Constitutional Court

According to Article 16, paragraph 2 of the Rules of the BiH Constitutional Court, an appeal is admissible if it is not “manifestly (prima facie) ill-founded”.

As to constitutional appeals, the German Federal Constitutional Court relies on Article 93.I No. 4a of the Basic Law and Article 90.I of the Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz – BverfGG) according to which the person who files a constitutional appeal must claim that one of his/her fundamental rights has been violated (Grundrechte) or similar rights (particularly those related to the procedural guarantees). Relying on this rule, the Federal Constitutional Court has developed a hypothesis that the challenged act must be such as to affect directly and immediately the appellant’s position safeguarded by the Constitution.³¹⁰⁷ The claim concerning a violation must be sufficiently substantiated. The part relating to the description of facts must indicate a conclusion that the violation of rights might have at least taken place. All of this must be presented with a certain degree of accuracy and clarity. Therefore, the German Constitutional Court sets high standards with regard to claims about an alleged violation and its substantiation.

Likewise, one can find similar formulations in the early case-law of the Constitutional Court, which indicated that a constitutional appeal is admissible only if a violation of constitutional rights is deemed possible. In Cases Nos. U 6/98, U 2/99, U 7/99-1, and U 15/99, the Constitutional Court noted that appeals “may give rise to possible issues” under Article 6, paragraph 1 of the ECHR, or they “give rise to the issues” under Article 6, paragraph 1 of the ECHR.³¹⁰⁸ Furthermore, in Case No. U 7/99-1, the Constitutional Court noted that “it cannot be excluded that the possible violation of the aforesaid provisions has occurred on the discriminatory grounds”. In another case, the appeal was rejected without further reasoning, since the challenged decision was not in violation of the appellant’s constitutional rights.³¹⁰⁹ Occasionally, the Constitutional Court only notes that the appellant claims that his/her rights that are safeguarded by the Constitution and the ECHR have been violated and that the Constitutional Court therefore has jurisdiction over the appeal.³¹¹⁰

Article 16, paragraph 2 of the applicable Rules of the BiH Constitutional Court requires an overall examination of well-foundedness. If after the examination of the case it turns out that there is a doubt that the alleged violation of the constitutional rights has occurred, the appeal shall be rejected as inadmissible without further reasoning. This requirement for taking a decision on the merits therefore overlaps in substantive terms with the issue of ratione materiae³¹¹¹ admissibility of the appeal.

A violation of constitutional rights may only be alleged by a person who claims that his/her legal position is affected. The interference with the constitutional rights must be directed against the appellant. Allegations about the violations of constitutional rights of third persons are therefore not admissible.³¹¹² In Case No. U 2/99, the Constitutional Court concluded that the heir of the occupancy right holder which had lived in a joint household with the deceased occupancy right holder could have the legal standing to file an appeal. As the appellant was authorised to transfer the occupancy right to herself based on the relevant law, she also had a legal interest in instituting proceedings to repossess the apartment after the death of the occupancy right holder. Unlike the aforesaid case, the Constitutional Court has concluded that a group of parliamentarians were not authorised to file an appeal under Article VI.3(b) of the BiH Constitution in order to provide protection for a third person.³¹¹³ The fact that the aforesaid group was authorised to file a request under Article VI.3(a) of the BiH Constitution was irrelevant insofar are the legal standing to file an appeal was concerned.