Closing observations and summary

Overall, one may say that both courts had at their disposal a rather wide range of instruments in order to be able to react, targeting various violations of human rights and freedoms. Neither court focused solely on the mere establishment of violations. By using the possibility to issue certain measures and orders, both the BiH Constitutional Court and the Human Rights Chamber could issue specific instructions, and, if necessary, they could combine such instructions with interim legal protection measures (interim measures). The goal was to act preventively in relation to violations of human rights and freedoms, and to redress the established violations in the future, or for damages for such violations to be paid. The competences of the BiH Constitutional Court, being a national court within the constitutional framework, are greater than the competences of the Human Rights Chamber, since the BiH Constitutional Court may directly quash unconstitutional acts (for instance, judgments and laws). The Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court had to limit themselves to obliging domestic authorities to, for instance, adopt a new decision, or to amend the law. Thus, their intervention within the national legal system, when it comes to the authorities under Annex 6, was only indirect, whereas the intervention of the BiH Constitutional Court might as well be direct.

When it comes to the history of implementation of decisions of both courts, one may agree with Nowak,³⁸⁷⁶ who said that the rate of implemented decisions of the Human Rights Chamber, in terms of quantity, was “impressive indeed”, whereby, one should not overlook the fact that such implementation was insufficient in terms of quality. The implementation usually depended – as admitted by the Chamber³⁸⁷⁷ – almost entirely on the more-or-less massive intervention by the OHR, SFOR or other international factors. The situation is similar when it comes to the judgments of the BiH Constitutional Court, regardless of the fact that they have direct effect in the national legal system. Nevertheless, the critique by Sekulić,³⁸⁷⁸ who said that success in implementing human rights in individual cases, which was made possible under the pressure of the international factor, and against resistance put up by the other ethnic groups, is symbolic in nature, and is not in conformity with the concept of these two highest courts.

The practice in implementation of decisions in the initial years has taught both courts that their respective decisions must be accurate. The more specified a decision – precisely in relation to the necessary measures for removal of the unconstitutional situation – the less room for the obstruction thereof. Namely, the cause of failure to enforce decisions is not always the resistance of the competent authorities, but also very often the lack of expert knowledge and experience. Assistance in technical implementation, in the form of instructions to undertake certain specific measures, may be understood as intervention which falls under the jurisdiction of the executive authority or legislation. However, one should emphasise that the BiH Constitutional Court and the HRC for BiH, i.e., the Human Rights Commission within the BiH Constitutional Court, must leave enough room for the authorities in charge of the implementation of their respective decisions to manoeuvre, and that they should not excessively interfere with the very enforcement. In other words, their intervention should end by providing solely a necessary framework required by the Constitution. A successful example of such joint action of various State authorities is the decision of the Human Rights Commission within the BiH Constitutional Court in the Case CH/98/375, in which the Commission provided eight specific orders, the joint goal of which was to enact a law at the State level.

Due to the non-existence of a developed legal culture in which State authorities would comply with the decisions of courts, in particular with decisions of the highest courts, a strong instrument was employed in Bosnia and Herzegovina in the form of a threat of sanctions in the event of failure to enforce or hinder the enforcement of constitutional decisions, which goal was the fight against obstructions (see, Article 239 of the Criminal Code of BiH). Practical experiences with the mentioned criminal code are less convincing and good. The State Prosecutor’s Office has encountered difficulties, primarily in the efforts to individualise responsibility for the implementation of decisions of the BiH Constitutional Court and the Human Rights Chamber, i.e., the Human Rights Commission within the BiH Constitutional Court.³⁸⁷⁹

It is clear that the decisions of the independent judicial authorities, seeking political, economic and social changes against the will of political elites, and as often as not against the will of various ethnic groups, will encounter resistance, particularly when bearing in mind the fact that BiH is a State which has been permanently divided and which has gone through a double process of transition. The fact that the implementation of judgments required the assistance of international actors is also important and it should not be forgotten as part of the concept of mechanisms for peace stabilisation. However, this assistance does not bring into question either the efficiency or necessity of this instrument for the strengthening of the legal state. In strong democracies also, where the principle of the legal state is respected, enforcement of court judgments depends largely on the strength and persuasiveness of the very judgments issued, and on such judgments being accepted. Implementation of a judgment, considered to be unjust and inappropriate, does not meet with resistance solely in countries in transition. Yet, institutional obedience is apparently greater in the environments where a balance has been struck between the different levels and types of authorities than in the environments where, following decades of non-democratic authority, years-long conflict, with elements similar to civil war, had taken place.

One should also mention that the decisions of the Human Rights Chamber and the BiH Constitutional Court in key areas of State organisation, return of refugees, overcoming the past, legal protection and protection against discrimination, as a rule, were conditio sine qua non for the political activities of national and international authorities. Only the effect that decisions of these almost entirely independent and respected judicial bodies have had – since they were a model, and served for identification of certain activities – made possible for the initiation of reform in the mentioned key areas and for individual rights to be respected in a peaceful environment and atmosphere.