ii. “Silence”, the courts’ failure to act

Taking into account Article 6, paragraph 1 of the ECHR, the Constitutional Court has correctly extended the meaning of Article VI.3(b) of the BiH Constitution to the cases in which a court has failed to take a decision, while the appellant alleges that his/her constitutional rights and freedoms have been violated.³¹⁷² Therefore, if a court fails to act upon a claim, i.e., lawsuit, although Article 6, paragraph 1 of the ECHR imposes such an obligation on it, the lack of a judgment does not create an obstacle to addressing the Constitutional Court. Therefore, the Constitutional Court, taking into account the obligation of respecting the right of access to court (Article 6, paragraph 1 of the ECHR) and the constitutional order imposing an effective protection of human rights (Article VI.3, first sentence thereof, in conjunction with Article II.2 and 3 of the BiH Constitution), filled a clear legal lacunae in Article VI.3(b) of the BiH Constitution.³¹⁷³ By doing so, the Court further gave itself the right to have original jurisdiction, if it is necessary to effectively protect human rights and freedoms.

In Case No. U 23/00, the first-instance court discontinued the court proceedings based on a general administrative act issued by the Government. The act of the Government was in fact an order to discontinue all court proceedings in the field of insurance pending a decision to resolve the issue of a legal successor. Taking into account the reasons for the discontinuation of the proceedings, the Constitutional Court did not request the appellant to exhaust also the appeal against the ruling on discontinuation of the proceedings in order to enable continuation of the proceedings. The Constitutional Court therefore considered that legal remedy to be ineffective.

By taking this decision, the Constitutional Court satisfied the recommendations of the Venice Commission which, in respect of the obligation of transferring the competence from the Human Rights Chamber to the Constitutional Court, was an advocate of the extensive interpretation of Article VI.3(b) of the BiH Constitution..³¹⁷⁴ In order to maintain the same level of protection of human rights and freedoms in Bosnia and Herzegovina following the end of the term of the Chamber, the appellate jurisdiction under Article VI.3(b) of the BiH Constitution should be interpreted as giving the Constitutional Court the competence to decide a case in the event there is no court protection at a lower instance.³¹⁷⁵