iii. Commentary

It is possible to observe that there has been a cut in both jurisprudences, i.e., two tracks: before and after the institutional transfer of Annex 7 into the domestic framework. Prior to that, both courts considered themselves incompetent to review the decisions of the CRPC. The BiH Constitutional Court reasoned, i.e., argued, without considering the characteristics of the constitutional regulations on its competence. Its central argument was, however, teleological, which the BiH Constitutional Court confirmed systematically: the purpose of setting up the CRPC, as a special body for settling ownership issues, was as a matter of fact to assign this delicate area of the peace agreement to a neutral judicial body, immune as much as possible to political and ethnic-national influences. This goal has been additionally underlined by excluding Annex 7 from the domestic constitutional framework. This type of argumentation implies at the same time that the core of this area, nevertheless, touches upon the constitutional system. The teleological argument is, therefore, possible to overcome.

The starting position for the argumentation of the Human Rights Chamber is somewhat different from that of the BiH Constitutional Court. Its approach in the reasoning is not teleological in nature. The very text containing the basis of competences of the Human Rights Chamber leaves very little space for manoeuvre. A violation of Annex 6 may be found only if the parties themselves had caused the violation of this Annex, or if the violation of this Annex can be attributed to them due to action by a third body, for instance the CRPC. However, the Human Rights Chamber did not want to attribute the operation of the CRPC to the area of responsibility of the Federation for justified reasons. According to the permanent jurisprudence of the Human Rights Chamber, operation of the international actors cannot be attributed to anyone else, nor can anyone else be charged or held responsible for it. Failure to make the necessary corrections of activities of third persons, for instance failure to amend the imposed law in order to bring it in line with the Constitution, may be possibly the basis for establishing the responsibility of the contracting parties under Annex 6. However, the Human Rights Chamber held that in this case the obligation of correction did not exist. Obligations assumed by signing Annex 7 prohibit the Federation of BiH to review the acts of the CRPC and, also, to correct them even if necessary. The CRPC Rules of Procedure are based solely on Annex 7, and – unlike the imposed laws – are not the domestic legal acts, the Human Rights Chamber asserted.³⁴⁹²

In view of the aforementioned, in the period after the CRPC was transferred into the domestic framework, that is after 1 January 2004, the jurisprudence of both courts went through changes, however their case-law took different directions. The BiH Constitutional Court still considered as relevant the teleological argumentation, and still held itself incompetent. On the other hand, the HRC within the Constitutional Court of BiH considered as crucial the fact that the activity of the (presently) “domestic” CRPC since 1 January 2004 may be attributed to the State. The equal rank of Annexes 6 and 7 and their institutions had no role whatsoever here.

The practical consequence of the change of jurisprudence of the HRC within the BiH Constitutional Court was such that all those who considered that a decision of the “domestic” CRPC was unfair got a chance to file an administrative lawsuit with the Court of Bosnia and Herzegovina, as an extra-legal instrument. The next consequence of the change of the jurisprudence of the HRC within the Constitutional Court of BiH would be a possibility for those receiving a negative verdict from the Court of Bosnia and Herzegovina (as a “court in Bosnia and Herzegovina”, within the meaning of Article VI.3(b) of the Constitution of BiH), adopted in an administrative dispute following the lawsuit against a decision of “the domestic” CRPC, to address the BiH Constitutional Court pursuant to Article VI.3(b) of the Constitution of BiH. If proven that the CRPC activity, including the Court of Bosnia and Herzegovina, in certain areas, is in contravention of the rights and freedoms guaranteed by the Constitution – even after taking into account some sort of an extraordinary situation, and even after weighing all opposing interests – the BiH Constitutional Court can, nevertheless, refer to its mandate as a guardian of the Constitution and declare as null and void even a CRPC act.

Such jurisprudence of the HRC within the BiH Constitutional Court came late. Namely, before the decision of the HRC within the BiH Constitutional Court , in Case No. CH/01/8050 (from 2005), in numerous cases, under Annex 7, legally valid decisions had already been adopted. Therefore, the only help up until that point regarding the CRPC decisions was the reasoning provided by the BiH Constitutional Court offered in the decisions Nos. U 21/01 and U 32/01. Namely, in the mentioned decisions, the BiH Constitutional Court drew the attention of all persons damaged in any way in the procedures for repossession of property – the above-mentioned – to the intertwinement of the domestic law and Annex 7, and that, for the sake of clarification of some issues that the CRPC excluded from discussion, it is possible, even necessary, for them to address the ordinary courts. Only in this way is it possible to challenge its (CRPC’s) decisions before the BiH Constitutional Court, that is before the Human Rights Chamber, i.e., the HRC within the BiH Constitutional Court.