iii. Commentary
This drifting in judicial practice may be viewed in the context of fierce debates being conducted during the years when the mentioned decisions were adopted in respect of the destiny of the allegedly unjustifiably decertified police officers. Political insecurity was reflected in the legal assessment of the highest courts when it comes to the legal basis for the mentioned cases. As to the possibility for the courts to review the acts of international factors (in particular the acts of OHR and SFOR), a change occurred both in the jurisprudence of the Chamber in the Džaferovic Case (the applications were first declared as being incompatible ratione personae with Annex 6 and then this practice changed) and in the jurisprudence of the BiH Constitutional Court. As to the question of whether there will be a certain level of consolidation in the judicial practice within the frame of Annex 11 (and, generally, in relation to the whole context of GFAP), we will probably obtain the answer in the future.
The Venice Commission and the Council of Europe Commissioner for Human Rights3527 evaluated the decertification procedure as dissatisfactory. Referring to the jurisprudence of the Human Rights Commission within the BiH Constitutional Court and to its own standpoints, the Venice Commission based its opinion of 24 October 20053528 on the fact that Bosnia and Herzegovina cannot be held responsible for violations of the ECHR in the decertification procedure. However, all persons that suffered damage should be provided with equal mechanisms of protection and in this case this responsibility lies with the IPTF and the UN as founder of the IPTF.3529 Although a new organisation of the police force was necessary for the purpose of country’s stabilisation and although significant difficulties occurred in connection with this organisation, it is impossible to foresee why the injured parties were denied a fair trial.3530 In this opinion it is further stated:
“It must be underlined that in this respect, the UN-IPTF has carried out tasks which are certainly more similar to those of a State administration than those of an international organisation proper. It is inconceivable and incompatible with the principles of democracy, the rule of law and respect for human rights that it could act or have acted as a State authority and at the same time be exempted from any independent legal review (reference is made to Article II.5 of Annex 11 to the GFAP3531). In the Venice Commission’s opinion, transparency and accountability of transitional territorial administration by international organisations are an extremely important element of their credibility and authority. Peace and security cannot but be fostered by transparent and fair proceedings”.3532
In view of the fact that according to the opinion of the Venice Commission the domestic courts are definitely not competent to review the disputed decertification decisions, it would be appropriate for the UN to undertake the review of 150 decertification decisions, which were challenged before the domestic courts. For instance, this task could be carried out in a way that the UN Security Council establishes a special judicial body/tribunal consisting of independent experts.3533 The Council of Europe Commission agreed with the opinion of the Venice Commission and pointed to further alternatives of possible solutions.3534
After many years of political struggles between Jean-Marie Guéhenna, the Under-Secretary-General for Peacekeeping Operations, and the Office of the High Representative,3535 on 30 April 2007, 793 police officers were finally granted permission, based on the informal position of the UN Security Council (which was taken at the time when Great Britain was presiding), to seek reinstatement to their former positions provided that the re-employment was possible in accordance with the new laws regulating the police profession. Inasmuch as the UN Security Council excluded the possibility for annulment of the IPTF decertification decisions or their subsequent review, it has also failed to admit that a wrong decision might have been made. The solution which was accepted at that time gave no chance to injured parties to be rehabilitated or for their ruined dignity and reputation to be regained through the process of review of each individual decision, and it creates a problem that the status quo ante is hardly to be achieved again.3536 Therefore, the content of the decisions was not brought into question and the Security Council limited itself to issuing an incomplete and informal declaration on abolishing the ban preventing injured parties from serving as police officers for life being imposed along with a decision on decertification.
Footnotes
Report of the CoE Commissioner for Human Rights on the Issue of Decertification of Police Officers, CommDH(2007)2, Strasbourg, 17 January 2007.
Opinion, European Commission for Democracy through Law (Venice Commission), Opinion no. 326/2004 on a possible Solution to the Issue of Decertification of Police Officers in BiH, CDL-AD(2005)024.
Ibid., paragraph 20 et seq.
Ibid., paragraph 47 et seq.
Article II.5 of Annex 11 to the GFAP: “The IPTF shall at all times act in accordance with internationally recognized standards and with respect for internationally recognized human rights and fundamental freedoms, and shall respect, consistent with the IPTF’s responsibilities, the laws and customs of the host country.”
Translation by authors.
Opinion, the European Commission for Democracy through Law (the Venice Commission), Opinion no. 326/2004 on a possible Solution to the Issue of Decertification of Police Officers in BiH, CDL-AD(2005)024, paragraph 53 et seq.
See the Report about the Special Mission of the European Council Commissioner for Human Rights with regards to the issue of decertified police officers, CommDH(2007)2, Strasbourg, 17 January.2007, paragraph 43 et seq.
Compare the documentation of ESI, Picture Story, On Mount Olympus, from February 2007, available at: <www.esiweb.org>.
Compare, ESI, Turning point on Mount Olympus of 16 May 2007, <www.esiweb. org>. There you can also find the letter of the British Chair to the UN Security Council sent to the BiH Permanent Representative to the United Nation; authors’ archive. scope of their activity on the other. The legal acts of the mentioned institutions should build up their activity within domestic law and consequently, depending on specific regulations, they should exert their influence on the constitutional order, too. That takes place at different levels. Thus, the High Representative, while substituting for domestic authorities, imposes laws in the form of “decisions”. He also removes leading and elected politicians from office and, while doing so, he places himself above the existing domestic procedures or procedural guarantees. The Human Rights Chamber supplements the work of the Constitutional Court in the field of the appellate jurisdiction as to establishing cases of violations of human rights and freedoms in which case victims of violations should be subsequently compensated by the competent domestic authorities. The Interim Election Commission is tasked with passing the election rules which are applicable as domestic law until the time these rules are passed by the domestic legislator. The Sub-Commission, which is subordinated to the Election Commission, is in charge of processing the complaints against the election procedure and, thus, it operates on behalf of the future permanent election commission and temporarily replaces the legal remedy which should be based on domestic law. The CRPC gives opinions on the legal status of real properties and cooperates with domestic state authorities, which are obliged to comply with the CRPC decisions to an unlimited degree. SFOR and IPTF are in charge of military security, i.e., are in charge of law enforcement activities relating to the maintenance of public peace and order. These institutions also assist the domestic authorities in the process of the implementation of laws and in the process of building functional institutions.