Obligation to submit a request

It cannot be interpreted in a simple way whether, except for the authorisation to submit a request, the ordinary courts have the obligation to refer the issues under Article VI.3(c) of the BiH Constitution. At the beginning, the Constitutional Court supported the opinion that the State authorities, including the courts, due to the supremacy of the BiH Constitution, should simply disregard an ordinary positive law, which, in their opinion, is unconstitutional, and directly invoke the BiH Constitution and adjudicate the matter. In that way, the courts would preserve lawfulness, which is one of the judiciary’s major functions and obligations in accordance with the principles of the legal state. Moreover, according to the opinion of the BiH Constitutional Court, in the event of reasonable doubt concerning the constitutionality of a law which should be applied to a specific case, the courts are under an obligation to initiate a procedure of concrete/incidental review of constitutionality as provided for under Article VI.3(c) of the BiH Constitution.³⁵⁴⁶

The abovementioned standpoint was subsequently modified by the Court.³⁵⁴⁷ Namely, the Constitutional Court continues supporting the opinion that ordinary courts, due to the normative-hierarchical supremacy of the BiH Constitution, should not apply unconstitutional ordinary law. However, an ordinary court must, by itself, submit the disputed norm to review. If, upon the conducted analysis, the court concludes that a norm of ordinary law is in accordance with the Constitution, the court will apply that norm in the relevant case. However, if the court arrives at a conclusion that the mentioned norm is unconstitutional, then it must not simply disregard it by invoking the Constitution. That court must refer the issue of the norm’s constitutionality to the BiH Constitutional Court to take a decision in accordance with Article VI.3(c) of the BiH Constitution.³⁵⁴⁸

During that time – although the Constitutional Court has given no clear opinion about this issue – the proceedings before the lower court should be suspended pending the decision of the Constitutional Court of BiH. Hence, it remains unclear whether an ordinary court may simply disregard the norm of ordinary law deemed to be unconstitutional and decide the case directly on the basis of the BiH Constitution without referring that issue of the norm’s constitutionality to the Constitutional Court of BiH. Clear regulation, such as Article 100 of the German Basic Law (Constitution), does not exist in the BiH Constitution. Article 100 of the German Basic Law regulates the so-called constitutional monopoly to the benefit of the German Constitutional Court. The purpose and meaning of that norm lies in the fact that the Federal Constitutional Court should be given the last word in the interpretation of the Constitution’s text. Contradictory interpretations of the constitutional text must be avoided for the purpose of legal unity and legal certainty and lower courts must not be given the possibility to be placed above the will of the legislature.³⁵⁴⁹

Given that a similar norm does not exist in BiH, the solution should be found in the existing constitutional framework. The supremacy of the Constitution (Article III.3(b), the first sentence of the BiH Constitution) and, in this case, the principle of legal certainty (as a part of the principle of the legal state according to Article I.2 of the BiH Constitution) is a decisive argument in the interpretation. In specific judicial cases where adjudication is conducted on the rights and freedoms safeguarded under the ECHR, the opinion is partially supported that ordinary courts, due to the so-called direct application of the ECHR, may, based on the ECHR, adjudicate the relevant case directly, even if failing to comply with the ordinary domestic law which is in contravention of the Convention. Moreover, the mentioned courts are not obliged to refer to the Constitutional Court the issue relating to the compatibility of the norm under ordinary law with the ECHR, which means that they do not need to wait for the decision of the Constitutional Court. Otherwise, this “direct applicability” would be irrelevant, i.e., the question of its purposefulness would arise.

However, this conclusion cannot directly be drawn from the obligation of direct application of the ECHR, which is imposed by the BiH Constitution. Direct application of the rights from the ECHR, according to Article II.2 of the BiH Constitution, means as follows: in order to apply those rights and freedoms in BiH, no legal basis is required on the part of the legislature such as is the case with other conventions under international law. Therefore, it should be examined whether the norm, whose application will result in a decision on dispute, is indeed in accordance with the ECHR.

It is another issue whether the courts may simply by-pass the ordinary law which they consider to be in contravention of the ECHR without referring that issue to the Constitutional Court, which should adopt a relevant decision. If this rule would apply to the ECHR, it should apply to all other constitutional norms as well. It is because the Constitution is directly applicable in the whole territory of the State and, accordingly, in the territory of Entities. The BiH Constitution suppresses lower norms which are in contravention of the Constitution (Article III.3(b), the first sentence of the BiH Constitution). The effectiveness of the BiH Constitution and constitutional rights and freedoms from the very catalogue of the BiH Constitution or the ECHR or international agreements under Annex 1 to the BiH Constitution is not dependant on whether the lower courts should wait for the decision of the BiH Constitutional Court, i.e., it has no direct significance for the effectiveness of the BiH Constitutional Court. Generally speaking, the effectiveness depends on whether the higher ranked law is respected, which, in some disputable case may eventually lead to non-application of some norm after the suspension of the proceedings and referring the case to the Constitutional Court. However, in some cases urgent action is required. In such cases the injured party may seek, even from the Constitutional Court, the issuance of an interim measure.

It is true that the protection of human rights in a concrete, individual case would be more effective or at least faster if ordinary courts, without waiting for the adoption of the decision by the Constitutional Court, would simply by-pass an ordinary law which is inconsistent with the Constitution or the ECHR. However, such an interpretation would raise doubts for a number of reasons: On the one hand, as to the referred cases where the Constitutional Court would find that the disputed norm is consistent with the ECHR, the procedural issues would arise and it would be hard to resolve them. The legally binding decisions could be altered only in the renewed proceedings. On the other hand, the lower courts might be tempted not to refer the disputable issues to the Constitutional Court. Namely, the lower courts, independent of the decisions of the Constitutional Court, would be able to finalise the proceedings by respecting and directly applying the ECHR. However, such an approach might have undesirable effects: a norm that is contrary to the ECHR would remain in force and be applied to other cases. Only by ensuring the monopoly of the Constitutional Court would it be possible to prevent different, even contradictory interpretations of the same norm and ensure legal unity and legal certainty. It is in BiH where the aspect of legal unity has its major significance, given the fact that within the judicial system of BiH, except for the Constitutional Court of BiH, there is no supreme reviewing judicial instance at the State level which would take care of a unified application of the same norms in the Entities.

For all the above reasons, the solution presented in the decision of the Constitutional Court No. U 106/03 is not convincing since that decision gives implications of different treatment depending on whether the disputed norm is in violation of the BiH Constitution or the ECHR. The BiH Constitution is neither more nor less applicable in Bosnia and Herzegovina than are the human rights and fundamental freedoms under the ECHR. The suggested opinion relies on a wrongly understood term “direct” application”. The directness of application should be perceived only in connection with the mutual interaction of international law (ECHR) and constitutional law. In order to apply the ECHR, no act on its application is required nor any order of the domestic legal system.

Therefore, the courts are obliged to examine not only whether some disputed norm is consistent with the fundamental rights under the ECHR, but also whether it is consistent with the remainder of constitutional law. If the examination results in a conclusion that the relevant norm is inconsistent, then the courts will be obliged to suspend the ongoing proceedings and refer the issue to the Constitutional Court to take a decision on the compatibility of that norm with the ECHR. After the relevant decision is adopted the lower court may resume the proceedings, in which case the legal standpoint of the Constitutional Court must be complied with.