• Standpoint of the Human Rights Chamber

In the Case Miholić et al.,³³⁸⁴ deliberation was conducted on whether the law provisions dealing with ownership rights are compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the law, the (former) members of the JNA were banned from acquiring ownership rights over apartments in the Federation of BiH.³³⁸⁵ As to the field of ownership rights that are of a highly conflicting and sensitive nature, the High Representative was often undertaking initiatives and promulgating amendments to laws, substituting for the work of the domestic legislature. In the Case Miholić et al., Article 3(a) of the Law on the Cessation of Application of the Law on Abandoned Apartments was subject to control, i.e., subject to the law provision imposed by the High Representative. In the proceedings before the Human Rights Chamber, the Federation of BiH referred to the fact – not making a big mistake – that the disputed law provision was not enacted by this authority.³³⁸⁶ Further, the Federation of BiH pointed out that in one of its earlier decisions the Human Rights Chamber declared itself incompetent ratione personae to review the decisions of the High Representative.

The Human Rights Chamber did not accept the arguments of the Federation of BiH. By relying on the judicial practice of the BiH Constitutional Court in Case No. U 9/00, the Human Rights Chamber found an essential difference between the decisions of the High Representative on removal from office on the one hand and his legislative activities on the other.³³⁸⁷ The decisions whereby the Human Rights Chamber declared itself incompetent to review the decisions of the High Representative on removal from office cannot be applied to all cases, the Human Rights Chamber stated. The Human Rights Chamber applies a substitution formula (replacement) which was used by the BiH Constitutional Court in its judicial practice but only in cases where it was concluded that a disputed law provision may be considered a law provision enacted by the Federation.³³⁸⁸ The regulation which was passed by the High Representative constitutes a change in the law and the federal legislature can amend it at any time. The fact that this regulation was published in the Official Gazette of the Federation of BiH – as it is a usual procedure for the acts of federal legislature – indicates that this regulation, both formally and substantively, has the character of an internal state act.³³⁸⁹ Unlike the aforesaid, when the High Representative removes officials from office he does not substitute any of the domestic State authorities because, except for the High Representative, none of the State authorities within the constitutional frame of Bosnia and Herzegovina, the Republika Srpska or the Federation of BiH are vested with powers to remove elected officials. Also, it must be pointed out that upon issuing a decision on removal from office or on banning the elected officials from holding public offices, the internal State authorities or electors cannot change such a decision by re- electing the removed officials. Accordingly, these decisions do not constitute a domestic law and they do not fall within the scope of the responsibilities of any of the Parties that may be sued under Annex 6. Therefore, the appeals against the said decisions are inadmissible ratione personae.³³⁹⁰