Case law of the BiH Constitutional Court: no review of the CRPC decisions

In Cases Nos. U 21/01 and U 32/01, the appeals came before the BiH Constitutional Court against the (final) decisions of the CRPC, adopted following the requests for review. In both cases the appellants complained by referring to the Law on Housing Relations. By referring to the earlier case law in the cases concerning the relationship between the Constitution of BiH and other Annexes – U 7/97 (GFAP), U 7/98 (Human Rights Chamber) and U 40/00 (Provisional Election Commission) – the BiH Constitutional Court pointed out that the Constitution of BiH was an integral part of the peace agreement. On the basis of the structure of the GFAP, the BiH Constitutional Court further claimed that there can be no contradiction among Annexes as they are all equivalent, so that the GFAP and the Constitution cannot be contradictory to one another. Moreover, there is no hierarchy among the authorities established by the Annexes to the peace agreement, rather they operate concurrently and complement one another. The Human Rights Chamber cannot be considered a court in Bosnia and Herzegovina, hence the BiH Constitutional Court is not competent to review the decisions of the Human Rights Chamber. For, the Human Rights Chamber exercises its function beyond “an ordinary judicial structure of Bosnia and Herzegovina”. In analogy to this, the same goes for the CRPC, i.e., this commission operates beyond the judicial system of Bosnia and Herzegovina. Under Article XII.7 of Annex 7, as well as under the Law on Enforcement of Decisions of the Commission for Real Property Claims of the Displaced Persons and Refugees, its decisions shall be final and binding, the BiH Constitutional Court went on to conclude.

The Court has held onto this case law even after the CRPC competencies had been transferred to the domestic authorities, without addressing that very circumstance at the initial stage.³⁴⁸³ Not even the fact that the HRC within the BiH Constitutional Court of BiH had changed its case law following the transfer of the CRPC competencies to the domestic authorities, in the sense that the HRC within the BiH Constitutional Court of BiH had declared itself competent to review the decisions adopted by the domestic authorities (“domestic” Commission referred to in Annex 7 or administrative bodies), did not result in the change of the case law of the BiH Constitutional Court. The only thing right now was that the Court felt compelled to reason in more detail why it had held onto the same case law.³⁴⁸⁴ The BiH Constitutional Court reasoned that the transfer of competencies to the domestic internal framework does not change the legal nature of the decisions of the Commission. Also the mandate of “the domestic CRPC” was laid down in Annex 7, so that it had the same constitutional and legal status. “The domestic CRPC” is neither the institution of Bosnia and Herzegovina, nor is it competent to exercise competencies, on the basis of some domestic law, that were assigned by the force of the Constitution to the state of BiH; thus, it is not integrated in the legal system of Bosnia and Herzegovina. Besides, the BiH Constitutional Court concluded that “the national CRPC” is not “a court” within the meaning of Article VI.3(b) of the Constitution of BiH, but an institution sui generis.³⁴⁸⁵