View in retrospect: The Human Rights Chamber, i.e., the Human Rights Commission within the BiH Constitutional Court

Pursuant to Article X.1 of Annex 6, the Human Rights Chamber could issue provisional measures. Article VIII.2(f) of Annex 6 obliged the Chamber to decide on a request for provisional measures treating it as a priority. Rule No. 36 specified the procedure. This regulation, first and foremost, provided that the President of the Chamber shall be the one to make decisions outside of sessions. The Chamber issued provisional measures if there were prima facie indications that some protected right had been violated, and that the Chamber had competence over it,³⁷⁹¹ and if it appeared plausible that the applicant, in the event of not issuing the measure, would suffer serious and great damage that might no longer be redressed.³⁷⁹² The notion of damage must be interpreted restrictively, since the provisional measure interferes with the ordinary course of affairs. When assessing whether some provisional measure is justified, the so-called double hypothesis comes in handy. Consequences that would take place if the request for provisional measures were not approved and the application were granted as well-founded, on one hand, are measured against the consequences that would take place if a provisional measure were to be issued and the application were to be dismissed as ill-founded, on the other hand.³⁷⁹³

Due to special circumstances in the State, from the very outset, the Chamber did not have inhibitions in truly using this important instrument of efficient protection of human rights and freedoms.³⁷⁹⁴ Adoption of such a measure and the intensity thereof significantly exceeded the limit which was usually observed by the European Court in Strasbourg.³⁷⁹⁵ The Chamber, also, succeeded – among other things, due to the aforementioned special powers of the president – in making timely decisions in this respect. Provisional measures, first and foremost, had the purpose of maintaining the status quo in some proceeding pending the adoption of a decision on the merits by the Chamber, in order to prevent the occurrence of some type of damage for the applicant which may no longer be repaired,³⁷⁹⁶ and to enable the conduct of the proceeding and the subsequent decision.³⁷⁹⁷ Contrary to this, the Chamber restrained itself from issuing provisional measures that would entail the obligation of a change of the status quo, such as, for instance, an eviction order in favour of an applicant.³⁷⁹⁸

Provisional measures are binding on the parties; and unlike the provisional measures issued by the European Court, non-compliance with a provisional measure of the Chamber was unlawful. Therefore, for instance, eviction of a certain person, despite or contrary to the prohibition imposed by the Chamber through a provisional measure, for that very reason was not “provided for by law” within the meaning of Article 8.II of the ECHR. Such a conclusion applies even under the presumption that the eviction (without a provisional measure), would, nevertheless, be lawful, since it referred to an unlawful possessor of an apartment.³⁷⁹⁹

Pursuant to Article XI.1(b) of Annex 6, the Chamber may issue a provisional measure together with a decision on the merits, for instance, in order to regulate the status pending the legally binding decision or the enforcement thereof.³⁸⁰⁰

In practice, provisional measures were mainly used in cases where the subject- matter of the dispute concerned property, namely for the sake of protection against eviction, and in cases where an appellant was threatened with execution. Although the orders of the Chamber, within the scope of provisional legal protection, were mainly complied with, there were, nevertheless, also cases of blatant non-compliance with such orders. Such was the case with the Algerian Group,³⁸⁰¹ or cases carrying allegations as to the existence of religious discrimination (religious facilities, funerals etc.). In such cases the Chamber issued a series of provisional measures.³⁸⁰²