Ratione materiae competence

According to Article 16, paragraph 4, item 8 of the applicable Rules of the BiH Constitutional Court, an appeal is inadmissible if it is incompatible ratione materiae with the BiH Constitution. It is necessary to examine in each particular case whether the issue raised in the appeal is included in the realm of protection of one of the constitutional rights and freedoms or other constitutional rights.³¹⁵⁸

As to the appellate potential (Rügepotential), which means those constitutional norms of which the appellant may generally complain, Article VI.3(b) points to a significant difference between Article 93.I No. 4a of the German Basic Law and Article 34 of the ECHR. In any case, the appellate potential is not limited to human rights and fundamental freedoms under the BiH Constitution; Article VI.3(b) of the BiH Constitution relates, “over issues under this Constitution”. The appellant, by putting the matters like this, may in principle make an allegation of a violation of any norm, except a norm under the Constitutions of the Entities.³¹⁵⁹ One can find no restrictions in the Constitutional Court’s case- law developed so far. As to the appeals, the appellate potential, set so broadly, ultimately does not go far beyond the appellate potential which the Federal German Court has developed by interpreting the notion of general freedom of action (Article 2.I of the Basic Law) through its case-law.³¹⁶⁰ Based on the case-law, the individual is authorised to file a constitutional appeal, i.e., the constitutional appeal is admissible only if it finds a violation of constitutional rights and freedoms such as those enumerated in Article 93.I no.4a of the Basic Law. However, the general freedom of action is also included in these rights. It is violated every time the law puts limitations on basic rights or similar rights or, generally, the Constitution, if it violates the principle of the legal state or provisions relating to distribution of responsibilities relating to legislative activity. The same principle applies to constitutional appeals against court judgments, although the Federal Constitutional Court is limited to the examination of arbitrariness (Willkürverbot).³¹⁶¹

As to the application’s compatibility ratione materiae with human rights and freedoms (Annex 6), the Chamber, in accordance with Article VIII.2(c), considers, inter alia, whether the alleged violations are possible at all, and thus whether the alleged right is guaranteed by Annex 6 and whether it is included in the field of protection of a right.³¹⁶² Taking into account the relatively different appellate potentials of the rights and freedoms under the BiH Constitution and Annex 6, it is possible that an application is incompatible ratione materiae with Annex 6, whereas appeals with the Constitutional Court, with the same complaints, are admissible ratione materiae.³¹⁶³ The Constitutional Court and the Human Rights Commission within the BiH Constitutional Court have set different standards so that the scope of application of human rights and fundamental freedoms is different, which has a direct impact on the issue of ratione materiae admissibility of certain appeals.³¹⁶⁴

A person who files an application before the Human Rights Chamber or the Human Rights Commission within the BiH Constitutional Court must allege a violation of the rights guaranteed by Annex 6 of the GFAP. In case he/she fails to do so, the application is in principle inadmissible ratione materiae. Nevertheless, in examining possible violations of Annex 6, the Chamber does not consider itself bound by the allegations of the parties to the proceedings, but, in the event there are precise reasons, it also examines propio motu possible violations of the rights other than those alleged by the applicant. The admissibility of the application is precisely determined in this respect.³¹⁶⁵

The allegations of violations of rights and freedoms provided for by international mechanisms for the protection of human rights and freedoms, which are indicated in the Appendix to Annex 6 of the GFAP (for example, the rights to work, just remuneration, adequate housing situation, etc.), without an applicant’s allegations of discrimination in enjoyment of these rights, are always incompatible ratione materiae with Annex 6.³¹⁶⁶