ii. Standpoint of the Human Rights Chamber, i.e., of the HRC within the BiH Constitutional Court of BiH

In the appellate proceeding V. J. (CH/01/7728-A&M), unlike the previous procedures which concerned solely the enforcement of the CRPC decisions by the domestic authorities, the Human Rights Chamber had to, for the first time, tackle the issue of whether the Federation of BiH might be held accountable over the deficiencies in procedures before the CRPC. These appeals brought the Human Rights Chamber into a great dilemma. In essence, it was undisputed that the procedure before the CRPC – given the effect of the CRPC’s enforcement decisions – did not meet the standards required by the right to a fair trial. The procedure did not contain any guarantees whatsoever, as any other dispute, which would allow the actual possessor (the one holding the disputed property) to challenge the repossession of the right of the old possessor for instance, by communicating that there was a contract on exchange of real property. The actual possessor is therefore only instructed to submit a complaint in the course of the enforcement procedure conducted by the domestic administrative body. In addition, we have to mention the fact that the CRPC’s enforcement decisions are impossible to challenge before the domestic State bodies or courts. Thus, the damaged person, wishing to challenge the CRPC’s decisions, had no possibility to address an impartial tribunal.

According to the standpoint of the Human Rights Chamber, this deficiency nonetheless cannot be counted as a responsibility of the contracting parties referred to in Annex 6. Thus the competence of the Human Rights Chamber for establishing a violation of Article 6 of the ECHR is not well-founded. In this reasoning the Human Rights Chamber elaborates on its permanent jurisprudence regarding the issue of responsibility of the contracting parties referred to in Annex 6 concerning the acts of the international bodies enacted pursuant to other annexes to the GFAP. The Human Rights Chamber stated that it is ratione personae competent solely for the appeals lodged against one of the three public and legal entities which, under Annex 6, may have the standing to be sued. The permission alone for engagement of certain international organisations (SFOR, OSCE, OHR etc.), as well as the delegation of powers to these organisations, which are necessary for their respective mandate, cannot establish the responsibility of the parties referred to in Annex 6.³⁴⁸⁶ The Human Rights Chamber further asserted that the responsibility for the operation of the CRPC, in any case, cannot be deduced from the fact that the Federation of BiH appoints four commissioners to the CRPC and contributes to the CRPC budget since the mentioned obligations arise directly from Articles IX.1 and X.2 of Annex 7.³⁴⁸⁷ Under Article XV of Annex 7, the CRPC is authorised to regulate on its own procedures for its operation and, while doing so, to hold onto all prerogatives for decision-making. According to the provisions of Annex 7, the Federation of BiH has no influence whatsoever on it.³⁴⁸⁸ The Federation of BiH enacted legal provisions for the enforcement of CRPC decisions, thereby fulfilling its obligations referred to in Annex 7. Still, under Annex 7, the Federation of BiH was not allowed to provide for any possibility for the decisions of the CRPC to be reviewed by some domestic body.³⁴⁸⁹ The sole obligation is that the Federation of BiH has is to enforce the CRPC’s decisions. It has no right or obligation to question the lawfulness of these decisions, the Human Rights Chamber concluded.

Following the transfer of the CRPC’s competencies to the BiH institutions, the HRC within the Constitutional Court of BiH altered its jurisprudence in the following way: Bosnia and Herzegovina is now obliged to organise the implementation of Annex 7, and to undertake all necessary measures in order to do so. That implies the appointment of members of the Commission, the funding of the Commission, as well as the creation of the legal basis for its operation within the domestic legal framework.³⁴⁹⁰ The HRC within the BiH Constitutional Court, thus, declared itself competent for the review of decisions of the CRPC, and thereby, for instance, in the Case No. CH/01/8050, it established that the applicant’s right of access to court was violated, since the national Commission (which took over the competence of the CRPC) is not an independent institution under Article 6 of the ECHR. Therefore, according to the standpoint of the HRC within the BiH Constitutional Court, it is necessary to provide a legal instrument, i.e., the legal path to some court within BiH in order to review the decisions of the domestic Commission.³⁴⁹¹