the actions of international organisations and which had more or less the authorisation to intervene in the legal system of the State will be elaborated on in a special chapter of this work.³²⁴⁰ The grey- zone of responsibilities included applications which primarily related to the national authorities’ acts adopted on the basis of recommendations, motivations or pressure from the International Community such as, for example, the dismissal of police officers who were decertified by the IPTF;³²⁴¹ deprivation of high-ranking military officers’ right to run for elections by the national Election Commission with the reasons that SFOR removed them from their positions, i.e., revoked their mandate;³²⁴² or if the case related to the application of laws which the High Representative promulgated.³²⁴³ In such cases, the Chamber established the responsibility of the signatory Parties to Annex 6 and declared the applications admissible. The responsibility of the FBiH to construct a combat training centre on the applicants’ private property without previous expropriation of that property cannot be avoided solely because of the fact that consent by the SFOR was necessary for the construction of the centre, and besides that SFOR and other international organisations had an advisory role in that process.³²⁴⁴

The signatory Parties to Annex 6 are held responsible for business actions taken by the public companies. A public company is a company over which the State, i.e., Entities, including lower instance administrative authorities, have direct influence in terms of business administration and management.³²⁴⁵ The same applies to public institutions such as public hospitals³²⁴⁶ or schools, particularly if the public holder of duties and responsibilities has a possibility of having influence on the settlement of disputes.³²⁴⁷ Otherwise, the signatory Parties of Annex 6 are not held responsible for the actions of legal persons of private law³²⁴⁸ if they perform duties required through an order.³²⁴⁹

The Federation of BiH is responsible for acts issued by the cantons and municipalities.³²⁵⁰ The Entities are responsible for human rights violations which occurred due to the application of the laws of the RBiH, which are still in force in that Entity, since they have responsibility for this matter according to the distribution of responsibilities under the BiH Constitution. This applies regardless of the fact that the Entities did not enact new laws, or that they did not uphold them through their parliamentary procedures.³²⁵¹ Similarly, Bosnia and Herzegovina is responsible for decrees issued by the institutions of the RBiH at the transition stage, which means at the moment when the institutions acted in the capacity of authorities.³²⁵² In the Chamber’s view, this conclusion applies even if meanwhile new institutions are established (BiH), which, according to a new distribution of responsibilities, do not have legislative or executive power any more, although the decree is still in force.³²⁵³ It is hard to justify such a far-reaching responsibility, all the more so since the Chamber accepts that the legal matter in question, within new arrangements under the BiH Constitution, can be included in the field of organisation of the Entities, which is the reason why only the RS and the FBiH have the authorisation to undertake legislative and administration activities in terms of regulating and implementing laws.³²⁵⁴

The conclusion relating to the “subsequent effects” of the laws passed from the time of RBiH until Dayton, which could be attributed to Bosnia and Herzegovina, is not convincing. Admittedly, these laws have been, according to Article II.2 of Annex II to the BiH Constitution, continuously applied. Meanwhile, as of the entry into force of the BiH Constitution, the Entities became responsible for the abolishment and modification of laws. It is a contradictory point if BiH is held responsible for the legal situation but it has no more influence to change that situation. Similarly, Decision No. CH/97/48 et al. becomes questionable for the same reasons. In that Decision, which relates to the so-called old foreign currency cases, the Chamber found that Bosnia and Herzegovina was to be held responsible based on an “implicit provision” that the State takes positive actions due to a legal vacuum created by the adoption of the RBiH acts which could be attributed to Bosnia and Herzegovina. Bosnia and Herzegovina should have tried to resolve the problem of “old foreign currency savings” by passing a framework law. However, the Chamber finally ordered the FBiH, not the State, to take actions in order to improve the legal situation.³²⁵⁵ This case-law changed at a later point so that based on the distribution of responsibilities, the State was exclusively held responsible for the resolution of the problem of “old foreign currency savings”, which had the discretion to transfer certain duties to the Entities.³²⁵⁶

As to the Brčko District, which has been under the control of Bosnia and Herzegovina as of the Arbitration Decision taken in March 2000,³²⁵⁷ the Chamber held that the State (Bosnia and Herzegovina) was responsible for the activities of its authorities only as of the moment when the institutions of the District, including Bosnia and Herzegovina, as legal successors of the Republika Srpska,³²⁵⁸ overtook de facto control over certain areas. Until that moment, human rights violations had been attributed to the Republika Srpska. This also applied to the proceedings initiated at an earlier point but finalised after the control was de facto taken, but only in the case of allegations that a right to a fair trial within a reasonable time was violated.³²⁵⁹

Taking into account that the Chamber was not a signatory Party to the Agreement on Human Rights, the signatory Parties to Annex 6 cannot be held responsible for the activities and decisions of the Chamber so that such applications were incompatible ratione personae with Annex 6.³²⁶⁰