BiH Constitutional Court

Part of the enforcement of the decisions of the Constitutional Court is also the obligation of the relevant authorities, which were ordered to carry out the enforcement, to submit a report on enforcement.³⁸³² Enforcement of the decisions of the Constitutional Court in practice depends to a large extent on the type of a decision, i.e., on the legal remedies that were ordered. When it comes to decisions in the procedures of abstract control (review) of constitutionality, wherein the BiH Constitutional Court established violations of the Constitution of BiH, then it is necessary to emphasise that the regulation laid down in Article 63 of the Rules of the Constitutional Court, present version, which contains the rule and the exception, is a reaction to the desperate practice of enforcement in the early years. Thereby the rule relates to the direct quashing of an unconstitutional regulation, and the exception relates to setting the time limit for the legislature to adjust and correct regulations. It proved that the legislature was usually not able or was unwilling to comply with the order of the Constitutional Court to harmonise unconstitutional regulations. Accordingly, for instance, in Case No. U 44/01, the Constitutional Court first determined a three- month time limit for harmonisation of the names of the cities regulated by law. After the expiry of the time limit, during which the legislature remained passive, the BiH Constitutional Court, by its decision, established that the provisions, which were not in conformity, ceased to be in effect, and acted instead of the legislature, i.e., substituted it so as to (re)establish the constitutional names of the cities – which were, mainly, in effect earlier – until such time as the legislature adopted some different regulation.

Although the representatives of the international community in Bosnia and Herzegovina do not have a formal role in the implementation of the decisions of the Constitutional Court – unlike their role in Annex 6³⁸³³ – their contribution in this sense, should, nevertheless, not be disregarded. Precisely the procedures of abstract control (review) of constitutionality of norms before the Constitutional Court, at times, had wide-ranging and profound consequences for the State organisation and the strengthening of the legal state in Bosnia and Herzegovina. Although legally binding and directly enforceable, and with specific orders for action, these decisions oftentimes became politicum, so that the national actors, usually with great resistance, initiated reforms necessary for the implementation of such judgments. A prominent example of this is the 3^rd partial judgment in Case No. U 5/98, which obliged the Entities to implement thorough constitutional reforms. The High Representative considered that the constitutional amendments enacted by the Entities’ legislatures in this respect were not satisfactory and sufficient, and he corrected them himself.³⁸³⁴

Since 2001 the Constitutional Court has adopted 22 decisions on the merits within the scope of abstract and concrete control (review) of norms in accordance with Article VI.3(a) and (c) of the Constitution of BiH. Violations were established in 12 cases. Four times the Court quashed the challenged general act right away, and in eight cases it set the time limit for harmonisation.³⁸³⁵ Of the eight cases, six cases were related to the harmonisation of unconstitutional provisions. Three of the six decisions, that is 50%, had already been implemented at the time of their publication.³⁸³⁶

When it comes to appeals under Article VI.3(b) of the Constitution of BiH the statistics look better.³⁸³⁷ In the period from 1 January 2005 to 1 June 2008, the Constitutional Court adopted a total of 261 decisions on the merits, wherein it established violations of fundamental rights. Of that number, 23 decisions have not been enforced (about 9%) at the time of collecting data for these statistics. According to the internal statistics of the BiH Constitutional Court on implementation of decisions for the period from 1 January 2007 to 1 January 2008, in 2007 the Constitutional Court adopted a total of 99 decisions on the merits wherein it established violations of human rights. Of this number, 43 judgments were implemented in full by 1 June 2008, and in the remaining 43 cases certain activities have been undertaken towards their enforcement, or such judgments were declared objectively impossible to implement; only in three cases have the authorities competent for enforcement failed to undertake any activities whatsoever in this respect.³⁸³⁸

Apart from a minor number of cases where decisions were openly ignored,³⁸³⁹ it is necessary to mention that decisions awaiting enforcement are usually those decisions in which implementation is complex, for the process requires joint action by more authorities,³⁸⁴⁰ or the implementation involves more persons, or it entails substantial expenditure.³⁸⁴¹ Statistics presented above and which appear optimistic at first sight, nevertheless, require a certain correction considering particular individual cases.

At the time of preparing the statistics, of all the adopted decisions of the Constitutional Court in the period from 1 January 2005 to 1 June 2008, of 261 decisions only 23 have not been enforced. The 23 decisions involved a total of 487 appellants. Two significant decisions mentioned above as unenforceable³⁸⁴² involve a total of 459 appellants. The remainder of 21 unenforceable decisions involve 28 appellants.

Also questionable is the conduct of the ordinary courts with respect to the orders by the Constitutional Court to complete cases in an expedited procedure when establishing a violation of the right to a fair trial within a reasonable time. In any case, the Constitutional Court examines whether the ordinary courts have complied with such orders. Thus the Court established a number of times that the completion of proceedings was not expedited noticeably even following the proceedings before the Constitutional Court and the granting of an appeal.³⁸⁴³