Setting priorities

Article VIII.2(e) of Annex 6 allows the Human Rights Chamber, in accepting and dealing with applications, to give priority to the cases relating to particularly severe or systemic violations or to the cases relating to violations of the prohibition of discrimination. Therefore, in addition to the usual requirements to be fulfilled in order to decide a case, the Human Rights Chamber included a filter for evaluation of purposefulness (Opportunitätsfilter) as an accessory means. The Human Rights Chamber needed all of this in order to correctly lay emphasis on its jurisprudence to serve the performance of its mandate as well as possible. In that way, the Human Rights Chamber has provided an instrument enabling it to use its resources for a purpose, instead of being a “slave” to the chronological order of applications in deciding the allegations on the violations of human rights and fundamental freedoms. The discretion provided in this way was reinforced by Article VIII.3 of Annex 6. According to Article VIII.3, the Human Rights Chamber may at any point in its proceedings decide to suspend consideration of, reject or strike out an application on the ground not only that the applicant does not intend to pursue his application

(a) but also when the matter has been resolved; (b) or for any other reason established by the Human Rights Chamber it is no longer justified to continue the examination of the application; (c) provided that all of this is consistent with the objectives regulating issues of human rights.

Because of this room for manoeuvre, the following used to happen in practice: when processing the received applications, the Human Rights Chamber made efforts to harmonise the main purpose of human rights protection, i.e., justice for each particular case for a high purpose, which is the improvement of the overall situation in the field of human rights and freedoms in the country. The jurisprudence of the Human Rights Chamber has shown that sometimes the efforts to achieve both aims do not have to go together. In the beginning, the Human Rights Chamber had a wide-range of competences on paper but had neither a good nor a bad reputation. It was necessary to gain the citizens’ trust. This was the reason why the Human Rights Chamber fought for every complaint and generously used to turn a blind eye to all deficiencies relating to admissibility. However, shortly afterwards, it had to employ another method of work, that is, filtration and leading decisions (decisions of first impression) and merging similar applications. Wherever possible, the Human Rights Chamber even used to discontinue proceedings by pointing to leading decisions. All of this was done with the aim of reaching justice for individuals, and the Human Rights Chamber wanted to leave available resources for other more significant proceedings in order to have better final results in the field of human rights protection than it would have had if it had meticulously treated each particular case.³³²⁰

Defining such focal points of the work was possible and necessary. In particular, in post-war Bosnia and Herzegovina, systematic human rights violations occurred in certain matters such as the repossession of property or the search for missing people. Their cause could be removed only by orders to enforce legislative or institutional corrections with the aim of resolving at one stroke a series of individual appeals. However, such conduct caused a number of difficult and burdening situations.³³²¹ In the “Srebrenica cases”, the Human

Rights Chamber took a leading decision³³²² to provide a redress (construction of a memorial centre, but not individual damage compensation) which rendered impossible any further individual assistance for the applicants which addressed the Human Rights Chamber at a later point.³³²³ A dilemma regarding such a manner of work in the field of human rights, whose primary aim is the improvement of the overall situation, becomes clear if we question to what extent any decision upon subsequent similar applications was legitimate at all, since the leading decision has already been taken. If it is well known that the length of judicial proceedings must not be excessive within the meaning of Article 6, paragraph 1 of the ECHR, why then establish something in another series of individual cases? The first reason for establishing the violation in each particular case is the discrepancy between regulations on paper, on the one hand, and reality on the other hand. The other reason is the fact that in the end each particular case is different from the previous one at least to some extent so that every case deserves particular consideration. Finally, the repetitive establishment of violations of human rights in a number of individual cases finally results in a change of consciousness and the development of respect for human rights by those responsible and competent.

Unlike the Human Rights Chamber, with a time limited mandate, the BiH Constitutional Court has a justified reason why it cannot rely on an adequate rule of purposefulness in its jurisprudence (Opportunitätsregeln) but it is obliged to effectuate justice for each individual case. This is a durable and long-term mandate that the Constitutional Court does meet.³³²⁴ However, the Court has the advantage, since it may act as an immediate corrective through the power of its competencies, by placing itself in the constitutional framework and, if necessary, by directly declaring invalid (the Constitutional Court’s jurisdiction to declare laws invalid) the laws violating human rights of several persons instead of obliging the legislature to make corrections, as the Human Rights Chamber used to do. After an initial hesitation, the Court extended the possibility under Article VI.3(a) and (c) of the BiH Constitution to Article VI.3(b) of the BiH Constitution by declaring itself competent to examine, within the concrete control (review), norms which are contrary to constitutional human rights and freedoms not only by acting in each individual case but also by declaring null and void, if necessary, the same norms.³³²⁵