Case-law of the Constitutional Court

The Constitutional Court was faced relatively early with the issue of whether it could examine the constitutionality of decisions of the Human Rights Chamber (including their compatibility with the ECHR). In 1998, the Constitutional Court received a number of appeals against decisions of the Human Rights Chamber; all appellants were State authorities.

For example, in Case No. U 7/98, the Public Attorney’s Office of the Federation of Bosnia and Herzegovina³²⁶¹ complained about the decision which the Human Rights Chamber had taken in the Damjanović case.³²⁶² In that Decision, the Human Rights Chamber obliged the Federation to pay damage-compensation. The appellant claimed that the decision of the Human Rights Chamber was in violation of national laws and international conventions. Moreover, the appellant claimed that Damjanović did not request any State authority to pay him compensation for damage. Moreover, the death sentence had been pronounced before the General Framework Agreement. In Case No. U 8/98, the Public Attorney’s Office of the Federation of Bosnia and Herzegovina challenged the decision in the Marčeta case.³²⁶³ In that case, the Human Rights Chamber ordered the Federation to pay compensation for damage. The appellant considered it unjustified, arguing that the regulations relating to the manner of payment of damage and the amount of damage are not the subject of the ECHR or its Protocols but of national laws.

The Constitutional Court gave almost identical reasons in Decisions Nos. U 7/98 through U 11/98. The Constitutional Court confirmed that it was called upon, according to Article II of the BiH Constitution in conjunction with Article VI.3(b) of the BiH Constitution, to protect human rights guaranteed by the Constitution against decisions of the BiH courts which violate such rights. Article II.1 of the BiH Constitution provides for an additional mechanism for the protection of these rights in Annex 6 of the GFAP “as being part of the whole system of protection of human rights and fundamental freedoms in Bosnia and Herzegovina”. The Constitution and Annex 6, as stated by the Constitutional Court, were adopted at the same time and they supplement each other; as to the link between the Constitution and Annex 6, “it can be concluded with certainty” that the provisions of Annex 6 “cannot be contrary to the Constitution”. The relation between the Constitutional Court and the Human Rights Chamber as institutions called upon to protect human rights is not regulated by the Peace Agreement, nor is it regulated under national law. Taking into account the norm relating to the jurisdiction of the Constitutional Court under Article VI.3(b) of the BiH Constitution (“judgment of a court in Bosnia and Herzegovina”), the Human Rights Chamber does perform “judicial functions”. However, according to the terminology of Annex 6, the Human Rights Chamber is neither a “court”, nor an institution of Bosnia and Herzegovina, since Article XIV of Annex 6 provides that five years after the Agreement enters into force, the responsibility for the continued operation of the Human Rights Commission shall transfer to the institutions of Bosnia and Herzegovina – unless otherwise agreed. Therefore, the Human Rights Chamber is not an institution of Bosnia and Herzegovina.

Moreover, the Framer of the Constitution, taking into account Article VI.3(c) of the BiH Constitution (concrete/incidental control of norms), which, just like Article VI.3(b), deals with a “court in Bosnia and Herzegovina”, surely did not have the intention to oblige the Human Rights Chamber to refer questions relating to human rights to the Constitutional Court. A contrario conclusion means that the Human Rights Chamber is not a court in Bosnia and Herzegovina. Both the decisions of the Constitutional Court (Article VI.4 of the BiH Constitution) and the Human Rights Chamber (Article XI.3 of Annex 6) are final and binding. Both regulations were adopted at the same time so that their authors did not intend to confer the jurisdiction to either of these institutions to review the decisions of the other one. They held that the Human Rights Chamber and the Constitutional Court were to operate as parallel institutions insofar as human rights matters were concerned, although none of them were authorised to interfere with the activities of the other one. Individuals can choose between the institutions to file a request. It must be admitted that such parallelism leaves room for contradictions in the case-law. Moreover, this leaves a dilemma for individuals as to which institution he/she should address. However, the Constitutional Court concluded that this is regulated in a such manner in the Peace Agreement, that it had a temporal character and that it should be accepted as such. In Case No. U 13/01, the Constitutional Court confirmed this view once again.

In his separate opinion, Judge Begić reminds of the divergent view of the Venice Commission insofar as this matter is concerned, and he argues as follows: “The Human Rights Chamber is a constitutional authority established in accordance with Article II.1 of the BiH Constitution. The participation of [an] international factor in the Human Rights Chamber is not contrary to its character as a ‘court in Bosnia and Herzegovina’. By not reviewing the decisions of the Human Rights Chamber , the Constitutional Court does not surrender a significant part of its mandate that obliges it to be [the] upholder of the Constitution. Finally, the fact that the Constitutional Court declined the competence to review decisions of the Human Rights Chamber brings into question [the] ‘fundamental democratic procedural principle of adjudicating in two instances’ in the sphere of human rights and fundamental freedoms, including certainly ‘institutional two-instances’. Moreover, the characterization of the Constitutional Court’s decisions as ‘final and binding’ does not exempt the Constitutional Court as the supreme judicial institution from the obligation to be guardian of the Constitution, since the decisions of other bodies and institutions of Bosnia and Herzegovina have also that same characteristic [although after all they are subject to the jurisdiction of the Constitutional Court]”.

The Constitutional Court continued applying this practice to the institution that succeeded the Human Rights Chamber – the Human Rights Commission within the BiH Constitutional Court.³²⁶⁴ However, there were individual exceptions to this rule. For example, in Case No. AP 1236/05, the Court rejected an appeal as being ratione materiae (not ratione personae) inadmissible³²⁶⁵ despite a decision on the merits by the Human Rights Commission within the BiH Constitutional Court. Also, in Case No. AP 2486/05, the Constitutional Court ordered an interim measure whereupon it took a decision on the merits, although the Human Rights Commission within the BiH Constitutional Court had previously taken a decision on the merits whereby it determined precise legal redress.³²⁶⁶ The lack of competence to review the decisions of the Human Rights Chamber and Human Rights Commission applies regardless of whether a party who files an appeal with the Constitutional Court for an alleged violation of his/her subjective legal status, has already participated in the proceedings before the Human Rights Chamber or Commission.³²⁶⁷ A third person who has been affected by a decision of the Human Rights Chamber or Human Rights Commission has the right to institute proceedings before the competent authority in order to protect the rights which he/she claims to be entitled to. Following the exhaustion of legal remedies, the same case can be brought before the Constitutional Court, but the Constitutional Court cannot review the decision of the Human Rights Chamber or Human Rights Commission.³²⁶⁸

However, if the Human Rights Chamber or Human Rights Commission dealt only with the admissibility of a case, the appeal filed with the Constitutional Court can be declared admissible provided that all other requirements necessary to have a decision by the Constitutional Court have been met. For example, in Case No. AP 1170/05, the Constitutional Court rejected an appeal as prima facie ill-founded,³²⁶⁹ whereas the Human Rights Commission within the BiH Constitutional Court rejected the same appeal filed by the same person for failure to exhaust all legal remedies.³²⁷⁰ The same applies if the Human Rights Chamber or Human Rights Commission within the BiH Constitutional Court declares itself incompetent ratione materiae.³²⁷¹ However, if the Human Rights Chamber or Human Rights Commission rejects an application as being prima facie ill-founded, the Constitutional Court cannot take a decision on the same matter,³²⁷² since the inadmissibility declared on the grounds of manifest ill-foundedness contains, after a first summary examination, a quasi statement on the merits of the case. If the Human Rights Chamber and Human Rights Commission within the BiH Constitutional Court rejects as prima facie ill-founded an application against the second-instance judgment and the appellant, at a later point and regarding the same matter, challenges the judgement on the revision-appeal before the Constitutional Court, the Constitutional Court must first examine whether the decision on the revision-appeal amounted to a precise change in the case or not (the so-called nova producta). However, this is not the case if a decision on the revision-appeal has upheld in the second-instance judgment.³²⁷³

If both an application and appeal on the same matter are filed before the Human Rights Chamber, i.e., the Commission, and before the Constitutional Court at the same time, and if the Human Rights Chamber, i.e., the Commission, has not decided the application yet, then the Constitutional Court will decide the case only where the appeal had been filed before the application was filed with the Human Rights Chamber.³²⁷⁴