• Standpoint of the BiH Constitutional Court

As to proceedings regarding the request No. U 37/01, it was proved for the first time that the substitution formula has its weak points. Until then the idea of substitution, i.e., the idea of acting in the stead of domestic State authorities, as a basis for jurisdiction of the BiH Constitutional Court, was not raising any issues since the High Representative was mainly acting in the way in which some other domestic State authority has acted or could have acted. Thus, his activities could be viewed as some sort of substitute measures. As long as a substitute authority acts within the scope of its jurisdictions and in compliance with the authorisations of the body it substitutes for such activities, it shall not be questionable either in constitutional or in legal terms. However, in Case No. U 37-01, it was not quite clear for whom the High Representative substituted. Similar to other decisions on removal from office, on 23 February 2001, the High Representative issued a decision:

“to remove Mr. Edhem Bičakčić from his position as a General Manager of the company ‘Elektroprivreda’, and to bar him from holding any official, elective or appointive public office unless or until such time as I may, by further Decision, expressly authorise him to hold the same.

“This Decision has immediate effect and will not require any further procedural steps. Mr. Bičakčić must vacate his office immediately. “³³⁹¹

It means that Bičakčić was not only removed from office but he was also barred from performing any public duty to which he could be elected or appointed, unless the High Representative issues another decision and explicitly allows him to do so. In the reasons for the said decision it is stated that while in office as Prime Minister of the Federation of BiH – that is the office he was holding before he took over the position from which he was removed, Mr. Bičakčić abused his official authority³³⁹² and thereby seriously obstructed not only the internal political goals but also the implementation of the peace agreement. In doing so, as stated in the reasoning, Bičakčić formed the Federation Employment Agency and permitted the diversion of employment funds for unauthorised purposes; he illegally authorised the transfer of 825.000 KM (=DM) from the Federation budget to a private association; he improperly established a bank account in the name of the Federation Government and used that account to fund activities at his sole discretion and without accountability or transparency – he was making financial transactions as per his personal judgment and without being obliged to report to anyone; he also illegally ordered Customs to waive charges brought against customs evaders who, in a regular procedure, would be ordered to pay fines. However, he ordered that tax evaders should be repaid the customs duties and other charges. In fact, such kind of activities constitute illegal acts such as abuse of the prime minister’s office, the use of public funds for illegal purposes (finally, in favour of the SDA party, of which he is a member), undermining the democratically legitimized institutions and causing damage to democratic processes, including the damage caused to the Radio and TV stations. Although no objections were made as to the possible illegal conduct of Bičakčić in his new position, the High Representative considered that it was necessary to remove him from office; otherwise, the necessary principles of the “transparency and lawfulness of public life” would be undermined, including the peace process itself.

In the appeals which were lodged by Bičakčić and 37 delegates of the Federation of BiH House of Peoples almost at the same time and which were similarly worded, an effort was made for the first time to examine another area of activity of the High Representative – removal of holders of public functions who were obstructing essential processes from the aspect of constitutionality.

In appeals dated 23 February 2001³³⁹³ Bičakčić describes himself – and other people have also described him in a similar manner – as an exemplary politician working on the implementation of the peace agreement. (Indeed, the international community, despite occasional doubts, was willingly cooperating with the former prime minister). The appellants alleged that the High Representative was not acting on a legal basis since neither in Articles V and II.1(d) of Annex 10, nor in paragraph XI.2 of the Bonn PIC

Declaration could the basis for his actions be found. His powers to interpret Annex 10 do not extend to legislative, executive or judiciary measures. Moreover, the Bonn powers apply to public officials only and this excludes his public office as General Manager of “Elektroprivreda”. The appellants further alleged that dismissal was a measure that could have been only imposed by the ordinary judiciary. The High Representative, based on the Bonn powers, must not violate human rights or exceed his mandate under Annex 10. The procedure which was applied by the High Representative, as well as his decisions, are in violation of the appellants’ rights referred to in Articles 1 and 3 (prohibition of degrading treatment), Article 6 (right to a fair trial, presumption of innocence, right to legal assistance, etc.), Article 13 (right to an effective legal remedy), Article 14 of the ECHR (prohibition of discrimination), and Article 3 of the Additional Protocol No. 1 to the ECHR in conjunction with the Copenhagen principles which are included in the Annex (passive electoral right and freedoms) in conjunction with Article II.6 (obligation of application) of the BiH Constitution. The appellants concluded that the decision lacked any legal basis in domestic law, the ECHR or the BiH Constitution.

The decision of 2 November 2001 (which was not to be published) was laconically short. The BiH Constitutional Court rejected the appeals of the parliamentary delegates, as well as the individual appeal by declaring that it has no jurisdiction to decide on this matter. The challenged decision “cannot be considered a decision of the court”, “within the meaning of Article VI.3(b) of the Constitution. The parliamentary delegates are not authorised to lodge appeals according to Article VI.3(b) of the Constitution. On the other hand, their request does not fall within the scope of application of Article VI.3(a) of the Constitution.

Nothing new happened in the case of the arbitration decision on Dobrinja. Pursuant to Article VI.3(b) of the Constitution, in addition to the arbitration award, the decision of the High Representative was also challenged and, according to Annex 10 of the GFAP, the arbitrator was engaged in order to specify the Inter-Entity Boundary Line – IEBL in the Sarajevo suburb Dobrinja. The Inter-Entity boundary line, specified under Annex 2 and also presented on the attached map, proved to be unrealistic since it was not dividing only the settlement but also the buildings. By invoking its earlier jurisprudence in Cases U 9/00 (State Border Service), U 21/01 (CRPC) and U 7/97 (GFAP), the BiH Constitutional Court declared that it has no jurisdiction to decide the said matter.³³⁹⁴ Due to the parallel effect of the Annexes to the GFAP and the GFAP integrity, no conflict among the Annexes is possible.³³⁹⁵ The Court further stated that it is not competent to decide disputes arising from other Annexes – in this case from Annex 2. The engagement of an arbitrator is not a substitution for domestic legislation but rather an act which is adopted based on the specific powers of the High Representative in accordance with Annex 10.³³⁹⁶ As to the arbitration award, it was adopted based on the decision of the High Representative with no possibility of review, the Court further stated. Therefore, it is impossible to review this decision as it would be a regular practice in international law.³³⁹⁷

Unlike the aforesaid, at the end of September 2004 the BiH Constitutional Court, in many of its decisions, has significantly deviated from its judicial practice.³³⁹⁸ The appeals lodged in the spring of 2004 against a series of decisions of the High Representative on removal from office were no longer rejected just because of the fact that appellants had failed to appeal against judicial decisions, as in Case No. U 34/01, but now those appeals were rejected exclusively as premature. Namely, the appellants did not make an attempt to challenge decisions on their removal from office before the competent courts and, pursuant to the Constitution of the Federation of BiH, the courts are obliged to directly apply the ECHR and ensure the protection of rights and freedoms guaranteed under the Convention.³³⁹⁹ In this case the Court also established that, from a formal point of view and because of the consequences sustained by the injured parties, these challenged decisions, just like other similar decisions of the High Representative, have given rise to serious thinking about respect for human rights and freedoms under the BiH Constitution and ECHR. Inter alia, the impossibility to challenge the decisions of the High Representative does not allow an individual to pursue any effective legal remedy which raises doubts about the guaranties under Article 13 of the ECHR. Moreover, it is possible that the right to prohibition of discrimination was violated, which is referred to under Article II.4 of the BiH Constitution.³⁴⁰⁰ Finally, the challenged decisions do not contain any instruction of legal remedy. However, all State authorities in Bosnia and Herzegovina are subject to the obligation, while directly applying the ECHR, to review all acts that may be deemed to have violated individual human rights and freedoms and these authorities are obliged to provide and offer protection from possible violations.³⁴⁰¹

It means that it was only a matter of time before the affected persons would address the BiH Constitutional Court. Namely, upon exhausting all available legal remedies, the affected persons may appeal to the BiH Constitutional Court against the impossibility of challenging the decisions of the High Representative. And, indeed, that moment occurred when the appeal No. AP 953/05 was lodged and that was the moment when the BiH Constitutional Court, in order to be consistent, could and had to give its opinion about this matter. The appellants were two high-ranking officials from the RS (Bilbija and Kalinić) who were removed from their offices by a decision of the High Representative in 2004 and they were also barred from performing any public duties. He even barred them from performing any duties in the political party. All courts at the State and Entity level declared that they were not competent to review the decisions of the OHR on removal from office; no one was surprised by their statements. During the proceedings before the BiH Constitutional Court the appellants stated that Bosnia and Herzegovina (not the OHR) has violated, inter alia, their right to an effective legal remedy which is safeguarded under Article 13 of the ECHR because from the moment of being removed from office they were not given any court protection before any independent authority in the State.³⁴⁰²

On 8 July 2006 the BiH Constitutional Court arrived at a Solomon-like decision in which it found a violation of Article 13 to the ECHR for which Bosnia and Herzegovina is held responsible since there is no effective legal remedy in Bosnia and Herzegovina against the decisions of the High Representative.³⁴⁰³ Even when the State has transferred some competencies to international organisations, it still has a positive obligation to secure rights and freedoms under Article 1 of European Convention.³⁴⁰⁴ The Court further stated that the appellants’ human rights and freedoms, on the ground of the special position of the High Representative in BiH, cannot be excluded or limited. Although it was obliged to do so, Bosnia and Herzegovina failed to conduct activities urging the international and legal authorities to ensure a mechanism of protection from the interventions of the High Representative which are in violation of human rights and freedoms. At the same time, by referring to its earlier jurisprudence, the BiH Constitutional Court shall not review the decisions of the High Representative.³⁴⁰⁵ When it comes to the mutual effect of international and constitutional law within the person of the High Representative in BiH and possible restrictions on human rights and freedoms in Bosnia and Herzegovina based on the mandate of the High Representative, the BiH Constitutional Court argues as follows (the relevant part of the reasoning is quoted because of its significance exceeding the limits of the BiH context):

“62. […] successive Security Council Resolutions made under Chapter VII of the UN Charter have recognised the High Representative as having authority under Annex 10 to the General Framework Agreement for Peace to make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council. The Member States of the UN have an obligation under Article 25 of the UN Charter to carry out the Resolutions of the Security Council in accordance with the Charter. It is not entirely clear that the relevant provisions of the Security Council resolutions are decisions of the Security Council. They do not say that they are decisions. However, they clearly go beyond mere recommendations, and Article 39 recognises only two formal acts which the Security Council can promulgate under Chapter VII, namely recommendations and decisions. The BiH Constitutional Court therefore accepts that the relevant provisions of the High Representative are decisions for the purposes of Article 25 of the Charter. In international law, the High Representative thus has power to make binding decisions, and authorities of Bosnia and Herzegovina have an obligation to co-operate with the High Representative, by virtue of both the General Framework Agreement for Peace and the Security Council resolutions.

63. Furthermore, in international law by virtue of Article 103 of the UN Charter the obligations of Bosnia and Herzegovina to comply with decisions of the Security Council override conflicting obligations arising under other treaties. This appears to mean that, in the event of a conflict, even human rights obligations may be overridden by a Security Council resolution under Chapter VII of the Charter. The only possible exception so far recognised in the literature is an obligation which amounts to ius cogens, a peremptory norm of international law: see Article 30(1) of the Vienna Convention on the Law of Treaties; the decision of the Court of First Instance of the European Court of Justice, Kadi v Council of European Union (Case T-315/01, 21st September 2005); Separate Opinion of Judge ad hoc Lauterpacht in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (International Court of Justice, 13th September 1993, General List No. 91, at paragraph 100); Bernhardt, commentary on Article 103 of the Charter, in Bruce Simma et al., Charter of the United Nations – A Commentary, 2nd edition, at p. 1295. See also the decision of the European Court of Human Rights in Air Bosphorus v Ireland (Application No 45036/98, 30th June 2005).

64. The BiH Constitutional Court has carefully considered whether this deprives the appellant of any rights to which they might otherwise have been entitled, or protects the State of Bosnia and Herzegovina against positive obligations on which the BiH Constitutional Court can adjudicate and which it can enforce. In this connection, the BiH Constitutional Court draws attention to the following matters:

65. First, a decision that the authorities of Bosnia and Herzegovina owe positive obligations to the appellant would not in any way affect a decision of the High Representative, or call in question the legal effectiveness of his binding decision to dismiss the appellant from his post. The BiH Constitutional Court accepts the effectiveness of the decision of the High Representative. Indeed, had it not been effective the case would not have come before the Court.

66. Secondly, Article 103 of the Charter of the United Nations deals only with a sub-set of possible conflicts of laws in public international law, namely conflicts between the obligations of Member States of the United Nations arising under different treaties. It does not attempt (and indeed would be powerless to attempt) to determine the effect of any such conflict on the obligations of the authorities of Member States under their national constitutional or legal orders.

67. Thirdly, the obligations of the authorities of Bosnia and Herzegovina and the human rights within the jurisdiction of Bosnia and Herzegovina are clearly enumerated within the Constitution of Bosnia and Herzegovina. While the Constitution had its origin in an international treaty, Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina, it has functioned for over eleven years as the national Constitution, the highest legal act of the state of Bosnia and Herzegovina. It has a dual nature. It has an international aspect as one of the foundations for the existence and international recognition of Bosnia and Herzegovina in the international community of states. But it has a purely national aspect when perceived from within the country as the highest source of validity for the laws and institutions of Bosnia and Herzegovina. It is as a national, not an international, instrument that the BiH Constitutional Court, as the highest judicial authority within Bosnia and Herzegovina, interprets and gives effect to it.

68. Having taken these matters into account, the BiH Constitutional Court considers that the obligations of Bosnia and Herzegovina in public international law to co-operate with the High Representative and to act in conformity with decisions of the UN Security Council cannot determine the constitutional rights of people who are within the jurisdiction of Bosnia and Herzegovina […]”

The Court arrived at the following conclusions. The international and legal context of this case contains no aspects because of which the Court would be forced to adopt a conclusion which would be different from the conclusion reached on the basis of interpretation within the domestic constitutional framework.³⁴⁰⁶ Therefore, by the force of domestic law and the international effect of principles on human rights and freedoms, the State has a positive obligation to guarantee that human rights and freedoms will be respected. It is questionable whether Bosnia and Herzegovina has undertaken any steps in order to ensure effective legal protection from individual acts taken by the High Representative, in other words such activities are not recognisable.³⁴⁰⁷ “Bosnia and Herzegovina, through the Steering Board of the Peace Implementation Council and Security Council of the United Nations, a body in charge of nominating and confirming the appointment of the High Representative, was obliged to make an effort in pointing to the alleged violations of constitutional rights of individuals on the grounds of non-existence of an effective legal remedy and thus ensure the protection of constitutional rights of its citizens.”³⁴⁰⁸ There is no effective legal remedy in Bosnia and Herzegovina against the decisions of the High Representative which concern individual rights. Despite its positive obligation to protect constitutional rights, Bosnia and Herzegovina has taken no steps through the authorities having competence to nominate and appoint the High Representative for the purpose of ensuring the mentioned legal protection.³⁴⁰⁹ In this context, the BiH Constitutional Court recalls the opinion of the Venice Commission of 21/22 March 2005 on decertified police officers. The Venice Commission established that it was obvious that neither the courts nor any other BiH State authorities are competent to review or annul the decisions on decertification. Therefore, according to the opinion of the Venice Commission, the process of reviewing the decisions that cannot be challenged before the BiH authorities must be conducted by the United Nations. The Security Council should set up a special body mandated to review such challenged decisions.³⁴¹⁰ Finally, the following is stated in the reasoning:

“76. Therefore, the BiH Constitutional Court concludes that the appellants’ right to an effective legal remedy under Article 13 of the European Convention has been violated in the instant case, and therefore it is true that Bosnia and Herzegovina has a positive obligation to protect the constitutional rights of appellants in this regard.”