vii. Commentary

At first sight, the Human Rights Chamber was assigned a more significant criterion for determining its jurisdiction in regards to the acts of the international community in the country since the Human Rights Chamber’s jurisdiction had been explicitly limited to establishing human rights violations in areas falling within the jurisdiction of the Parties. Therefore, the Human Rights Chamber may fully release the Parties under Annex 6 from responsibility in cases where the High Representatives removed the holders of public functions from their office. Indeed, when it comes to these acts, no responsibility of the Parties is to be implied ex-ante in any form. By relying on the jurisprudence of the BiH Constitutional Court, the Human Rights Chamber subsequently specified the area of the Parties’ responsibility under Annex 6 using the substitution formula arising from the concept of functional duality. When the High Representative passes domestic laws, the responsibilities of the Parties under Annex 6 arise from their capacity to modify those acts. Accordingly, the responsibility does not arise from the fact that the Parties (to say the least) are the framers of the High Representative’s organs and that, as a consequence, the Parties should allegedly control him. In fact, Bosnia and Herzegovina, the Republika Srpska and the Federation may be held responsible only in a situation where some act, after being imposed by the High Representative, was not harmonised with the Constitution. Consequently, the Human Rights Chamber has recognised this kind of responsibility, i.e., the responsibility for failure to act, but only with respect to legal acts that could have been be modified or made ineffective by the Parties under Annex 6. If the Parties have no possibility to pass such acts, then neither could they be held responsible for amending or annulling those acts. In this way, the Human Rights Chamber has proved that its previous case-law relating to the decisions on removal from office by application of the substitution formula hasn’t changed as yet. This kind of approach helped the Human Rights Chamber ensure that the Parties under Annex 6 are not exposed to an excessive burden. While the domestic legislature could still be expected and requested to amend the law which is in violation of the ECHR, it would be too much to hold the Parties responsible for the measures taken by the High Representative by virtue of his international and legal mandate for the reason that those measures (provisionally) have no legal basis in domestic law, they are not accessible to domestic authorities, which means that the said authorities cannot make the relevant amendments.

The judicial practice of the BiH Constitutional Court is more complex. It has been developed for years and, with the passing of time, the BiH Constitutional Court has been intensifying its efforts in dealing with issues and complex matters in which constitutional and international law were interconnected. In Case No U 9/00, the BiH Constitutional Court tried, for the first time, to make a distinction between the authority of international and domestic actors, i.e., between the different Annexes of the Dayton Agreement. The Court was still explicitly restricting its own authority, claiming that it is not called upon to review the grounds for and exercise of the authority of the High Representative since the foundation for his activity lies in international law, although, occasionally and provisionally, he substitutes for the work of domestic institutions (“functional duality”). As to the Court’s statement that it is not called upon to review the exercise of the authority of the High Representative, given the fact that the laws are still subsequently reviewed we should interpret this statement in a way that the issue of whether a certain decision should have been adopted is not to be considered before the BiH Constitutional Court, but only the manner in which the relevant decision was adopted. In other words: the timing of the High Representative’s intervention is subject to his own assessment which is not to be reviewed by the judiciary. However, the High Representative is to comply with the Constitution when using his powers and his actions are subject to review by the BiH Constitutional Court.

A starting point and basis for such an opinion is the statement that the BiH Constitutional Court has jurisdiction “whenever […] this control is based on one of the competences enumerated in Article VI.3 of the Constitution of Bosnia and Herzegovina”.³⁴²² However, there is no legal way of addressing the BiH Constitutional Court. Neither does the Constitution nor any other domestic law contain some general clause in this regard, such as the one under Article 40, paragraph 1 of the German Law on Administrative Judiciary (Verwaltungsgerichtsordnung).³⁴²³ As to the question whether it is a legal act within the meaning of Article VI.3, the BiH Constitutional Court, in Case No. U 9/00 and in Case No. U 13/02, pointed out that “according to the form and content”, those are the laws of Bosnia and Herzegovina. The author of the act is not relevant when it comes to the issue of jurisdiction. In this respect, the judicial practice of German courts after World War II is different from the practice of the BiH Constitutional Court. The German courts declared that they had no jurisdiction to review the acts of the Alliance forces that had placed Germany under administrative rule after the war, arguing that those acts, for instance, “by their substantive content […] constitute the law of the French Military Government”,³⁴²⁴ or they could not be considered, for instance, as a measure of the Land Central Bank undertaken based on the order of foreign military government.³⁴²⁵

The Court considered that by invoking Article VI.3 of the BiH Constitution it would be able to clarify the situation and establish clear relations. Thus, in the Bičakčić case (U 37/01) the request of the parliamentary delegates was dismissed, for it exceeded the scope of application of Article VI.3(a), and the individual appeal was also dismissed for the reason that the appellant failed to appeal against the decision of “any court in Bosnia and Herzegovina”. A subsequent assessment of regulations on jurisdiction within the scope of a substation formula required a more detailed explanation. Given this unspecific legal phrase under Article VI.3(a) “including, but not limited to”, at first sight it is hard to recognise a clear borderline concerning the subject of review. Taking into account the systematic and teleological interpretations, as well as the legal-comparative approach to this regulation, it appears that the field of application of Article VI.3(a) is limited to federal and organic disputes, including the abstract control (review) of the constitutionality.³⁴²⁶ Accordingly, as to individual acts such as the decisions on removal from office that were issued by the High Representative, they do not fall within the scope of Article VI.3(a). However, when it comes to a prospective application of Article VI.3(b), the argument –although being correct in itself – that the decisions on removal from office issued by the High Representative are not the judgments of domestic courts is not sufficiently strong. It is because the BiH Constitutional Court has already decided that Article VI.3(b) would be widely interpreted and that it would accept appeals in which the appellants complain against the inactivity of the judiciary (which means that it is acceptable to lodge appeals according to Article VI.3(b) of the BiH Constitution although there is no “judgment”). Moreover, within the frame of guaranteeing legal protection (Article 6, i.e., Article 13 of ECHR), the BiH Constitutional Court accepted the appeals lodged against administrative acts, which could not be challenged before domestic courts. Even if the intention was to avoid making a hasty conclusion that none of the courts in Bosnia and Herzegovina are to deal with the decisions of the High Representative, this Court could have, nevertheless, rejected the relevant appeal on the grounds of non-exhaustion of legal remedies. The formal and legal argumentation used in this regard (in Case No. U 37/01) means avoidance of confrontation with a legal problem, in particular because it was not obligatory at all. That argumentation wrongly implies that there are clear limitations concerning the jurisdiction of the BiH Constitutional Court and thus makes an impression that the High Representative partially acts in a legal vacuum. As to the case where the High Representative substitutes for the work of domestic authorities, he is subject to control by the BiH Constitutional Court, but in other cases he is not.

The decision of the Court in Case No. U 13/02, to say the least, is not of excellent quality and is not sustainable as a precedent. Similar to the decision on admissibility, the decision on merits is also questionable and is not justified at all. Even in a case where the appellant could no longer challenge this decision by ordinary legal remedies, it is still debatable whether the appeal was to be declared admissible. Pursuant to the ECHR, when examining the fairness of the proceedings, the Court should take the whole proceedings into its consideration. For the purpose of meeting the requirement of the cost-effectiveness of the proceedings, there should be no separate challenging of individual procedural decisions before the BiH Constitutional Court.³⁴²⁷ It seems that the discussion on the legal nature of the OHR decisions, including its results, was aimed at the result only. Instead of naming the mentioned decisions laws (a necessary requirement for establishing the court’s jurisdiction), it would be more convincing if those decisions were considered as special measures dealing with territorial jurisdiction. It must be pointed out that the issue indeed pertained to a special measure of provisional international administration under Annex 10, whose aim was to sanction those who do not comply with the Dayton Constitution and who launch attacks on the State and this goal was to be achieved in cooperation with politically independent criminal prosecution bodies. Moreover, the decision does not deal with the issue of whether Article 6 of the ECHR guarantees the right to a judge having territorial jurisdiction or just the right to any legally appointed judge.³⁴²⁸ That is the reason why the Court referred to the violation of an ordinary law, i.e., the law on criminal proceedings, which obviously do not have the rank of the Constitution and therefore, they could not have supremacy over the OHR decisions, which are classified into the rank of laws. Finally, pointing to violations of the principles of democracy by publicising the imposing nature of the OHR acts is totally unfounded. It is unacceptable that the powers for passing international intervention acts and the necessity to pass those acts in accordance with Annex 10 are intentionally disregarded based on half of the sentence (literally speaking) although that kind of interventionism – as, by the way, explicitly admitted by the BiH Constitutional Court – has no democratic legitimacy per definitionem and should not have it in the context of international law.

Unlike the aforesaid, rejecting the appeals that have been lodged against the decisions on removal from office as premature by arguing that the appellant has failed to defend himself from the OHR decisions in some other way is legally founded in the context of the gradual reacquiring of State sovereignty.³⁴²⁹ The Court reserved the right to review the individual acts upon the exhaustion of ordinary legal remedies.

When the appellants, after unsuccessful attempts before ordinary courts, had finally reached the BiH Constitutional Court, this Court opted for a “diplomatic solution”. In its judgment, Case No. AP 953/05, the Court found that the right to an effective legal remedy under Article 13 of the ECHR was violated by this specific act of the High Representative, since there is no legal remedy against this act, and Bosnia and Herzegovina did nothing to introduce such a remedy. This statement opens room for many different conclusions, as well as the fact that neither does the Court decide on the merits of the case nor does it order the introduction of a relevant judiciary body, nor does it forward the case to some other court to take a decision on merits.

Firstly: Legal protection is required against the decisions of the OHR. Domestic constitutional law, which has declared numerous international conventions as directly applicable, imposes the ensuring of legal protection even against the acts of the High Representative, whose powers arise from Article 10, as well as from the applicable UN Security Council Resolutions under Chapter VII of the Charter. Domestic law foresees no regulation for exclusion, neither could some general exclusions nor restrictions of human rights and freedoms be found in international law.

Secondly: Without presenting an opinion about the subject of proceedings. Which criterion is to be applied to individual acts of the High Representatives in order to ensure legal protection, and are exceptions possible with regards to some usual levels of protection of human rights and freedoms arising from the necessity to implement the peace agreement – those are the questions that the Court has failed to answer. It is a fact that the BiH Constitutional Court was not giving its opinion about the constitutionality of the challenged acts.

Thirdly: Need for a judicial body that would possess international legitimacy. At the moment of the issuance of this decision there was no relevant body to protect the appellants (including the BiH Constitutional Court). By pointing to the recommendation of the Venice Commission, the BiH Constitutional Court indicates that neither this Court nor some other domestic State body can establish such kind of judicial instance without the participation of the Security Council and possibly the PIC.

Fourthly: The content of the positive obligation to provide protection. The responsibility of the State for violations of the appellants’ rights under Article 13 of the ECHR is not contained in the fact that the State has failed to provide appropriate legal protection because, as per the Court’s opinion, the State has no such authorisation. However, the State should have intervened by addressing the legally (UN Security Council) and politically (PIC) authorised bodies so as to demand the establishment of a relevant judicial body that would be internationally authorised and thus ensure the appropriate legal protection for its citizens.

Fifthly: The substitution formula is still applied. Upon adopting this decision, the Court has not yet exceeded the limits of international law (concerning its competence). The internal domestic legislature is authorised to subsequently amend the law imposed by the OHR and the BiH Constitutional Court is authorised to examine that law and eventually make it ineffective. However, the specific individual acts of the OHR are based on international-legal authorisations, so the internal State bodies are not authorised to examine whether those acts are consistent with the Constitution or not.

However, the High Representative considered that the decision in Case No. AP 953/05 jeopardized his own authority guaranteed under the Dayton Agreement and soon after its publication in the official gazettes he issued a resolute order.³⁴³⁰

In this order, the OHR stated that the PIC Steering Board (27 February 2007) is concerned that “domestic” actors in Bosnia and Herzegovina have challenged actions undertaken on the basis of Dayton Agreement and UN Security Council Resolutions under Chapter VII of the United Nations Charter. Therefore, all institutions of Bosnia and Herzegovina should be reminded that their international obligations under the GFAP and the United Nations Charter must be respected. The Steering Board authorised the High Representative, in close coordination with the Steering Board Ambassadors, to take appropriate actions to ensure that Bosnia and Herzegovina fulfils these international obligations.

The OHR accepted the theory of functional duality developed by the BiH Constitutional Court in its Decision U 9/00 and also agreed to waive his immunity concerning his legislative acts and consented to the review of certain of his acts within the framework of the above mentioned theory and is willing to continue doing that. However, the decisions on removal from office, according to the mentioned theory, cannot be subject to review since they are based on the authorities under Annex 10. The Court rightfully referred to the international-legal ground for the powers of the High Representative, including the Resolution of the UN Security Council, and refused to review certain decisions of OHR; in other words the Court declared that it was not competent to review the mentioned decisions.

There is no State that can hold the High Representative accountable in any way; he is not an organ of Bosnia and Herzegovina or any other State and his actions cannot engage the responsibility of any State, including Bosnia and Herzegovina. Further, the High Representative – to his satisfaction – concluded that the Court, due to the violations that have been established, may only reproach the State for not bringing the alleged violations of constitutional rights to the attention of the responsible international bodies.

Pursuant to Article V of Annex 10, as interpreted by the High Representative, the legal force of his decisions and orders does do not arise from any transfer of competence regardless of whether those competencies have interfered with the legal order of the State, Entity, Canton or District or somewhere else.

Moreover, the OHR is aware that the wrong interpretation of the judgment by the State bodies, institutions and organs of Bosnia and Herzegovina, may place them, when implementing the Decision of the Court, in violation of their aforementioned international obligations. Given the aforesaid, by exercising his powers relating to the coordination of activities under Annex 10, the OHR has an exclusive responsibility to ensure that the implementation of the judgment of the BiH Constitutional Court does not jeopardise the peace agreement, and in particular the powers of the High Representative to sanction those individuals whose conduct impedes such implementation.

It is also necessary to recall that it is already open for individuals to address the OHR to have their ban (on holding public offices) lifted and that such lifting of the ban has occurred in 50 cases.

In addition to such considerations, by issuing a series of orders, the High Representative has confirmed his role in the process of construction of the peace agreement The Presidency of Bosnia and Herzegovina shall address to the High Representative, as Chair of the Steering Board of the Peace Implementation Council, all matters raised in said Decision that ought to be considered by the international authorities (Article 1). Any step taken by any institution or authority in Bosnia and Herzegovina in order to establish any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate shall be considered by the High Representative as an attempt to undermine the implementation of the GFAP civilian aspects; and all such measures shall be viewed as conduct undermining the implementation (Article 2). Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent (Article 3, paragraph 1). Any proceeding referred to in paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay (Article 3, paragraph 2). “For the avoidance of any doubt or ambiguity”, the OHR, in the exercise of its international mandate, releases the public authorities in Bosnia and Herzegovina from any liability in respect of any direct or indirect responsibility for the decisions of the OHR (Article 3, paragraph 3).³⁴³¹ The provisions of the Order are laid down by the High Representative pursuant to his international mandate and are not, therefore, justiciable by the courts of Bosnia and Herzegovina or its Entities or elsewhere. Furthermore, no proceedings may be brought in respect thereof before any court whatsoever at any time hereafter (Article 4).

The reaction of the High Representative was very explicit and strong. An institution entrusted with the civilian implementation of the peace agreement needs to prevent similar situations in the future which may lead to the disappearance of authority of the High Representative, authority that has already been considerably undermined. In pursuance of this goal the OHR has recognized its fine self-limits, as well as the limits between international law and domestic law in the relevant judgment. It is understandable that the OHR is afraid that this legal differentiation may cause misunderstanding even among educated lawyers if that issue is to be addressed before the courts and administrative bodies, and this could be particularly manifested under the influence of interest groups. Therefore, by giving explicit instructions and restrictions, the High Representative wishes, once again, to clarify which kind of consequences this judgment may cause in terms of judicial practice.

If the hypothesis referred to in Case No. AP 953/05 (necessity of legal protection against the acts of the OHR; lack of competence of the domestic courts, and the necessity of the establishment of a judicial institution with international legal authority) are viewed together with the formula on substitution developed by the very Court, what comes to light is the contradiction which has existed in the case law of the BiH Constitutional Court from the very beginning: the hypothesis according to which the legislative activity of the High Representative may be reviewed, and the rest of the measures may not, makes no sense either in formal-legal terms, or in terms of the purpose of the peace agreement. For, powers for the legislative intervention of the OHR do not originate from the Constitution of BiH, but from Annex 10. The formula of substitution mixes different categories, aspiring to create a practical and applicable criterion for the distinction of cases.

The legal basis for the powers for intervention of the High Representative always lie in Annex 10, irrespective of the individual measure concerned (law or concrete measure against an individual). Thereby, a decision of the High Representative enacted in the form of law for implementation of the peace agreement is as significant as an individual act. Thus, it is impossible to understand why a possibility would exist for the internal State authorities, including the BiH Constitutional Court, to review a decision in the form of law, to declare it null and void or to render it ineffective, and not to be able to do likewise with concrete individual measures. If we consider Annex 10 a relevant norm granting to the High Representative power to act, then such a norm – which applies to all of the acts of the High Representative in general – is not sufficiently specified, particularly if one bears in mind that the interpretation of Annex 10 as given by the High Representative himself is considered as the applicable legal basis (which de facto reads: the High Representative may do anything he deems necessary). However, likewise, the fact that Annex 10 does not enumerate all the instruments that the international “assistant to those in distress” requires in order to exercise his duties is also part of the GFAP construction. Therefore, it would be more appropriate to claim that on the basis of the legal construction of “Annex 4-Annex 10 of the DPA” and their mutual relations, all measures of the High Representative, with the exception of the advisory function, ought to be viewed as orders or substitute measures. The power thereof arises from Annex 10 of the DPA. To adopt a measure necessary in a given situation, regardless of whether it concerns the provisional imposing of a law or a political sanction or such like, if possible, the High Representative relies on the legal basis of the power which a competent body or a State authority has under the domestic law, and which would otherwise, under the domestic law, be competent for its adoption. From that viewpoint, the fact that Annex 10 does not contain a specific basis for powers does not appear problematic.

The law, a concrete individual measure or some other measure, which is not possible to precisely define, constitutes instruments of activity of the public authority, in which stead, due to the exceptional circumstances, the High Representative must act. However, differentiation of such measures, depending on whether such national instruments exist or not, is not completely fair. This kind of differentiation is only factual in nature. Certain acts of the High Representative have no legal basis in the national law, on which a domestic authority could otherwise rely had such a legal basis been created. Therefore, theoretically speaking, the domestic legislature, i.e., the contracting parties to Annex 6, could fill such a legal gap. It is equally possible to shape the legal basis for both the dismissal of an elected official or a member of parliament and for the ban to exercise such office for a certain period of time. The same goes for “the freezing” of bank accounts, thwarting the funding of political parties through public funds, or temporary suspension of a possibility to challenge a certain act in court.

Examples from the German law may perhaps clarify the aforementioned: Under Article 41 of the Basic Law, the Bundestag shall decide whether a member of the Bundestag shall lose his/her membership. This decision may be challenged before the German Federal Constitutional Court (BVerfG). Article 61 of the Basic Law regulates issues of filing a lawsuit against the president and of the German Federal Constitutional Court adopting a decision on his/her dismissal. Under Article 64 of the Basic Law, the federal minister may be dismissed by the President of the Federal Republic of Germany at the proposal of a federal chancellor. Article 67 of the Basic Law provides for a possibility to vote no confidence in the federal chancellor.

In the case Bičakčić there was a legal basis for the removal from office of a director general. The position of the director of the enterprise, under the Law on Elektroprivreda Power Supply Company and the Statute on Elektroprivreda Power Supply Company, is a public position.³⁴³² The Steering Board of the enterprise may remove from office the director with the consent of the Government. Therefore, the High Representative had substituted in this case either the first-instance administrative authority (the Steering Board of the enterprise) or the Supreme Court of FBiH, as a judicial control body. If we take the first case as an example: Bičakčić would in that case have to first address the Supreme Court of FBiH, whereby his appeal with the BiH Constitutional Court of BiH would again be dismissed as premature. If we take another case as an example – in the context of the substitution formula – then the appeal against the judgment of the Supreme Court of the Federation of BiH would, under Article VI.3(b), indeed come within the competence of the BiH Constitutional Court of BiH. Whether the removal from office falls under the protection of the constitutional human rights and fundamental freedoms (problem area related to ratione materiae) is another issue. Likewise, it is not certain whether the removal from office constitutes a “criminal sanction” within the meaning of Article 6, paragraph 1 of the ECHR.

Yet there is a lack of domestic legal basis for other types of interventions. Thus, e.g., a permanent ban on exercising public office, in the proceedings in which it was issued, does not exist in the domestic law, nor is it in accordance with elections (Annex 3) or with the Election Rules enacted in accordance with Annex 3. Article 604 of the Election Rules, which were in force at the time of removal from office, provides as a sanction only the impossibility for such a person to run for office at the next first elections.

The new Election Law of Bosnia and Herzegovina, in addition to fines and removal from the list, only provides for a sanction of withdrawal of a permit for elections.³⁴³³ However, the ban to exercise public office and denial of the right to be elected are provided for in the Spanish Criminal Code,³⁴³⁴ as one of the sanctions for certain criminal acts, only if concerning a serious criminal act and if such a criminal act is prosecuted in compliance with the principles of a legal state.

If, however, internal State instruments do exist, then the High Representative, when enacting a certain act, acts in the stead of the State institution. The substitution formula would have to be applied, thereby making the action of the High Representative subject to State control. The substitution formula as such, thus, does not bestow on the High Representative special rights or rights he needs in an emergency situation in order to implement the peace agreement and the rights he has under Annex 10 in conjunction with the PIC declarations and with the support of the UN Security Council.

Also, the mission and purpose of the GFAP are not in granting to the High Representative special rights with international and legal grounds solely in such matters where he, more-or-less, does not act as a substitute for domestic authorities, and that conversely, i.e., when some measure of his could have been theoretically enforced by a domestic entity, he be subject to domestic control. For, activities of the High Representative aimed at consolidating peace will not be less threatened if he acts in the manner provided for by domestic law (e.g. enacting a law), and then to have his activity reviewed by domestic authorities. Would, in such a case, the High Representative dare to intervene once more in order to correct such a domestic decision again and to direct it in the opposite direction, if it proved contrary to his intentions? In such a case a delicate political process would set in, making it impossible in political terms for the High Representative, despite his existent powers and powers based on international law, to implement his positions.

As part of the peace implementation in Bosnia and Herzegovina in the area where international and constitutional laws overlap and come into contact with each other, the substitution formula – which only, seemingly, creates clear relations – brought about a situation in which, to a question of who has the last say, both sides can reply in terms of the principle of political opportunism. It is important for the domestic authorities, in particular for the BiH Constitutional Court, to affirm themselves as institutions slowly and gradually, without falling into a fatal trap while doing so, such as for instance the criticism addressed by the other contracting party to Annex 10. What is important for the High Representative is that he does not exceed the extent of necessary interventionism, and or compromise unnecessarily domestic institutions which are developing steadily, particularly in instances when they are fulfilling the mandates entrusted to them by the Constitution.

In the already mentioned delicate cases, at the end of the mandate of the first composition line-up of the judges of the BiH Constitutional Court – this refers primarily to the Case No. U 13/02 – an open tug of war occurred between the High Representative and the BiH Constitutional Court. In the mentioned cases, the Court failed to seek the opinion of the High Representative prior to making a decision, unlike the usual practice, despite the fact that the HR had explicitly requested so and the fact that the Court in its decisions indirectly/incidentally declared the High Representative’s decisions unconstitutional. The High Representative, who was – one might not say unjustifiably – alarmed by the media reports, urged that a request be submitted for review of a decision in the Case No. U 13/02, under Article 67 of the Rules of the BiH Constitutional Court (present version) and requested, thereafter, distancing from undertaking other steps aimed at publishing the decision. The Human Rights Chamber of the BiH Constitutional Court, made up of the President and two Vice- presidents, succumbed to the pressure and decided (according to the subsequent interpretation of the BiH Constitutional Court in a new line- up of judges) to propose at a plenary session (attended by all judges) the review of the respective decision under Article 67 of the Rules of the BiH Constitutional Court (present version). The BiH Constitutional Court was no longer in agreement on the respective matter in its former line-up. Only 17 months thereafter the newly appointed judges decided not to grant the proposal for review, reasoning that the judges making the proposal had not actually been behind the respective proposal, but instead they had only forwarded it as mediators, at the request of the High Representative, which is not in accordance with Article 67 of the Rules of the BiH Constitutional Court (present version).³⁴³⁵ Under Article

67 of the Rules of the BiH Constitutional Court (present version), the review of an unpublished decision may be proposed only by the Editorial Commission or by a judge, but not by third persons.

Indeed, in all of this we must not forget that certain decisions of the High Representative with regard to respect for the principles of a legal state and democracy, and constitutional guarantees, have been, at the very least, questionable. Even the argument that this, in principle, concerns purely political decisions, which had damaged certain persons, such as for instance the removal from office of a minister or of some other officials, is of little use. For, if the respective decisions had damaged the elected representatives of the people, as was the case with, for instance, the then Croat member of the Presidency Anto Jelavić, one may say that the very principle of democracy was brought into question. On the other hand, the High Representative cannot be held liable, even indirectly, by those who have the responsibility to respect his acts. The control (review) carried out by the ambassadors of the PIC member countries in Bosnia and Herzegovina cannot compensate for this lack of democracy. If the High Representative determines sanctions without respecting the fundamental guarantees of the right to a fair trial while doing so, this may provoke serious violations of different human rights and freedoms, such as, e.g., the right to freedom of exercising profession, the right to be elected, the right to a fair trial under Article 6 of the ECHR, as well as the principle nulla poena sine lege (Article 7 of the ECHR). The procedures for removal from office that the OHR had instituted for other international organisations barely respect the right to a fair trial within the meaning of Article 6 of the ECHR.³⁴³⁶

Therefore, we can only welcome the BiH Constitutional Court’s standing up for the rights of citizens, starting from the Case No. AP 953/05 and onwards, and establishing a violation of the right to an efficient legal instrument, as there is no judicial body that the persons damaged by the OHR decisions may address and request independent review of the decision concerned. Holding the State to account over this shortcoming at first sight appears paradoxical, as the very

Court notes that neither the existing domestic courts may review the OHR acts, nor can the State independently found such an institution. However, argument of the BiH Constitutional Court that the State here has to, nevertheless, act based on its positive obligation to provide the protection referred to in Article 1 of the ECHR, and try to secure with the competent international legal authorities the establishment of a legal remedy, indeed is an appropriate response to the relation between the international and constitutional law in the Dayton construction, which reveals a certain tension. In the international and legal sense the acts of the High Representative and respect for human rights are compulsory. The State must do its best, using instruments at its disposal, to strike a balance between these two obligations which are partially contradictory to one other, i.e., antagonistic.

The BiH Constitutional Court does not address the issue as to whether the acts of the OHR have been harmonised in substantive and legal terms with the constitutional rights and freedoms and other constitutional norms. As a justification for restriction of constitutional rights and freedoms, nevertheless one could say that the High Representative has at his disposal powers in the event of emergency, and that such powers allow him to employ special instruments. The consequence being restriction of the constitutional rights and freedoms in some cases, which is only temporary in character and should be accepted as such. In a similar case, while writing about the Trusteeship Administration of the UN, Tomuschat (no date) spoke of a “delicate balance”, “for the Trusteeship Administration, without exceptions, is established for the reason that [a] population in a certain region, due to internal instability or external threat, is not able to take their destiny into their own hands. […] Apparently it is necessary to correct such power in a democratic sense by way of appropriate rights of the domestic population to participate. Nevertheless, concessions will be needed while guaranteeing the respect for principles of a legal state, as, most probably for purely factual reasons, it will be proven that creation of a perfect judicial system is impossible”. Yet, such argumentation, after normalisation of the situation in the country, shall no longer be convincing.³⁴³⁷