iii. Case-law in respect of certain legal remedies

A final decision represents a response to the last legal remedy used which is effective and adequate to examine a lower instance decision both on a point of fact and law. Taking this into account, it is up to the appellant whether he/she will use a legal remedy regardless of whether it is an ordinary or extraordinary legal remedy. Taking this as a starting point, the Constitutional Court declared certain legal remedies absolutely inefficient, i.e., ineffective. These legal remedies do not have to be exhausted before the appellant’s appeal.

The first group includes the legal remedies whose pursuance does not depend on the appellant but on a third person such as a prosecutor. As to most of these legal remedies, the appellant has the right to initiate, not a discretionary right. However, if a third person that has the right of action pursues a legal remedy, and the competent authority/court grants it and opens proceedings, the legal remedy is considered effective. The appellant bears the “risk” of success of that legal remedy. Therefore, if a legal remedy is rejected, and the proceedings are not opened, the use of that legal remedy does not prevent the 60-day time limit from running according to Article 16, paragraph 1 of the applicable Rules of the BiH Constitutional Court. Delivery of a previous decision is taken as a starting point from which to count the time limit. A request for legal protection provided for by the Law on Civil Procedures is first of all included in this category of legal remedies.³⁰¹⁹

As a rule, the legal remedies aimed at the re-opening of proceedings terminated by a final and binding decision are also included in the category of ineffective legal remedies. Similarly to the first group, this group also implies a “risk” borne by the appellant. If the legal remedy is declared inadmissible, the pursuance of that legal remedy and delivery of that decision by the competent authority does not stop the 60-day time limit from running. A request for restitution of a previous state provided for by the Law on Civil Procedure³⁰²⁰ and a request for renewal of proceedings provided for by the Civil Procedure Code and Criminal Procedure Code³⁰²¹ are included in this category of legal remedies. An exception to this rule is a request for the reopening of criminal proceedings by the person convicted in absentia.³⁰²²

The third group of legal remedies includes “typical” extraordinary legal remedies such as a request for an extraordinary review of a court decision provided for by the Law on Administrative Procedure,³⁰²³ or extraordinary review of a final and legally binding judgment provided for by the Criminal Procedure Code.³⁰²⁴ This group is an exception to the rule from Decision No. U 15/01, according to which it is not relevant whether the used remedy is ordinary or extraordinary, but whether the legal remedy used is capable of redressing a violation or not.

As to the legal remedies under the Civil Procedure Code, the revision-appeal has a special place. Despite its label of “extraordinary legal remedy”, the revision-appeal is in principle considered an effective legal remedy, but only if the appellant fulfils the requirements to file a revision-appeal as stipulated by the law.³⁰²⁵ If the revision-appeal is not admissible in a particular case, the address to the Constitutional Court is nevertheless possible without filing a revision-appeal, as is the case with property disputes in which the value is not determined or in which the value does not exceed the amount provided for by law.³⁰²⁶ The issue of admissibility of the revision-appeal may be relevant to the issue of a violation of the right of access to a court within the meaning of Article 6 of the ECHR.³⁰²⁷

The next group of legal remedies which cannot be considered effective includes the remedies with regard to which the competent authorities, i.e., the courts, have discretion to decide on their admissibility, as is the case with the revision- appeal under Article 237, paragraph 3 of the Law on Civil Procedures of the Federation of BiH and Republika Srpska. This provision in principle allows the competent court to declare an inadmissible revision-appeal admissible if “the court holds that a decision on the revision-appeal is to be relevant to the application of the relevant legal provisions in other cases”. As the decision of admissibility of the revision-appeal, including a decision on the effectiveness of this legal remedy, finally depends on the assessment of the revision-appeal court, the Constitutional Court considers the revision-appeal under Article 237, paragraph 3 of the Civil Procedure Code of the Entities as an ineffective legal remedy which does not have to be exhausted. If the appellant “takes his chance” provided for by Article 237, paragraph 3 of the Civil Procedure Code of the Federation of BiH and Republika Srpska, and the revision-appeal is granted, the time limit to file an appeal with the Constitutional Court will start running on the date of delivery of the decision on the revision-appeal. This was never an issue. However, if the revision-appeal is rejected as inadmissible, the appellant must take account of the fact that the time limit to file an appeal before the Constitutional Court starts running on the date of delivery of the decision challenged by the revision-appeal. In order not to fail to comply with the prescribed time limit to file an appeal while waiting for a decision on the revision-appeal (to prove as an ineffective legal remedy), the appellant is to file, along with a revision-appeal, an appeal with the Constitutional Court within a time limit of 60 days from the date of delivery of the decision having been challenged by a revision-appeal. In case the Constitutional Court decides to examine the appeal pending the proceedings on the revision-appeal, the Constitutional Court shall, given the fact that the competent court’s decision on the revision-appeal is not to be prejudged, reject the appeal as “premature”. However, the Constitutional Court shall state in the reasoning of its decision that the appellant, in any case, is entitled to file a new appeal within a time limit of 60 days from the date of delivery of the decision on the revision-appeal regardless of whether the revision-appeal will be rejected or dismissed.³⁰²⁸ After delivery of a decision on the revision-appeal (unfavourable for the appellant), the appellant is to file a new appeal which shall, in strictly formal terms, be considered as a request for review of the initially adopted decision which the Constitutional Court took in respect of the admissibility of the appeal (whereby the initial appeal was declared premature) in accordance with Article 70 of the Rules of the BiH Constitutional Court. The Constitutional Court shall grant this request, since the decision on the revision-appeal shall be treated as “new legal circumstances”, it shall quash the initially adopted decision and shall take a new decision on the merits of the case. This extremely complicated “legal gymnastics” does not enhance legal certainty. In order for the appellant to rely on and place trust in certain legal remedies (Zurechenbarkeit), the latter should be declared either effective or ineffective, and certainly not conditionally effective. At any rate, such practice of the Constitutional Court does not correspond to the practice of the European Court according to which the legal remedy in such a situation would be declared ineffective due to its questionable effectiveness.³⁰²⁹ Accordingly, the revision-appeal provided for by Article 237, paragraph 3 of the Civil Procedure Codes of the Federation of BiH and Republika Srpska should be considered an ineffective legal remedy, which is the reason why an appeal should be filed against the previous decision. If the appellant, in addition to the appeal with the Constitutional Court, files a revision-appeal and if the revision-appeal is rejected or dismissed in a decision on the revision-appeal, that decision cannot affect the proceedings conducted before the Constitutional Court in respect of the appeal, since the final appellant’s legal situation remains unchanged. In such a case where the outcome of the revision-appeal is favourable for the appellant, then the appeal does not make sense any more, since the appeal renders ineffective the legal situation challenged by the revision-appeal. This fact could be treated as “changed legal circumstances” within the meaning of Article 16, paragraph 8 of the Rules of the BiH Constitutional Court, on which grounds the appeal could be declared inadmissible.

Effective legal remedies – and thereby considered mandatory in terms of their exhaustion, according to the practice of the Constitutional Court – are, inter alia, as follows:

■ Civil action against an employer for social security contributions-related debt;³⁰³⁰

■ Action against SFOR for violation of the right to freedom and security under Article 5 of the ECHR;³⁰³¹

■ Plea for immunity from criminal prosecution;³⁰³²

■ Request for judicial protection in minor offence proceedings;³⁰³³

■ Appeal against the judgment of the Entities’ Constitutional Courts;³⁰³⁴

■ Action for the establishment of legal standing to be sued in the enforcement procedure;³⁰³⁵

■ Complaint with the Commission for Implementation of Article 143 of the Labour Law of the Federation of Bosnia and Herzegovina for unreasonable length of the proceedings;³⁰³⁶

■ Complaint with an employer within a time limit of 15 days after delivery of the decision to terminate employment relations or awareness of a violation of the rights under an employment contract.³⁰³⁷ Exception: in the event that the employer places the employee on layoff status without serving a related-layoff decision on the employee, such a state is regarded as unlawful and the time limit does stop running as long as it lasts;³⁰³⁸

■ Detainee’s complaint with the prison warden for prison conditions;³⁰³⁹

■ Appeal against a new judgment in the proceedings in which the Constitutional Court already quashed the challenged judgment and referred the case back for new proceedings and decision.³⁰⁴⁰