iv. Laws and other norms

As to the admissibility of the appeals filed against laws and other norms, the Constitutional Court had taken a view on it only indirectly or in an obiter dictum form. As we have explained above,³¹⁷⁸ the Constitutional Court rejects requests of private and physical persons for abstract control (review) of constitutionality under Article VI.3(a) of the BiH Constitution without dealing with such requests under Article VI.3(b) of the BiH Constitution. Similarly, in such cases, the Constitutional Court tersely decides that there is no “judgment of a court in Bosnia and Herzegovina”. However, the Constitutional Court has taken the view in an obiter dictum several times that it may act under its appellate jurisdiction provided for in Article VI.3(a) of the BiH Constitution only after the disputable issue has been challenged in another proceedings in which, indeed, all legal remedies have been exhausted.³¹⁷⁹

This points to the fact that the Constitutional Court is not strictly limited to the court decision when it comes to the subject of disputes. The mentioned decisions could also be interpreted as obliging the appellant first to institute proceedings before the ordinary courts in cases of appeals against laws and other norms. However, it is generally known that there is no court competent to act upon an action against laws. Nevertheless, an individual could be required to reach an individual legal act based on the disputable law and norm which could be the subject of judicial proceedings. In that case, the court could be incited to institute proceedings of concrete (incidental) control of constitutionality under Article VI.3(c) of the BiH Constitution, or the individual could, after the exhaustion of all legal remedies, challenge the final decision before the Constitutional Court by claiming that the individual legal act is based on an unconstitutional law. The Constitutional Court would then, within the court dispute, examine the challenged law provision in accordance with the standards laid down in the BiH Constitution. In that case, Article VI.3(b) of the BiH Constitution could be understood as a special reflection of the principle of exhaustion of legal remedies and principle of subsidiarity. Unlike Article VIII.2(a) of Annex 6 of the of the GFAP relating to the Human Rights Chamber, the BiH Constitution does not stipulate the obligation of exhausting the legal remedies.

This obligation can be found in Article 16, paragraph 1 of the applicable Rules of the BiH Constitution. This provision stipulates, inter alia, that the “Court shall examine an appeal only if all effective remedies that are available under the law against a judgment or decision challenged by the appeal are exhausted”. The view that the Constitutional Court must not undermine the competence of the ordinary courts in terms of remedial possibilities of legal means is behind this provision. Besides, the Constitutional Court should be given the possibility to evaluate the case based on the conducted proceedings, established facts, and legal assessments by the ordinary courts, since in any case this provides guarantees for a fair and legal decision.

It remains to examine whether the interpretation of the provisions of Article VI.3(b) of the BiH Constitution extending the scope of possible subjects of dispute to the laws, i.e., would it be in conflict with Article VI.3(a) and (c) of the BiH Constitution. According to these latter ones, only certain authorities or their parts, i.e., the courts, are authorised to, inter alia, request the Constitutional Court to review legal norms. A contrario, we come to the conclusion that the individuals are not “armed” with this right. Such conclusion, however, is not indispensable. Even if an individual had the right to challenge the constitutionality of norms and laws before the Constitutional Court under the appellate jurisdiction, there is a significant difference between these provisions. Based on the described principle of subsidiarity, an individual is authorised to challenge the constitutionality of a norm only indirectly, within a particular legal dispute. Only if waiting for the final decision placed an “excessive burden” on him, one may address the Constitutional Court and directly request the review of the constitutionality of the norm. Article VI.3(a) and (c) of the BiH Constitution secures to certain authorities and their parts privileged access to the Constitutional Court; that principle is generally subject to the principle of exhaustion of legal remedies and, particularly, to the principle of subsidiarity when it comes to legal norms. If we take account of this principle, a broader interpretation of the provisions of Article VI.3(b) of the BiH Constitution, which is, finally, friendly-minded towards the principle of protection of human rights, is not in conflict with other constitutional norms relating to the competencies.

In Case No. U 22/02, the appellant, referring to Article VI.3(c) of the BiH Constitution, challenged a decision of the Supreme Court of the Republika Srpska, whereby a request for a review of the constitutionality of the provisions of the Statute of the Town of Banja Luka was dismissed. Article VI.3(c) of the BiH Constitution was obviously the wrong legal mechanism. Nevertheless, the Constitutional Court considered the request as an appeal under Article VI.3(b) of the BiH Constitution. However, the reasons for admissibility of the appeal were in a way confusing.³¹⁸⁰ In particular, according to the Constitutional Court’s reasoning, the applicant submitted no evidence proving that the implementation of the Statute had affected her rights guaranteed by the BiH Constitution, while, at the same time, she had no possibility of availing herself of any effective and adequate legal remedy in the competent authorities of the Republika Srpska. A contrario conclusion would mean: if the applicant was directly affected by the implementation of the Statute, without having the possibility of availing herself of an effective and adequate legal remedy in the competent authorities of the Republika Srpska, she could challenge the constitutionality of the Statute under Article VI.3(b) of the BiH Constitution. However, the Constitutional Court of BiH has given further reasoning by stating: “In the present case, the Constitutional Court cannot consider the decision of the Constitutional Court of the Republika Srpska as an adequate and effective legal remedy nor can it consider it as a ‘judgment’ under Article VI.3(b) of the Constitution of Bosnia and Herzegovina, since a contrary interpretation of the rule of exhaustion of legal remedies under Article 11, paragraph 3 of the Rules of the Constitutional Court, in conjunction with Article VI.3(b) of the Constitution of Bosnia and Herzegovina, would lead to the avoidance of limitations as to the authorised persons to initiate proceedings of abstract control of constitutionality under Article VI.3(a) of the Constitution of Bosnia and Herzegovina”. It thus follows that an individual in no way has the right to challenge the constitutionality of laws and other general legal acts. This contradiction, at first sight, could be resolved only by making a distinction between the abstract and concrete controls (reviews) of constitutionality: while the abstract control of constitutionality is reserved for the authorities or their parts enumerated in Article VI.3(b) of the BiH Constitution, an individual may initiate proceedings of concrete control of constitutionality under Article VI.3(b) of the BiH Constitution only if he/she is directly affected by that legal norm (legal interest), if he/she has no effective and adequate legal remedy at his/her disposal or – according to the German legal theory – if he/she is not expected to reach a final individual legal act (since that would be an excessive burden imposed for him/her) based on which he/she could directly challenge the constitutionality of the applicable norm.

In the later case-law, the Constitutional Court tried to give an answer to the question of legal possibilities for individuals in the particular court proceedings, if he/she considers that the cause of a violation of his/her constitutional rights and freedoms is directly an unconstitutional law. In Case No. U 19/00, the Constitutional Court established that the Law on Minor Offences of the Republika Srpska was not compatible with Article 6 of the ECHR, since it did not provide, at least at one instance, an effective legal remedy within the meaning of the right to a fair trial. The result of the decision of the Constitutional Court was a referral of the case back to the Supreme Court of the Republika Srpska, which was ordered to conduct fair proceedings based directly on the standards laid down in Article 6 of the ECHR, although there were no legal grounds for it.³¹⁸¹ Therefore, one may conclude that an individual has the right to raise the issue of the unconstitutionality of a norm in the proceedings so as to request the competent court/authority to directly apply the relevant provisions of the BiH Constitution in order to redress the violation of the constitutional rights and freedoms, which has not been caused by the application of the law but the law itself. The aforementioned reasoning implies the obligation for the individual to exhaust all effective legal remedies. This court practice was confirmed three years later in Case No. 106/03.³¹⁸² However, in that case, the Constitutional Court added a further conclusion. In particular, the Constitutional Court noted that the BiH Constitution is the supreme legal act of the State,³¹⁸³ which has obligatory force not only for the administrative power as a whole, including executive power, but also the judicial and legislative powers. According to Article VI.1 of the BiH Constitution, the Constitutional Court must uphold the Constitution. When facing the problem of the inconsistency of applicable legal norms with the BiH Constitution, the competent courts have the obligation to institute proceedings for a concrete control (review) of constitutionality. In doing so, they have discretion to assess whether the law is an unconstitutional one, but they do not have discretion to decide whether they will institute proceedings before the Constitutional Court within the meaning of Article VI.3(c) of the BiH Constitution. In other words, the courts are obliged to apply the Constitution of Bosnia and Herzegovina in each particular case and, in doing so, to be mindful of the consistency of general legal acts with the supreme legal act of the State, i.e., the Constitution of Bosnia and Herzegovina. In that way the courts control the lawfulness in the country, which is one of the basic functions and obligations deriving from the principle of the legal state as its inherent element (Article I.2 of the BiH Constitution).³¹⁸⁴ However, this additional reasoning of the Constitutional Court appears to be confusing, taking into account a previous conclusion in the same decision. In particular, taking into account the view taken by the competent court, on the one hand it is not technically feasible to decide the case directly based on the BiH Constitution (as the Court holds that the relevant law norm is not constitutional) and on the other hand, to have an obligation to institute the proceedings of concrete control (review) of constitutionality under Article VI.3(c) of the BiH Constitution. These two possibilities exclude one another, if they are not alternative but obligatory solutions. This precise inconsistency was presented and rectified in Case No. 1603/05. In particular, the Constitutional Court decided to apply an interpretation in the spirit of legal unity so that it made clear that the ordinary courts have the obligation to apply positive legal regulations. If they have a doubt about the constitutionality of an applicable legal norm, they must, because of legal certainty, “refer the issue” to the Constitutional Court within the meaning of Article VI.3(c) of the BiH Constitution.³¹⁸⁵ Although the Constitutional Court did not say anything about it, one should take as a starting point the fact that the ordinary courts, during the proceedings for review of the constitutionality of a norm under Article VI.3(c) of the BiH Constitution, should discontinue the proceedings.³¹⁸⁶

If nothing else, this case-law has clearly established that an individual must exhaust all legal remedies even if he/she considers that the legal grounds for his/her case are unconstitutional. It is possible that in the course of these proceedings, the proceedings of a concrete control (review) of constitutionality under Article VI.3(c) are initiated, which leads to the Constitutional Court. If it turns out that this legal way as a whole is ineffective, it remains to file an appeal with the Constitutional Court under Article VI.3(b) of the BiH Constitution, which shall decide the constitutionality of that norm as well. It is to be noted that the Constitutional Court has not clearly established yet the manner in which possible unconstitutionality would be established (in enacting a clause or only through the reasoning, with or without ex officio application of Article VI.3(c) of the BiH Constitution).