Constitutional Court

Pursuant to Article 77, paragraph 1 of the Rules of the Constitutional Court (present version), the Chamber, composed of the President and two Vice- Presidents – national judges (Article 10 paragraph 1), may at the request of a party impose an interim measure to be in effect up until the adoption of a decision on the merits, if, according to the opinion of the BiH Constitutional Court, it is in the interest of a party, or if necessary for the correct conduct of proceedings. Pursuant to paragraph 2, the President of the Court may, in exceptional cases, if it is not possible to convene a session of the Chamber, adopt an interim measure himself/herself. At the plenary session (Article 8) or at the Grand Chamber, composed of 5 judges (Article 9), an interim measure may be adopted at one’s own initiative or at the request of a party (paragraph 3). The interim measure shall remain in force up until the moment another differing decision has been adopted at a plenary session (paragraph 6). Interim measures are adopted in urgent cases and remain in force up until the adoption of a decision on the merits, or up until the adoption of another differing decision at the plenary session.

The new regulations in relation to interim measures allow the Court to use that instrument more quickly and under less strict conditions. Under Article 75 of the Rules of the Constitutional Court, present version, only the BiH Constitutional Court in plenum, i.e., at a plenary session, could fully or partially suspend the enforcement of decisions, laws (acts) or individual acts (interim measures) temporarily, pending the final decision in the case, if, as a result of their enforcement, detrimental consequences that cannot be overcome might set in.

At the beginning, the Constitutional Court rather seldom used the possibility of adopting interim measures. As a matter of fact, there was no need for it, predominantly, and a decision on the request for adoption of an interim measure was adopted together with a decision on the merits. The cause for such use of this instrument did not relate solely to the above-mentioned procedural and substantive obstacles for adoption of an interim measure but also to omissions in the organisation of the Court that existed for quite some time. Accordingly, in Case No. U 15/99, only 6 weeks after the submission of a request, the Court adopted an interim measure in order to stop the enforcement of an eviction order, which was upheld, at the last instance, by the Supreme Court of the Republika Srpska. The reasoning only read that if an interim measure was not adopted, the enforcement would have detrimental consequences for the appellant, which would be impossible to remove. Another reason why there were a low number of positively solved requests for adoption of an interim measure was, oftentimes, insufficiently founded requests.³⁷⁶¹ This problem still exists, which is shown in statistics: up until May 2008, the Constitutional Court imposed an interim measure in only 26 cases, and it rejected 279 such requests as ill-founded or inadmissible.³⁷⁶²

The Constitutional Court reviews the ‘well-foundedness’ of requests for interim measures separately from the well-foundedness of an appeal. Therefore, the reasons that the Constitutional Court relies on when deciding on a request for adoption of an interim measure differ from the reasons the Constitutional Court relies on when adopting a decision on the subject-matter of a dispute. The reasons and evidence stated by the appellants with respect to the alleged violations of constitutional rights and freedoms when making a decision in the case at hand cannot be analogously applied while deciding on the well- foundedness of a request for an interim measure.³⁷⁶³ As a matter of fact, the appellant must present and prove as evident that the failure to adopt an interim measure would result in detrimental consequences for him, which would be impossible to subsequently remove.³⁷⁶⁴ A threat of possible damage must be acute, serious and plausible.³⁷⁶⁵ While deciding on an interim measure, the Court also ought to take into account whether imposing an interim measure would have detrimental consequences for the other party to the proceedings,³⁷⁶⁶ so as to possibly weigh out the interests of both parties.

To the question of whether the competence of the Constitutional Court to adopt a decision on the merits is a necessary precondition for the competence of the Constitutional Court to adopt an interim measure, no clear answer has surfaced as yet on the basis of the Court’s constitutional practice. The constitutional practice of the Court in this area is not yet standardised. In several decisions the Constitutional Court holds that a decision on interim measures does not prejudge “the outcome of the proceedings”, which may refer both to a decision on admissibility, and to a decision on the merits.³⁷⁶⁷ Accordingly, the Court asserts that it may reject an appeal as inadmissible even after the adoption of an interim measure since the summary review of the chances of success when imposing an interim measure is not carried explicitly.³⁷⁶⁸ What is more, in several cases, the Constitutional Court adopted an interim measure, thereby stopping the enforcement of a decision (for instance, the second instance administrative ruling) although the proceeding before the ordinary court (administrative dispute) had not been completed at all, and the objective of the measure was the completion of a proceeding before the ordinary court.³⁷⁶⁹ Therefore, this case law speaks for the fact that admissibility of an appeal is not a precondition for adoption of an interim measure. Contrary to this, there were decisions on imposing an interim measure wherein the court presented arguments that the interim measure requires that the Court be competent for the adoption of a decision on the merits, including a review of whether the appeal was manifestly ill-founded.³⁷⁷⁰

Indeed, it would be correct to consider that the Constitutional Court, when adopting an interim measure, should be competent also for adoption of a decision on the merits.³⁷⁷¹ For, by adopting an interim measure the Court interferes – as it has observed itself – with the ordinary course of affairs; for instance, it halts the enforcement of a judgment or a ruling provided for by law.³⁷⁷² If the ordinary proceeding has not been completed, because a revision appeal has been lodged, or appellate proceedings are underway,³⁷⁷³ then the intervention of the BiH Constitutional Court, for the sake of temporary suspension of the enforcement, may possibly make sense. The reason for this is that in that manner, irreparable detrimental consequences for the case could be prevented, which would no longer be possible to remove if the challenged judgment that was being awaited, would, nevertheless, be quashed in the proceedings before the Constitutional Court. The necessity for the Constitutional Court to intervene in cases like this is based on the fact that certain legal means have no effect of delay.³⁷⁷⁴ According to the case law of the European Court, legal remedies, which have no suspending effect in cases where irreparable detrimental consequences would occur, as a result thereof, may not be considered effective. A legal remedy is effective if it leads not only to the establishment of a violation of the right but also if it is able to prevent or remove the consequences of such violations.³⁷⁷⁵ The very possibility to compensate for damage by way of a legal remedy for the decision which was unjustly adopted does not make the respective legal remedy effective under the ECHR.³⁷⁷⁶

The notion of irreparable detrimental consequences, which is used in the case law of the Constitutional Court, has not been defined in a sufficiently clear manner. Interim measures, in principle, have the purpose to freeze the status quo pending the adoption of a decision on the merits by the Constitutional Court in order to prevent any possible damage for the appellant that would be no longer possible to redress. Partially, in these decisions the Constitutional Court reasons the necessity of adopting an interim measure: it is, for instance, necessary, claims the Court, if the eviction of a family from an apartment would result in serious social and health consequences,³⁷⁷⁷ or if enforcement of a criminal judgment would cause health problems for the appellant.³⁷⁷⁸ Also, promptly bringing a person before a judge in order to establish the lawfulness of detention may be necessary in some cases and may be ordered in a decision on an interim measure.³⁷⁷⁹ Detrimental consequences, which are no longer possible to remove, may also take place if the defendant obtains the right to purchase the apartment which is the subject-matter of the dispute in the proceeding before the Constitutional Court.³⁷⁸⁰ A mere presumption of damage, which is no longer possible to redress, is not sufficient.³⁷⁸¹

In other decisions, the Constitutional Court does not address what makes it so that damages are no longer possible to redress, but arbitrarily accepts the assertion about such damages.³⁷⁸² The Court considered at times that even a mere allegation about the alleged serious violation of human rights would suffice;³⁷⁸³ whereas at times it concluded otherwise, i.e., that the weight of a violation is irrelevant if presented in an insufficiently credible manner.³⁷⁸⁴ Missing one year of studies due to the enforcement of a criminal judgment that is challenged before the Constitutional Court is not a reason to issue an interim measure.³⁷⁸⁵

The fact that the Constitutional Court, for the purpose of adopting an interim measure, at times makes relative the notion of “completion of the proceedings” (in other words, the principle of exhaustion of legal remedies), indeed does not serve the legal certainty. Namely, in the case law the court used to declare itself incompetent to review the constitutionality of certain stages of certain proceedings. In this respect, the Constitutional Court claimed that the Court might decide on the existence of violations of constitutional human rights and freedoms only after the completion of the entire proceedings, as well as after the exhaustion of all legal means.³⁷⁸⁶ In Case No. AP 785/08, contrary to this, the Constitutional Court decided that also “the ending by a legally binding decision” of a certain “decisive” stage of the proceeding might be the subject- matter of a decision on the merits, and that not even the adoption of an interim measure in such a case might be ruled out.³⁷⁸⁷

Taking into account the aforementioned and the mentioned constitutional case-law, but also the linguistic meaning of Article 77 of the Rules of the BiH Constitutional Court, present version, (in particular paragraph 8³⁷⁸⁸) in conjunction with the provision of Article VI.5 (formerly Article VI.4) of the BiH Constitution , one would get the impression that an interim measure may be sought before the BiH Constitutional Court only before the adoption of a decision on the appeal, that is before the adoption of a final decision.³⁷⁸⁹ Nevertheless, according to the most recent case-law of the BiH Constitutional Court,³⁷⁹⁰ an interim measure may be considered also during the proceedings of adopting a decision on the request for review of the decision of the BiH Constitutional Court pursuant to Article 70 et seq. of the Rules of the BiH Constitutional Court, present version. That leads one to reach a problematic conclusion that “a final decision”, at least when it comes to the adoption of an interim measure, shall be taken only when the proceedings for the review of a decision have been completed (if instituted). Such a conclusion would be, among other things, contrary to the principle of one-instance proceedings before the BiH Constitutional Court.