Appeals

Pursuant to Article 64 of the applicable Rules of the Constitutional Court, the Constitutional Court has two options when deciding on the merits: according to paragraph 1, upon a successful appeal, the Constitutional Court shall quash the decision of the lower instance court or of some other administrative body,³⁶⁷⁷ and refer the case back to the court or to the body which took that decision.³⁶⁷⁸ In cases where the appellant has complained about the length of proceedings the Constitutional Court shall give a subsequent order for a new decision to be adopted as a matter of urgency.³⁶⁷⁹ Sometimes the BiH Constitutional Court substitutes for the lower instance courts and decides on the merits of the case and it is authorised to do so according to paragraph 2 of the mentioned provision. Accordingly, the Court was not only quashing the decisions of the lower instance courts, but there is also a case where the Court gave an order to an illegal occupant of an apartment, which was the subject of a dispute, to vacate the apartment within 60 days under threat of forcible execution,³⁶⁸⁰ or the Court also gave an order to the State authorities to make it possible for the owner of the apartment to repossess the apartment.³⁶⁸¹ The BiH Constitutional Court of BiH may also declare ineffective the contract on exchange of apartments if its applicability is in violation of the appellant’s rights,³⁶⁸² or it may give an order to the BiH Council of Ministers to pay the disability pension due to the fact that the Council has failed to legally regulate that legal matter in a timely manner.³⁶⁸³ If it is necessary, the BiH Constitutional Court determines the authority which is to help the appellant in the exercise of his/her rights and this is particularly related to the situations where the jurisdiction between the State and the Entities is not clearly defined.³⁶⁸⁴ In Case No. U 23/00, the BiH Constitutional Court notes that in the event of a violation of the right to a decision within a reasonable time, this Court may impose a measure on financial compensation in the same manner as is done by the European Court. In the proceedings conducted upon Appeal No. U 15/00,³⁶⁸⁵ the Constitutional Court concluded that the right to a judicial decision on the merits was violated, since the RS Supreme Court, although in renewed proceedings, quashed the wrong decision of the administrative authority, but every time it nonetheless referred the case back to the administrative authorities for complete establishment of the facts. Accordingly, the Constitutional Court quashed the ruling of the RS Supreme Court and ordered that the court “decide on the merits of the case under the summary procedure and to comply with the appellant’s right to a decision within a reasonable time as referred to under Article 6 of the European Convention”.

In addition to preventive measures and measures of natural restitution, the Constitutional Court is also authorised to order compensation for damage sustained due to human rights violations. When compared with the judicial institutions under Annex 6, such orders indicate that there are two essential differences: on the one hand, the Constitutional Court cannot order redress ex officio, but it can only do that upon the appellant’s claim. On the other hand, the orders intended to remove the reasons for filing appeals are issued only under exceptional circumstances.³⁶⁸⁶ The BiH Constitutional Court followed that rule in its practice and was very restrained when it comes to the issuance of such orders. The Constitutional Court asserted that its basic task is to eliminate human rights violations, to prevent such violations or to oppose them, in which case the redress payment is of secondary importance. Very often it happens that the Constitutional Court refuses to award a redress payment, stating that there is sufficient satisfaction if it establishes that there have been violations of fundamental rights.³⁶⁸⁷

However, the redress payment is awarded, as a rule, in two groups of cases. Firstly, as to the cases where the proceedings take an unreasonable amount of time, the Constitutional Court has set its own criteria corresponding to the situation in BiH and relied on the case-law of the European Court. According to those criteria, for each year of prolonged duration of proceedings a compensation amounting to 150 KM is imposed.³⁶⁸⁸ On the other hand, the relatives of the missing persons are regularly awarded compensation, which is paid through the Fund for providing assistance to the families of the missing persons.³⁶⁸⁹ Furthermore, the Court orders redress payment in cases where constitutional rights have been flagrantly violated. For example, in Case No. AP 2582/05, where the Court awarded redress payment to three appellants whose rights to redress were violated by unlawful deprivation of liberty and the amount to be paid was 600 KM. Additionally, an amount from 2800 KM to 6000 KM was also to be paid as a redress for violation of the right to home and the right to prohibition of torture under Articles 3 and 8 of the ECHR.³⁶⁹⁰