iii. Commentary

As far as the acts that the bodies referred to in Annex 3 had enacted, the Human Rights Chamber, in its decision, was able to rely on a practical and usable manner of differentiating in these cases – violations of rights and freedoms by the contracting parties referred to in Annex 6 as a basic criterion. Efforts that the BiH Constitutional Court had to invest in the reasoning were much greater. In the Case No. U 40/00, more clearly than in previous decisions, the Court expressed the idea of protection which is, as a matter of fact, the basis for division of tasks referred to in the Dayton Agreement which hit the very core of the problem regarding competences. Special international or partly international institutions with a provisional or long-term mandate for restoration and preservation of peace had been created in Dayton, the Court stated. Still, the use of this argument was again unfortunately chosen in defining characteristics of “the institutions of Bosnia and Herzegovina” (Article VI.3(a) of the Constitution of BiH). Namely, the BiH Constitutional Court holds that the Provisional Election Commission, precisely because of internationalisation, is not a domestic institution. However, should Article VI.3(a) be completely and correctly interpreted, then it is not relevant whatsoever for the abstract control of constitutionality whether some international institution is taking part or not.³⁴⁷⁰ Perhaps here one could espouse a view that, taking into account examples stated in Article VI.3(a), the BiH Constitutional Court may review only the internal domestic legal acts. However, not even such an interpretation could bring about a definitively applicable result, for we could designate as an internal domestic legal act also such acts which, admittedly, had been enacted by an international body, but which must be applied by the domestic authorities. Perhaps the argument that the review of the Election Rules was out of the question was too bold, as the contracting parties, under Article III.1 of Annex 3, are obliged to comply with the Election Rules, any internal laws and regulations notwithstanding. For, if we come to analyse this sentence in more detail, then the parties referred to in Annex 3, admittedly, must not refer to the domestic ordinary law which would be contrary to this Annex (“laws” = zakoni). However, by using argumentation a contrario, that would be possible for high ranking law, such as, for instance, the constitution. Perhaps in that manner, nevertheless, the force of the linguistic meaning of this provision, that it is necessary to respect the matters explicitly stated in the text, is slightly being disturbed, especially if we bear in mind the circumstances under which this agreement came into being.

Eventually, the BiH Constitutional Court did not even have to adopt a decision on whether it is competent to review decisions of the Sub-Commission, because the appellant, prior to addressing the BiH Constitutional Court, addressed the Human Rights Chamber. The application of such a practice, particularly in this case, is nevertheless questionable, since it was not possible to obtain legal protection before the Human Rights Chamber. Namely, in the cases Nos. CH/98/230 and CH/98/231, the Human Rights Chamber had already declared itself incompetent to review whether the decisions of the Sub-Commission were in accordance with the ECHR. If one bears in mind the existing case law of the BiH Constitutional Court in decisions regarding the issues of the High Representative, and the case law of the Human Rights Chamber and, in particular, of the Provisional Election Commission, it would certainly be difficult to find the basis for the competence regarding the assessment of decisions of the Sub-Commission. However, argumentation had to exceed the formal and legal scope. As far as the legal practice related to the issue of Annex 3, it would suffice to point to a fundamentally different character of the Human Rights Chamber and the Sub-Commission. While the Human Rights Chamber is an independent juridical body, the Sub-Commission is subordinated to the Provisional Election Commission. Because of its composition, its authority does not come even close to the authority enjoyed by the latter. Besides, the decisions of the Sub-Commission were being quashed in practice by the Head of the OSCE Mission, in the capacity of the Chairman of the Provisional Election Commission (Article III.3 of Annex 3). Accordingly, the Sub-Commission, for instance, by its decision of 15 September 1997 (ME-156), banned the Serbian Democratic Party from participating in the local elections in Pale, thereby providing a reasoning that Radovan Karadžić still had a certain function in the Pale branch office of the respective party, despite the fact that an indictment was issued against him before the Hague tribunal.³⁴⁷¹ In such cases, the OSCE Mission in BiH used a certain political manoeuvring space for its own assessment, i.e., for a certain autonomy in assessing the colliding interests as well as in deciding on the existence of prerequisites for the first free and fair elections. While, on one hand, the intention was to ensure compliance with the high substantive and legal election standards, on the other hand, the aspiration was to avoid the risk and not to provoke any sort of unrest which would jeopardise the already unstable peace. Accordingly, what was manifested here was the dilemma between strict observance of justified and legitimate standards, on one hand, and at times, a painful compromise with the purpose of a much-needed preservation of a peaceful situation, on the other hand. When it comes to the question of whether the acts enacted under Annex 3 may be reviewed by the BiH Constitutional Court, it means the following: unlike in the case of the Human Rights Chamber, the protection from the decisions of the Sub-Commission – which is not independent – that is from decisions of the Provisional Election Commission – which has a political character – was, in principle, nonetheless, necessary. However, bearing in mind political flexibility, which was necessary for a successful strategy of peace building within the scope of elections, had it accepted the competence, the Court would have stepped onto a very difficult area in legal terms. Staying out of Annex 3, and thereby granting sovereignty to the OSCE, should have secured a manoeuvring space in this area. Ultimately, the most elegant solution here would be a sort of “a Solange decision” from the German case law.³⁴⁷² That solution would look as follows: for as long as the Sub-Commission is able to protect the human rights and freedoms related to elections, the BiH Constitutional Court would waive its competence for the review of its decisions. Should the Commission fail to protect the absolutely tiniest standard in that area, that would no longer constitute a part of the permanent strategy of peace building and, therefore, would require that correction be made by the BiH Constitutional Court.