Comment

As Article II.1 of the BiH Constitution explicitly refers to Annex 6, and taking into account the fact that Article VI.3 of the BiH Constitution does not explicitly provide for a competence to establish human rights violations, it seems that a correct conclusion would be that the Human Rights Chamber, until the moment of admission of Bosnia and Herzegovina to the Council of Europe, was to be the last instance insofar as human rights protection was concerned. So Szasz as an insider in negotiations relating to the Human Rights Agreement sees the possibility for the Constitutional Court to deal with the ECHR only within the scope of its jurisdiction provided for in Article VI.3(c) of the BiH Constitution.³²⁸¹ The origin itself of the plan relating to the BiH Constitution and Annex 6 shows that the review of the Constitutional Court’s decisions by the Human Rights Chamber should not be possible, neither “in practice”³²⁸² nor in theory. The solution accepted finally in Dayton is different from the proposals discussed within previous various peace initiatives.³²⁸³ They provided for the clear supremacy of the Court of Human Rights. The Court of Human Rights was supposed to operate as a national court and the supreme review court dealing with human rights, including the review of decisions of the Constitutional Court, whose function would primarily be the resolution of disputes between different State authorities (the so-called organic disputes). The Court of Human Rights was supposed to operate in a special composition until the moment of admission of Bosnia and Herzegovina to the Council of Europe, at which point the European Court would assume that function.³²⁸⁴ In this context, Nowak saw the possibility of reviewing decisions of the BiH Constitutional Court by the Human Rights Chamber.³²⁸⁵ However, the difference in the applicable regulations becomes clear if we see the relation between the Constitutional Court and the Court of Human Rights which has never been established,³²⁸⁶ although it was provided for by the Constitution of the Federation of BiH. According to the Constitution of the Federation of BiH, the Court of Human Rights should have been integrated in the Constitution and should have had exclusive jurisdiction over human rights matters. Given such a system, the Constitutional Court of the Federation of BiH would have to refer issues to the Court of Human Rights and its decisions would have been binding upon the Constitutional Court of the Federation of BiH.³²⁸⁷ However, such organisation was not integrated in the BiH Constitution and the regulations relating to the Human Rights Chamber were excluded from the Constitution and were included in Annex 6.

In practice, both courts accepted the recommendation of the Venice Commission.³²⁸⁸ Given the applicable regulations, the BiH Constitutional Court rightfully declared itself competent to protect human rights as a part of the constitutional standards. The Constitutional Court is the upholder of the Constitution (Article VI.3 of the BiH ), and the court of instance providing redress in respect of constitutional matters (Article VI.3(b) of the BiH Constitution). Because of such a progressive interpretation, a dilemma about the competitive competencies has arisen, and the applicable regulations were of little use.

In this context, the Constitutional Court’s argument that the decisions of the Human Rights Chamber are final and binding is not convincing enough. The inflation of these terms, which occurred due to their frequent use in the Dayton Peace Agreement³²⁸⁹ and in the constitutions of the Entities,³²⁹⁰ leaves considerable room for interpretation. This formulation was probably supposed to describe the final character of the decision within a certain legal framework, thus to prevent the use of ordinary legal remedies, not the extraordinary legal remedies.

After all, a visible internationalisation of the protection of human rights is present in the decisions of the Constitutional Court and, as a conclusion deriving from this, a restriction of the competencies of the Constitutional Court when it comes to review. Otherwise, it would be difficult to understand why the Human Rights Chamber has been established by a special Annex. A textual link between these two Annexes can be found in the question of whether the Human Rights Chamber is “a court in Bosnia and Herzegovina”. Taking into account this formulation pointing to the attachment to a certain territory, it would be difficult not to consider the Human Rights Chamber as “a court in Bosnia and Herzegovina”, all the more so since the legislature knows and makes a clear distinction between this formulation and the formulation pointing to a connection to the institutions (“of Bosnia and Herzegovina”, Article VI.3(a) of the BiH Constitution). The conclusion that the Human Rights Chamber is not defined as a “court” in the Annex and that therefore it is not a court within the meaning of Article VI.3(b) of the BiH Constitution, although it performs the functions of a court, is not convincing enough. This linguistic argument, particularly in this context, cannot suspend the functional argument. In fact, the term “Chamber” was chosen in order to show the difference between the Human Rights Chamber and the “Human Rights Court“ in the Constitution of the BiH Federation. Finally, the argumentation that the Framer of the Constitution probably did not intend to leave the possibility for the Human Rights Chamber to “refer an issue” to the Constitutional Court so that the Human Rights Chamber can in no way be “a court in Bosnia and Herzegovina” within the meaning of Article VI.3(c) of the BiH Constitution and thus within the meaning of Article VI.3(b) of the BiH Constitution, is not sustainable either. When it comes to the Human Rights Chamber, there were no discussions on the possibility for the Human Rights Chamber to declare invalid the laws in case of violations of the ECHR and, particularly, in case of violation of the Constitution (which is not a direct standard or measure of examination for the Human Rights Chamber). This competence exclusively belongs to the Constitutional Court so that the “referral of issues” to the Constitutional Court by the Human Rights Chamber would truly make sense. Taking into account the teleological point of view, it is possible to apply a differentiated approach relating to the Human Rights Chamber without going into contradictions.

The review of the Human Rights Chamber’s decisions by the Constitutional Court under Article VI.3(b) of the BiH Constitution and vice versa is neither binding nor recommended because of the presence of international members both in the Human Rights Chamber and the Constitutional Court. On the other hand, cooperation between the Human Rights Chamber and the Constitutional Court in terms of referring issues to the Constitutional Court by the Human Rights Chamber within the meaning of Article VI.3(c) of the BiH Constitution would make sense in cases in which the violation of human rights has been committed because of an unconstitutional law, not a law contrary to the Convention. Instead of this, in cases in which the violation is based only on a law contrary to the Convention , the Human Rights Chamber could only order the parties to change their legal status.³²⁹¹ The Contracting Parties to Annex 6 often refused to comply with such orders given by the Human Rights Chamber, i.e., delays often occurred. On the other hand, by rendering judgments giving a time limit for harmonization under Article VI.3(c ) of the BiH Constitution, the Constitutional Court could, following the expiry of the time limit, change the legal situation by itself by direct annulment of the law being unconstitutional and contrary to the Convention, without any actions taken by the Contracting Parties to Annex 6.

Historical, systemic and teleological arguments apply to the same extent to the reverse situation – from the Constitutional Court to the Human Rights Chamber. However, the Human Rights Chamber avoided taking a final position in such a manner. Given the Constitutional Court’s practice, according to which it even protects human rights under Article II of the BiH Constitution, the presence of the international members of the Constitutional Court was to be taken into account, but also the procedural efficiency and respect for the Court which is rather a national court so that the Human Rights Chamber could not have a superior place compared to the Constitutional Court.

Given the overall situation, we must conclude that the parallelism of the mechanisms for the protection of human rights and freedoms did not have a harmful effect on their protection in Bosnia and Herzegovina. Quite the contrary, these courts complemented each other in the service of citizens, they motivated and inspired each other, being aware of the positive and negative sides. A strong international element present in the Human Rights Chamber during the early stages had significant importance, since it contributed to the prompt establishment of a court, highly competent to protect human rights, which enjoyed the confidence of citizens. Organizational impulses coming from the Human Rights Chamber and its own case-law were encouraging for the BiH Constitutional Court, whose activities had had from the very beginning a rather national character. The end of the activities of the Human Rights

Chamber provoked criticism by a number of persons, including the Human Rights Chamber ’s members themselves. However, given the fact that in a way the Human Rights Chamber continued existing within the BiH Constitutional Court by the transfer of its personnel and its case-law, we can say that it was a successful – much desired in other fields – exit strategy.