vi. Possibility of judicial review of acts passed by the OHR in “a grey zone”

In Decision No. U 13/02, the subject of review before the BiH Constitutional Court was a legal act of the High Representative which could not be easily defined as a law, neither in formal nor in substantive terms. By its “Decision on allocating jurisdiction for the investigation, prosecution and trials of incidents of violence and intimidation in the Federation during the past month to the Cantonal Prosecutor and Cantonal Court”, No. 101/01 of 27 April 2001,³⁴¹⁸ the High Representative passed special regulations on the jurisdiction of criminal prosecution bodies for a number of criminal acts. The reason was related to the attempts of a number of Croat politicians from the Federation aspiring for independence in the spring of 2004. Under the leadership of Ante Jelavić, who was a Croat member in the BiH Presidency at that time, the mentioned politicians attempted to establish parallel Croat institutions because the Croat leadership considered that the Croat interests were insufficiently protected in the Federation and at the State level. In this context, a conflict occurred between the Croat representatives and SFOR peacekeeping troops and OHR and there was a use of force. The incident occurred when the mentioned representatives tried to confiscate the evidentiary material from several branches of the Hercegovačka Bank being suspected of financing the interests of Croat groups whose aim was secession. In order to ensure a criminal prosecution of responsible persons by independent judges and prosecutors, the OHR was of the opinion that, regardless of applicable regulations on jurisdiction under the relevant law on criminal proceedings, it was necessary to assign the mentioned cases to the criminal prosecution bodies of the Canton of Sarajevo and some cases were to be directly forwarded to the Court of the Federation of BiH. The bodies having territorial and subject-matter jurisdiction over the said cases had to allocate those cases to the bodies mentioned in the decision.

The BiH Constitutional Court declared that it has no jurisdiction to take a decision in the Ante Jelavić case where the violation of procedural rights under Article 6 of the ECHR was established. With reference to the issue whether all available legal remedies had been exhausted, the majority of judges considered that the decision on the jurisdiction of the Criminal Panel could no longer be challenged by pursuance of ordinary legal remedies and that all legal remedies available under law had been already exhausted.³⁴¹⁹ In the proceedings relating to this case, a primary issue was not the decision of the High Representative, although his decision was a decisive one when it came to resolving the issue of lawfulness of jurisdiction of the court that was assigned the task to criminally prosecute the appellant. In its decision of 10 May 2002, the BiH Constitutional Court established that there was a violation of the right to a fair trial under Article 6 of the ECHR because the proceeding conducted by the court lacked territorial jurisdiction. Taking into account the previous case- law of the Court concerning the possibility of reviewing OHR legal acts it was necessary to assess the decree of the OHR as a law in order to make such a conclusion, (the substitution formula applied in Case No. U 9/00). Otherwise, this specific (incidental) review of the acts issued by the OHR would not be permitted either, although it occurred in this case. The BiH Constitutional Court declared this act as a legislative act in substantive terms since the regulations on territorial jurisdiction of judiciary fall within the competence of the federal legislature according to Article IV.A.5/1(d) of the Federation of BiH Constitution. As far as this case is concerned, those are indeed the regulations dealing with a specific situation where a doubt exists that the specific criminal offences have been committed by way of undertaking certain actions. Hoverer, this specific act is not related to specific perpetrators. This difference has been of decisive importance for the Court in order to make a difference between a general act and an individual concrete act.³⁴²⁰ Accordingly, the BiH Constitutional Court established that there was a violation of the appellant’s right under Article 6 of the ECHR since the ordinary criminal court, while establishing its jurisdiction, failed to take into consideration the applicable regulations on criminal proceedings, but rather relied on the decision of the High Representative, which, in itself, is unconstitutional. To be precise, the High Representative, who is bound by the Constitution even when imposing the law, restricted the appellant’s procedural rights referred to in the Law on Criminal Proceedings. Moreover, due to the coercive nature of his measure, the High Representative also violated the principle of democracy under Article I.2 of the Constitution of the Federation of BiH.³⁴²¹