Effect of decisions

Pursuant to Article VI.4 of the Constitution of BiH, decisions of the Constitutional Court shall be final and binding. Being final implies that they may not be challenged as there is no legal remedy available to be used against them before a higher national instance. Thereby these decisions become formally legally binding. This relates to the decisions of the Chamber (three judges, Article 10 of the Rules of the Constitutional Court, present version), the Grand Chamber (5 judges, Article 9 of the Rules of the Constitutional Court, present version) and the plenum, i.e., the plenary session (9 judges, Article 8 of the Rules of the Constitutional Court, present version). Being legally binding, the decisions are impossible to revoke as such. The review of a decision, under Article 70 et seq. of the Rules of the Constitutional Court, present version, is not a classical review procedure, and thereby it does not constitute a legal remedy, since it presumes the existence of new facts.³⁸⁰³ Legal validity means res iudicata in relation to the very subject-matter of the dispute and to the parties to the proceedings (substantive legal validity). Regarding decisions within the scope of abstract control (review) of constitutionality, under Article VI.3(a) and (c) of the Constitution of BiH, substantive legal validity has effect inter omnes.

With undisputed effect which is binding inter partes, and inter omnes when it comes to abstract control (review) of constitutionality, Article 74, paragraph 1 of the Rules of the Constitutional Court, present version, adds the fact that such a decision must be respected by all physical and legal persons. Under paragraph 2 of this regulation, all State bodies are obliged to enforce the decisions of the Constitutional Court within the scope of their respective competencies. According to the very text of the regulation, there is no single private or public law person, physical or legal, in the State that is exempted from the binding effect that decisions of the Constitutional Court have. Decisions are binding in general. The BiH Constitutional Court is the sole authority that may change its jurisprudence. However, the Court has done so explicitly only once.³⁸⁰⁴

In principle, only the enacting clause of the decision has a binding effect, not the reasoning thereof. The exception is Article 64, paragraph 5 of the Rules of the Constitutional Court, present version: in the procedure following an appeal, under Article VI.3(b) of the Constitution of BiH, the Constitutional Court has two options: it may quash the challenged decision and refer the case back to the competent authority,³⁸⁰⁵ or it may take a decision on the merits on its own and bring the procedure to an end.³⁸⁰⁶ In the former case, “the responsible” authority is obliged to take into account not only the enacting clause but also the legal position arising from the reasoning (paragraph 5). However, this applies only to an individual and a specific case, and under Article 74 of the Rules of the Constitutional Court, present version, it is not applicable to all physical and legal persons. Therefore, Article 64, paragraph 5 is lex specialis in relation to Article 74 of the Rules of the Constitutional Court, present version. The authority by which the Constitutional Court is obliged to adopt a new decision (usually it is a court) in this case is, also, required, when applying and interpreting the norm to be decisive for the disputed case at hand, to follow the legal position of the Constitutional Court. Thus, in the present case, the order of the Constitutional Court achieves legal force.³⁸⁰⁷ The present judgment is not formally binding on other authorities, although the case law of the Constitutional Court has prejudicial effect.