The review of decisions of the BiH Constitutional Court

Article 70 of the Rules of the Constitutional Court, present version, provides for a possibility for the Court to review the decisions adopted if: a) a new circumstance occurred, b) which would decisively affect the outcome of the proceeding, c) which would be unknown to the court, and d) a party (presenting the mentioned circumstance), at the time of adoption of a decision, could not have been aware of the mentioned circumstance. The request for review may only be filed by a party to the proceeding, not by a third person,³⁸⁰⁸ or a judge ex officio. Further, the request may be filed within six months from the moment the party learned of the mentioned circumstance. The review will be ruled out if one year has elapsed from the adoption of the decision (according to the old version, it was five years).

One should make a distinction between the ruling on admissibility of the request for review and the new decision on the merits.³⁸⁰⁹ The Constitutional Court reviews prima facie whether the new circumstances might have affected the outcome of the proceeding within the context of the challenged decision.³⁸¹⁰ A question whether some circumstance is “new” requires interpretation, since it is not possible to observe clearly from the text whether Article 70 relates solely to the so-called nova reperta, or also to the so-called nova producta, or to something else. According to the legal theory, nova producta constitutes a new circumstance which, objectively speaking, came into existence following the adoption of a certain decision. Nova reperta is a new circumstance solely in subjective terms, because it was inaccessible for justified reasons to the interested party or to the very court.³⁸¹¹ Considering these positions, it is undeniable that the error on the part of the court (for instance, if the court, due to negligence, failed to consider a part of the appeal³⁸¹²) may not be treated as a new circumstance. It is interesting to mention that the amended case law of the Constitutional Court is treated as a new fact within the meaning of Article 70 of the Rules of the Constitutional Court. Accordingly, in Case No. U 49/03 the Constitutional Court granted the request for review wherein the appellant claimed that the Constitutional Court, following a decision adopted on his first appeal, amended its case law, which required a review of the decision.³⁸¹³

Such case law is disputable with respect to the principle of legal certainty. The mechanism of internal review of the judgments of the Constitutional Court should not be employed for the correction of erroneous judgments. Knowledge that some legal opinion, which was represented in the decision, was not justified would not constitute “a new circumstance”. If the Court views amendments to its case law as amendments within the scope of the constitutional reality, which has changed and evolved in the new direction (it is questionable whether it may occur in one year, and it does not constitute “a changed circumstance” within the meaning of Article 70), then in this case, if one was consistent, it would not be appropriate to retroactively adapt the earlier decisions, which were justified at the time of their adoption.