Constitutional Court

Decisions of the Constitutional Court are enforceable. In a decision, the Constitutional Court may determine the manner as well as the time limit for enforcement (Article 74, paragraph 4 of the Rules of the BiH Constitutional Court, present version). This entitles the Court to undertake all appropriate and necessary measures in order for the decisions of the Court to be complied with. Thereby, decisions are not subject to some enforcement procedure which is known in other procedural laws; rather such decisions are directly enforceable. The Constitutional Court may order other authorities too to enforce its decisions. The type of orders for enforcement that are possible and usual shall depend on the type of the proceedings.

In the appellate proceedings, pursuant to Article VI.3(b) of the Constitution of BiH, the BiH Constitutional Court may quash the challenged decision and refer the case back to the responsible authority in order to adopt a new decision in an expedited procedure, during which adoption the responsible authority will observe the legal position of the Constitutional Court.³⁸¹⁸ The other procedural possibility is for the Constitutional Court to adopt a decision on the merits and thereby to conclude the proceedings. In the latter case, the Court shall determine the entity to enforce its decision. Not a single (State) authority may refuse to enforce the decisions. When determining the responsible authority, the Constitutional Court shall, under Article 74, paragraph 2 of the Rules of the Constitutional Court, present version, observe the division of jurisdiction under the Constitution of BiH and the law. Accordingly, for instance, in the event of a violation of Article 6 of the ECHR – unreasonable length of proceedings – on one hand, the Court will order the competent court to complete the proceedings urgently or within a given time limit, and, on the other hand, order the instance of authority in charge of the responsible judicial body, possibly, to pay a just compensation.³⁸¹⁹

In the procedure of control (review) of the constitutionality of norms, under Article Vl.3(a) and (c) of the Constitution of BiH, the Constitutional Court shall, in principle, quash the challenged unconstitutional provisions³⁸²⁰ and determine the legal effect of a decision ex tunc or ex nunc.³⁸²¹ Provisions which are not in conformity with the Constitution of BiH shall be rendered ineffective the day after the date of publication of the decision in the Official Gazette of Bosnia and Herzegovina.³⁸²² Exceptionally, the Constitutional Court may determine the time limit for bringing in line the unconstitutional provisions, and such time limit must not exceed six months.³⁸²³ If the responsible authority fails to correct the unconstitutional provisions within the given time limit, the Constitutional Court shall establish by its decision that the provisions, which are not in conformity, shall cease to be in effect.³⁸²⁴ Here, also, the quashed provisions are rendered ineffective the day after the date of publication in the Official Gazette of Bosnia and Herzegovina.³⁸²⁵

The enforcement of final and binding individual acts, which were issued on the basis of some regulation, which had been rendered ineffective in accordance with Article 63 of the Rules of the Constitutional Court, present version, may neither be ordered nor carried out. If the process of enforcement has already been initiated, it shall be suspended.³⁸²⁶ If it is established that by amending an individual act no consequences of the application of the regulations which had been declared unconstitutional were removed, the Constitutional Court may, at the request of the injured party, through the restitutio in integrum order, ensure the compensation of damage or some other type of satisfaction.³⁸²⁷

Any person with a legal interest may request the enforcement of a decision of the Constitutional Court.³⁸²⁸

The procedure of enforcement, under Article 74, paragraph 5 of the Rules of the Constitutional Court, present version, is linked to the obligation of the competent authority to submit a communication. Namely, the authority, which is to enforce the decision, is obliged to submit a communication about the measures undertaken, or about the status and the stage of the implementation of the decision, within a given time limit. In the event that the enforcement has not been carried out, in the event of delay or in the event that a communication on enforcement has not been submitted, the Constitutional Court will establish that its decision has not been enforced, and it may also determine the manner in which the particular decision needs to be enforced. This ruling shall be communicated to the competent State prosecutor, that is to the authority competent to carry out the enforcement as determined by the Constitutional Court.³⁸²⁹ Communicating the ruling to the State Prosecutor’s Office may provoke the institution of a criminal procedure, for, under Article 239 of the Criminal Code of BiH,³⁸³⁰ refusal, prevention or some other form of obstructing the official person from enforcing an enforceable decision shall constitute a criminal act with a prescribed punishment of six months to five years imprisonment.