Court decision

According to Article VI.3(b), admissible subjects of dispute are in any case judgments of the courts in Bosnia and Herzegovina. By the term “judgment”, the Constitutional Court means all types of court decisions regardless of their form, such as the court‘s ruling by which the court replaces an administrative act.³¹⁶⁷ Regardless of the fact that this interpretation is serving a purpose, it is also covered by the linguistic interpretation of this provision, since the term judgment does not only relate to the judgment in the narrower sense of the term but in principle to all other court decisions.³¹⁶⁸

Admissible subjects of the dispute are also judgments of the constitutional courts’ of the Entities.³¹⁶⁹ In the view of the BiH Constitutional Court, there is no comprehensible and justified reason for not considering the constitutional courts of the Entities as “courts in Bosnia and Herzegovina”. Furthermore, the effectiveness of the appellate jurisdiction of the Constitutional Court would be considerably limited if an appeal could not be filed against the decisions of the Constitutional Courts of the Entities either.³¹⁷⁰ In Case No. U 5/99, the subject of an appeal filed by the Posavina Canton was a dispute between the Posavina Canton and the Federation. The Posavina Canton lost the case. In the proceedings before the BiH Constitutional Court, the Canton referred to the supremacy of the State Constitution over the Constitution of the Federation (Article III.3(b) of the BiH Constitution) and the “continuation of laws” under Annex II.2 and 3 to the BiH Constitution. According to Annex II.2 and 3 to the BiH Constitution, all laws, regulations, and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina (paragraph 2). The same applies to the proceedings in courts, which were pending at that moment (paragraph 3). The Constitutional Court “was hitting something beyond its target”, by establishing the unconstitutionality of Article 78 of the Constitution of the Canton – it should only have established the unconstitutionality of the judgment of the Constitutional Court of the Federation of BiH. Taking this into account, the principle of prohibition of arbitrariness should apply, which is generally applicable to the review of lower- instance judgments.³¹⁷¹ In Case No. U 39/00, the Constitutional Court limited its examination to the consistency of the decision of the FBiH Constitutional Court with the BiH Constitution, and did not examine the issue of to what extent the linguistic differences between the Constitution of the Canton and the FBiH Constitution are consistent with the latter one. The Constitutional Court correctly left out the consideration of the issue as to whether the linguistic differences were consistent with the BiH Constitution.

In a separate opinion, Judge Arsović, expressed the view that the Constitutional Court is not generally called upon to review the decisions of the constitutional courts of the Entities, since these are not the “courts” within the meaning of the BiH Constitution. Their mandate and essence differ considerably from the ordinary lower-instance courts. Therefore, the “constitutional court” is not a “court”, since it cannot exist at all without the label “constitutional”. Furthermore, subordinating the constitutional courts of the Entities under the control of the Constitutional Court does not correspond to the State structure of Bosnia and Herzegovina. Moreover, a judgment of the constitutional courts of the Entity cannot be in violation of the BiH Constitution, since these courts have the obligation to make decisions in accordance with the Entities’ constitutions. Finally, the Constitutional Court, within its jurisdiction under Article VI.3(a) and (c) of the BiH Constitution, may uphold the BiH Constitution at a sufficient extent.

The attempt of the separate opinion to reduce the provision of Article VI.3(b) of the BiH Constitution, which is broadly conceived in linguistic terms, by the teleological interpretation fails. It also fails because of the fact that the BiH Constitution imposes an obligation on the overall State power, either at the State level or at the Entity level, to respect human rights and constitutional obligations. This “link” is an expression and indispensable prerequisite for the federal structure of the State. Taking this into account, the hypothesis that the constitutional courts of the Entities should be excluded from the term “any court in Bosnia and Herzegovina” (either under Article VI.3(b), or under Article II.6 of the BiH Constitution), is not convincing despite the respect for the particularities of that branch of judicial power.

It is difficult to find an answer to the question as to how and to which extent the Constitutional Court may declare an appeal admissible in the case of a violation of the right of access to court or a violation of the right to a fair trial within a reasonable time if there is not “a judgment of any other court in Bosnia and Herzegovina”. Furthermore, the same question relates to appeals against other acts of public authorities, such as administrative acts or laws. According to the linguistic meaning, Article VI.3(b) of the BiH Constitution does not indicate the silence of the judicial power or authorities other than courts, or the acts of other public authorities other than judicial authorities. It seems that the wording, according to which the Constitutional Court “shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina”, imposes limitations on the Constitutional Court in terms of confining itself to taking court decisions. Taking this into account, the term itself “appellate jurisdiction”, which was chosen by the Constitutional Court, taking into account the linguistic meaning of the provisions of Article VI.3(b) is not quite correct. Dietl/Lorenz translates “appellate jurisdiction” as a competence at the appellate instance, thus making a distinction from the “original jurisdiction”. This means that the Constitutional Court could never declare an appeal admissible and decide it if the previous lower-instance court had not decided the same matter. In other words, if a judgment is lacking, there is no “subject of the dispute”. This could have double significance: on the one hand, proceedings before the Constitutional Court could never be instituted if there was not an effective legal remedy against the act of the public authority (impossibility of access to a court), or the length of the proceedings would be unreasonably excessive; on the other hand, as to the wording “judgment of any other court in Bosnia and Herzegovina”, the BiH Constitutional Court, according to Article VI.3(b) of the BiH Constitution, could never deal with the acts of administrative authorities or the constitutionality of laws.

The text which follows deals with the extent to which the Constitutional Court moved away from a strict linguistic interpretation of the provisions of Article VI.3(b) of the BiH Constitution in order to make it possible for the Constitutional Court’s case-law to develop.