Res iudicata, anonymity and other cases of pending proceedings (lis alibi pendens)

Res iudicata exists if the Constitutional Court has already decided the issue concerned, and the statements and evidence from the appeal do not provide sufficient grounds for a new decision (Article 16, paragraph 4, item 6 of the applicable Rules of the BiH Constitutional Court). Article VIII.3(b) of Annex 6 provides for a similar provision.

The ideal of the res iudicata mechanism does not fully correspond to Article 16, paragraph 4, item 6 of the applicable Rules of the BiH Constitutional Court, since this admissibility requirement does not necessarily imply a decision on the merits. Furthermore, in case of an adoption of an admissibility decision whereby an appeal is rejected on formal grounds, since it does not meet the admissibility requirements (exhaustion of legal remedies³¹³⁴ or expiry of the time limit³¹³⁵), a new appeal shall be declared inadmissible if the appellant does not submit new evidence or allegations which would justify the adoption of a new decision by the court.

According to Article VIII.2(b) of Annex 6, the Chamber “shall not address any application which is substantially the same as a matter which has already been examined by the Chamber or has already been submitted to another procedure or international investigation or settlement.” Besides, according to Article VIII.2(d), the Chamber may “reject or defer further consideration if the application concerns a matter currently pending before any other international human rights body responsible for the adjudication of applications or the decision of cases, or any other Commission established by the Annexes to the General Framework Agreement.” This provision incorporates three different and partially overlapping prerequisites for taking a decision on the merits. These prerequisites serve first of all to economise the proceedings and to avoid taking contradictory decisions by parallel judicial institutions or judicial institutions at the same level.³¹³⁶

Article VIII.2(b) of Annex 6 contains the res iudicata principle. According to this principle, the Court cannot decide a case about which another competent court has already taken a legally binding decision on the merits. However, if the matter is the same, but the parties to the proceedings are not the same, the Chamber is not prevented from taking a new decision on the merits.³¹³⁷

Taking into account that Article VIII.2(b) of Annex 6 relies on Article 35.II(b) of the ECHR, the Chamber refers to the relevant case-law of the European Commission for Human Rights according to which the case relates to a “substantially same application” if, inter alia, the applicant in the other international procedure was identical to the one that had introduced a petition to the European Commission for Human Rights.³¹³⁸ The case is substantially the same if the Chamber already examined another case with the identical parties to the proceedings, subject and claim within the application.³¹³⁹ “Another procedure or international investigation or settlement” mentioned in Article VIII.2(b) of Annex 6 should be interpreted in light of the whole of Article VIII, particularly Article VIII.2(d), according to which the “procedure” includes the procedure provided for by different international mechanisms than that provided for by the GFAP. Consequently, this provision does not include the proceedings before the Ombudsman under Annex 6.³¹⁴⁰

The principle of dispute elsewhere pending (lis alibi pendens), which is incorporated in Article VIII.2(d) of Annex 6 prevents the person who has already initiated proceedings against a legal person from initiating identical proceedings against the same person before another court.³¹⁴¹ Unlike Article VIII.2(b), which directly prevents the Chamber, in fulfilling the prescribed requirements, from taking a decision on the merits (“shall”), item (d) makes it possible for the Chamber to have a certain margin of appreciation (“may reject or defer”).³¹⁴² Furthermore, Article VIII.2(d), unlike item (b), relates to the body provided for by the GFAP; accordingly, in each particular case, the Chamber has the discretion to freely decide whether it shall take a parallel decision, which means an additional decision to that already taken by another body.³¹⁴³

In the event that another commission within the meaning of Article VIII.2(d), (for example, CRPC) has already taken a decision, the case is not “pending” any more within the meaning of that provision, so that the Chamber is not prevented any more from taking a decision on the merits.³¹⁴⁴ A report of the Ombudsman under Annex 6 contains in fact recommendations which are not legally binding upon the parties, nor can they become final and legally binding. If the parties do not comply with the recommendations, the Ombudsman may forward its report to the High Representative and Presidency of the signatory parties of Annex 6 for further action. The Ombudsman may also initiate proceedings before the Human Rights Chamber, but this action is discretionary.³¹⁴⁵The reports of the Ombudsman do not prevent the Chamber itself from taking a decision on the same matter.³¹⁴⁶ In the cases where the same applications were brought both before the Chamber and the CRPC, i.e., the Commission to Preserve National Monuments (Annex 8), the Chamber declared the application admissible if the application was different from that brought before the CRPC, i.e., the Commission to Preserve National Monuments.³¹⁴⁷

Neither Article VIII.2(b), nor Article VIII.2(d) of Annex 6 prevent the Chamber from taking a decision on the merits if the Commission to Preserve National Monuments from Annex 8 of the GFAP orders preservation of a building and adopts adequate recommendations, since this Commission is not competent to establish violations of human rights and freedoms, nor did this Commission, insofar as the case of the Ferhadija Mosque is concerned, deal with these issues.³¹⁴⁸ This also applies to the responsible bodies for the search of missing persons process under Article V of Annex 7 of the GFAP, the State Commission for Missing Persons and the International Committee of the Red Cross.³¹⁴⁹

Unlike the ICTY, the Chamber does not decide on individual criminal responsibility for serious violations of humanitarian law, but it decides issues as to whether one or more signatory Parties to Annex 6, after the entry into force of the agreements on human rights and fundamental freedoms, is/are responsible for violations of human rights and fundamental freedoms guaranteed by that Agreement. In theoretical terms, even if the overlap of jurisdictions could occur, as to, for example, whether the parties violated the so-called Rules of the Road,³¹⁵⁰ or whether a court was not independent and impartial, the jurisdictions are completely different and serve a different purpose.³¹⁵¹