ii. Standpoint of the BiH Constitutional Court

Fijuljanin also addressed the BiH Constitutional Court concerning his arrest by SFOR, but the Court rejected his appeal as inadmissible given the fact that the Chamber had already taken a decision in the same case.³⁵⁰² However, a year later a similar appeal was lodged. Subotić complained that he was arrested by SFOR and detained for six days while being denied all the rights safeguarded under the ECHR.³⁵⁰³ It was stated in the appeal that Bosnia and Herzegovina has a positive obligation to protect the appellant’s constitutional rights and freedoms that have been violated in this case. The Constitutional Court declared the appeal admissible with the argument that the mere fact that the violation, which was the subject of appeal, may be attributed to SFOR, which is operating in BiH under an international mandate and enjoying immunity, does not release the State from the obligation under Article II.1 of the BiH Constitution to provide the highest level of protection of internationally recognised human rights and freedoms.³⁵⁰⁴ Bearing in mind that the injured party had no other legal remedies at his disposal and that he was trying in vain to obtain protection from domestic authorities, the BiH Constitutional Court had to declare itself competent.³⁵⁰⁵

As to this case, the Court established that there were violations of Articles 3 and 5, paragraphs 1, 2, and 4 and Article 8 of the ECHR in the field for which Bosnia and Herzegovina is responsible and ordered the payment of compensation for damage. As to the responsibility for the conduct of SFOR which was contrary to the ECHR, it may be attributed to domestic authorities since they knew that the appellant was deprived of his liberty but they, nevertheless, took no measures to release him during the time of his detention; after his release the authorities made no attempt to seek compensation from SFOR on behalf of the injured party. After his release the authorities failed to initiate any investigation into the circumstances of the appellant’s arrest, neither did they try to urge SFOR to compensate the appellant for the sustained damage. The Constitutional Court gave the following arguments in this regard:

By referring to the Fijuljanin case, the Court presented the arguments that the appeal of Bosnia and Herzegovina, which was sent to SFOR upon the request of the Human Rights Chamber, was successful since the person deprived of liberty was immediately released.³⁵⁰⁶ The Constitutional Court acknowledges that SFOR has special authority under Annex 1-A to the GFAP and that BiH temporarily waived its sovereign rights concerning the mentioned authority. Bosnia and Herzegovina must comply with this waiver in accordance with international law. However, the Constitutional Court ascertained that this waiver of rights cannot release the State of the responsibility not to tolerate violations of the constitutional rights and freedoms of one of its citizens because those obligations have the same effect as the already described obligations of the State under international law – accordingly, those are the obligations of the State under the BiH Constitution which, itself, is an integral part of GFAP. The Constitutional Court asserts that that the waiver of the authority and its transfer to international organisations is in accordance with the ECHR provided that, under such circumstances, the rights from the ECHR are protected. A state which has waived its authority and transferred it to international organisations, i.e., a state that has no factual control over foreign forces operating in its own territory, is held responsible and it must take appropriate steps to protect victims.³⁵⁰⁷ Based on the positive obligation of the State to protect human rights and freedoms under Article 1 of the ECHR, the State is under the obligation to thoroughly examine all allegations on arbitrary arrests even in a situation where it is not possible to eventually clarify whether the violations of the rights could be attributed to the State authority or not.³⁵⁰⁸ Furthermore, the Constitutional Court asserts that the domestic authorities, based on the positive obligation under Article 1 of ECHR, were obliged to initiate an investigation in this case of unlawful deprivation of liberty although in the end it is not possible to establish whether the violation of rights could be attributed to the domestic authorities or not. The domestic authorities were obliged to initiate the investigation regardless of a small chance to achieve success in such a difficult situation and regardless of the lack of proportionality between the forces of SFOR and the domestic authorities.³⁵⁰⁹ Article 1 of the ECHR provides for an obligation of the State to act and not for an obligation to achieve success. However, the domestic authorities did absolutely nothing to investigate the case, secure the release of the detainee or make it possible for the detainee to be granted just satisfaction for the damage he sustained. Immunity of international military forces tasked with ensuring peace and security instead of domestic authorities in the country or with implementing a peace agreement does not release the respective State of its positive obligation to protect individual rights.³⁵¹⁰

With reference to a house search that was conducted in the same way, the Constitutional Court of BiH subordinated the activity of international actors to the principle of proportionality. The Constitutional Court stated that pursuant to Article 3 of the Agreement between the RBiH and NATO on the Status of NATO and its Personnel, NATO personnel having, under this Agreement, privileges and immunity, should comply with the laws of RBiH provided that it is in accordance with the assigned mandate, and not to conduct any activities which are in contravention of the nature of their mandate. The BiH criminal proceedings regulations have envisaged special proceedings for house searches. In another appeal lodged with the BiH Constitutional Court, in a case relating to SFOR, the search was conducted by SFOR with permission of the person subject to the search and in the presence of local police. As to the said case, the Constitutional Court established that the search by SFOR was necessary and justified. In the Subotić Case, the Constitutional Court concluded that the search of the house cannot be considered lawful even if Annex 1 to GFAP is taken into account in the course of the examination of the lawfulness of the search since by SFOR activities the domestic laws were also violated including the standards of international law.³⁵¹¹

Unlike the Human Rights Chamber, the Constitutional Court recognises no gaps in sovereignty. The Court makes no requests to the State to launch a political appeal to international actors. The Court holds the State responsible for their acts as soon as it fails to exert its influence when it comes to the elimination of or compensation for the violation of constitutional rights and freedoms. This practice of the Constitutional Court was confirmed thereafter.³⁵¹²