Skip to content
Commentary on BiH Constitution
Home
About
Purpose of the Commentary
Partners
Imprint
Contact
Authors
Search for:
Search
Home
Search
Home
About
Purpose of the Commentary
Partners
Imprint
Contact
Authors
Contact
Introduction, Nedim Ademović and Christian Steiner
The list of abbreviations used
Constitution of Bosnia And Herzegovina (Authentic text in English)
Introduction: Genesis and Legitimacy of the Constitution of Bosnia and Herzegovina
A. Enactment of the Constitution within the international legal agreement
BiH Constitution as an element of consolidation of peace
B. Practical problems of implementation in the post-war period
Double transition
Unity without consensus
Weaknesses of the international engagement
C. Revolutionary genesis of the Constitution?
D. Doubts about legitimacy
E. Summary and Opinion
Preamble
A. Significance of the Preamble
B. About the Lines Respectively
Human dignity, freedom and equality;
“Dedicated to peace, justice, tolerance and reconciliation...”
Peace in pluralism through democracy and fair procedures
a. Introduction
The role of line 3 of the Preamble of the Constitution of BiH in the case law of the Constitutional Court of BiH
Structures of multiethnic democratic State authority in Bosnia and Herzegovina
Structures of a multiethnic pluralist society
European standards of pluralism
Traditional theory of pluralism
New theories about pluralism
4. Provisions relating to the economic system
Orientation to the purposes and principles of the UN Charter
Sovereignty, territorial integrity and political independence
Respect for international humanitarian law
Inspired by human rights
Geneva and New York Basic Principles
Constituent power
Commentary of Steiner/Ademović
The constituent status of Bosniaks, Croats, Serbs and Others
Pluralism instead of territorial segregation
Territorial instead of ethnic federalism
Ethnic parity within institutions is an exception
Balance between ethnic and civil concepts (citoyenneté)
The constituent status imposes intraparty pluralism
The constituent status and “the vital national interest”
The status of constituent people suppresses the status of minority
Comments by Prof. Dr. Joseph Marko, the judge rapporteur in the Case No. U 5/98 (line 10)
Article I – Bosnia and Herzegovina
A. Continuation according to international law (Article I.1)
B. Democratic principles (Article I.2)
Democracy
Legal state
Legal certainty
Division of power
Scope of obligation to comply with the Constitution
Effective legal protection and judicial control
Human rights and freedoms – liberal constitutional order
C. State composition (Article I.3)
D. Freedom of movement in the economy – four freedoms (Article I.4)
E. Capital (Article I.5)
F. State symbols (Article I.6)
G. Citizenship (Article I.7)
Article II – Human rights and fundamental freedoms
A. Clarification attached to Article II of the BiH Constitution
1. Introduction
International protection of human rights and freedoms
Commission on Human Rights
Human Rights Chamber
Composition (Article VII of Annex 6)
Competencies
Legal nature
Caseload
“Implementation of Annex” 6 to the GFAP
Overcoming the past through the application of the ECHR?
Dogmatic principles of the fundamental human rights and freedoms
General provisions
Human rights and freedoms: protection, restriction and justification of interference
Guarantees of the institutions
“Objective” value of fundamental human rights and freedoms
Obligation as to the positive protection
Indirect “third effect” (Drittwirkung) of human rights and freedoms
Protection of human rights and freedoms and the fight against terrorism
Hierarchy of norms
Standards of control
The BiH Constitution and the ECHR
Isolated applicability of agreements referred to in Annex I to the BiH Constitution
Instruments for the protection of human rights referred to in Annex I to the BiH Constitution: international status versus constitutional status
Instruments for the protection of human rights referred to in Annex I to the BiH Constitution: full protection or solely in connection with the prohibition of discrimination
Comparing standards of review
The scope of control
The Constitutional Court of BiH
Human Rights Chamber
B. Maximum protection of fundamental human rights and freedoms (Article II.1 of the BiH Constitution)
C. Obligation to directly apply the ECHR (Article II.2 of the BiH Constitution)
The right to life and the abolition of the death penalty
Survey
Article 2 of the ECHR
The scope of protection
Restriction of human rights and fundamental freedoms
Justification of interference with the right to life
Cases under Article 2, paragraph 2 of the ECHR
ii. Possibility of the legal restriction of human rights and fundamental freedoms
iii. Court sentence
Additional Protocol No. 6 to the ECHR
Optional Protocol No. 2 to the International Covenant on Civil and Political Rights, whose aim is the abolishment of the death penalty
Prohibition of torture (Article 3 of the ECHR)
Prohibition of slavery and forced labour (Article 4 of the ECHR)
Rights to liberty and security (Article 5 of the ECHR)
Prohibition of arbitrary deprivation of liberty (Article 5.1 of the ECHR)
Justification for restriction of the right to liberty and security
Lawful arrest
Particular grounds for excluding the unlawfulness
Article 5, paragraph 1(a)
ii. Article 5, paragraph 1(b)
iii. Article 5, paragraph 1(c)
iv. Article 5, paragraph 1(d)
Article 5, paragraph 1(e)
vi. Article 5, paragraph 1(f)
Obligation to inform the person concerned of the reasons for his arrest and of any charge against him/her (article 5, paragraph 2 of the echr)
it is obligatory to bring the accused before a judge “promptly” or to release him from detention (article 5, paragraph 3 of the echr)
i Bringing a suspect before a judge “promptly”
ii. Trial within a reasonable time or release from detention
Habeas corpus (Article 5, paragraph 4 of the ECHR)
Compensation, Article 5, paragraph 5 of the ECHR
Competing provisions
The right to a fair trial (Article 6 of the ECHR)
Introduction: Judiciary and War
The general right to a fair trial (Article 6 paragraph 1 of the ECHR)
Conditions of Application
Overlapping as to the scope of work
ii. Proceedings related to the “determination” of civil rights and obligations
iii. “Civil” Claim
iv. “A criminal charge”
An independent and impartial tribunal established by law
“Tribunal”
ii. “Tribunal established by law”
iii. Independent tribunal
iv. Impartial tribunal
“The right of access to court”
Decision-making within a reasonable time
Computing the length of the proceedings
ii. Criteria as to the reasonable length of proceedings
iii. Digression: Damages for an unreasonable length of proceedings
“Equality of arms” and the right to a hearing
Public hearing
Other general requirements of fair proceedings
i Appropriate and coherent reasoning of a decision
ii. Evidentiary proceedings
Interpretation and application of rights in good faith
Presumption of innocence – in dubio pro reo (Article 6, paragraph 2 of the ECHR)
Special rights to protection as part of a fair proceeding (Article 6, paragraph 3 of the ECHR)
The overlapping of the scope of activities
Obligation to inform a person of the nature and cause of the accusation, and the free-of-charge assistance of an interpreter (Article 6, paragraph 3(a) and (e) of the ECHR)
The right to defence (Article 6, paragraph 3(b) and (c) of the ECHR)
Presenting evidence and witnesses (Article 6, paragraph 3(d) of the ECHR)
No punishment without law (Article 7 of the ECHR)
Nullum crimen sine lege, nulla poena sine lege (paragraph 1)
Punishment according to the general principles of law recognised by civilised nations
Right to respect for private and family life (Article 8 of the ECHR)
Introduction
Right to respect for private and family life
The right to respect for home
The scope of protection
Interference with the protected scope of the right to home
Justified interference with the right to home
The lawfulness of interference
The legitimate aim and necessity in a democratic society
Excursus: The occupancy right in Bosnia and Herzegovina
Application of the Law on Housing Relations
ii. Annex 7 – Repossession of abandoned property
iii. Annex 7 – Repossession of JNA apartments
Respect for various forms of communication
Freedom of thought, conscience and religion (Article 9 of the ECHR)
Introduction
Freedom of thought
Freedom of religion
The scope of protection
Interference with the right to freedom to manifest one’s religion and justification
The supremacy of law
The principle of proportionality
Freedom of expression (Article 10 of the ECHR)
The scope of protection
Interference with (restriction of) the freedom of expression and a justification for it
The supremacy of law
A basis in the national law
ii. Accessibility
iii. Foreseeability
Legitimate aim
Necessary in a democratic society
Freedom of peaceful assembly and association with others (Article 11 of the ECHR)
Introduction
The scope of protection
Interference with the right to freedom of assembly and association, and a justification for it
The supremacy of law
Necessary in a democratic society and in pursuance of a legitimate aim, within the meaning of paragraph
Legitimate aims
ii. Necessary in a democratic society
Right to marry (Article 12 of the ECHR)
Right to an effective remedy (Article 13 of the ECHR)
The scope of protection
As to Article 6 of the ECHR and other lex specialis
Legal protection from individual decisions of the High Representative
Prohibition of Abuse of Rights (Article 17 of the ECHR)
Protection of property (Article 1 of Additional Protocol No. 1 to the ECHR)
Introduction
War and ownership
The so-called occupancy right as a socially restricted real right
Relation between Article 1 of Additional Protocol No. 1 to the ECHR and Article II.3(k) of the BiH Constitution
Dogmatic particularities of the right to property
The scope of protection
A summary of basic principles
In rem and in personam legal positions
Property rights with public character
Positive obligations to protect the right to property
There is no protected “property” within the meaning of Article 1 of Additional Protocol No. 1 to the ECHR
Interference with the right to property
Deprivation: de facto and de iure
Control of use
Positive obligations of protection
Justification
Lawfulness of interference with the right to property
Compatibility with the conditions provided for by the general principles of international law
Interference with the right to property in the general/public interest
Proportionality (fair balance)
Institutional guarantee and theory of the “essence” of the right to property (“Wesensgehalt”)
Right to education (Article 2 of Additional Protocol No. 1 to the ECHR)
Right to free elections (Article 3 of Additional Protocol No. 1 to the ECHR)
Prohibition of imprisonment for debt (Article 1 of Additional Protocol No. 4 to the ECHR)
Right to liberty of movement (Article 2 of Additional Protocol No. 4 to the ECHR)
Expulsion of nationals and aliens (Articles 3 and 4 of Additional Protocol No. 4 to the ECHR and Article 1 of Additional Protocol No. 7 to the ECHR)
Introduction
Scope of protection
Common elements
Article 3 of Additional Protocol No. 4 to the ECHR
Article 4 of Additional Protocol No. 4 to the ECHR
Article 1 of Additional Protocol No. 7 to the ECHR
Interference with the safeguarded rights and justification for interference
Article 3 of Additional Protocol No.4 to the ECHR
Article 1 of Additional Protocol No.7 to the ECHR
Right of appeal in criminal matters (Article 2 of Additional Protocol No. 7 to the ECHR)
Article 4 of Additional Protocol No. 7 to the ECHR – Right not to be tried or punished twice – ne bis in idem
Article 1 of Additional Protocol No. 12 to the ECHR – General prohibition of discrimination
Employment related rights: Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights
Introductory notes: reinstatement to former position
Overview of Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights through the case-law
Right of everyone to social security and social insurance (Article 9 of the of the International Covenant on Economic, Social and Cultural Rights)
Access to public service (Article 25(c) of the International Covenant on Civil and Political Rights)
European Charter for Regional or Minority Languages (1992)
D. Article II.3 of the BiH Constitution – an example of enumeration of human rights
E. Discrimination
Comparative introduction
Introduction
European and International Norms
Sources of the Prohibition
Grounds
Areas of Activity and Restricted Applicability
Implementation Mechanisms
Discrimination
The Key Elements
Forms of Discrimination
Proof and Remedies
Justifications
General Considerations
Measures to Help Certain Groups
Emergencies
Conclusion
Article II.4 of the BiH Constitution – Non-discrimination
Introductory note as to the prohibition of discrimination
Cases of group discrimination as a result of armed conflict
The scope of protection against discrimination
Identifying and determining comparable groups
Grounds of discrimination
Justification
Indirect discrimination and the obligation of positive protection
There is no right to equality in “unlawfulness”
Group cases of ethnically motivated discrimination
Republika Srpska as a “State of Serb people”
Serbian, Bosnian and Croatian languages as official languages
Role of the Orthodox Church
“De-Ethnisation” of town names
Entity symbols – the enemy of the return process
Coat of arms and flag of the Federation of BiH
ii. Coat of arms, flag and anthem of the Republika Srpska
iii. Use of symbols in accordance with the moral norms of Serb people
F. Article II.5 – Refugees and Displaced Persons
Introduction
Groups of cases
Delays or denial of the right to repossession of property
Disputes on occupancy right and other rights to possession
JNA apartments
Stalling or suspending the enforcement of the compensation for damage
War damage
“Old foreign currency savings”
Pensions and social protection
JNA pensions
Social protection and the issue of pensions “exceeding the Entities’ demarcation lines”
Agreement on Refugees and Displaced Persons (Annex 7 to Dayton Peace Agreement)
Right to return as a special individual right
G. Article II.6 – Implementation
H. article II.7 – international agreements
I. Article II.8 Cooperation
Introduction
Cooperation with the ICTY
Cooperation on the basis of Article 29 of the ICTY Statute
ICTY Arrest Warrants and Domestic Extradition Law
“Transfer” and “Surrender” versus “Extradition”
ii. Transfer of Entities’ Citizens – Decision of the Constitutional Court of BiH No. 5/98-
iii. Domestic Legislation and Cooperation Obligations
iv. Criminal Code and Election Law of BiH
Implementation of Arrest Warrants and Requests for Transfer
International Actors Performing Cooperation Obligations “on behalf” of the BiH Authorities
Extension of Cooperation Obligations to the Territory of Other States
Judicial Review
Other Requests for Cooperation under Article 29 of the ICTY Statute
Orders for Subpoena of Witnesses
Orders Issued to Individuals
Persons Exempted from the Obligation to Testify
ii. Transfer of Evidence
Cooperation in light of the completion strategy of the ICTY
The completion strategy of the ICTY and outstanding arrests
Implementation at the National Level
The Orders of the High Representative
ii. The Completion Strategy and the Transfer of Cases from the ICTY to the Authorities of BiH
Background
The Decisions of the ICTY Referral Bench
Compliance by BiH Authorities
The Processing of Cases at the National Level and the Use of ICTY Evidence before the Court of BiH
The Application of the BiH Criminal Code
Enforcement of Sentences in Cases Transferred under Rule 11bis
Other Aspects of Cooperation with the ICTY
The Rules of the Road Review Process
Regional Cooperation in War Crimes Cases as Cooperation with the ICTY
Other Requests for Assistance by the ICTY
Unrestricted access to human rights monitoring mechanisms established for BiH
Cooperation of Competent Authorities with other Bodies under Article II.
Article III – Responsibilities of and Relations between the Institutions of Bosnia and Herzegovina and the Entities
A. Introduction
B. Responsibilities of the State outside the scope of Article III.1 of the BiH Constitution
C. International obligations imply responsibilities
D. Concurrent competences
Overview
Framework legislation
Special case: Entities’ special parallel relationships with neighbouring states
E. Article III.5 – Additional responsibilities
Introduction
Transfer of responsibilities or assumption of responsibilities?
Article III.5(a)
Responsibilities as are agreed by the Entities
Who are the parties to the agreement referred to in Article III.5(a)? Does Bosnia and Herzegovina need to be party?
Can Entities regulate the manner in which they consent to an agreement?
Effects of an agreement
What can be transferred? The constitutional responsibility itself or the right to exercise a responsibility?
ii. Does the content of a transfer agreement extend the normative field that can be used by the Court to control the constitutionality of an act?
iii. Withdrawal from an agreement
Formal requirements
Responsibilities provided for in Annexes 5 through 8 to the General Framework Agreement
Responsibilities necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina.
Additional institutions may be established as necessary to carry out such responsibilities.
Article III.5(b)
Conclusion
Article IV – Parliamentary Assembly
A. Introduction
In retrospect: The first elections held under the Agreement on Elections (Annex 3 to the Dayton Peace Agreement) by the OSCE
B. House of Peoples (Article IV.1)
C. House of Representatives (Article IV.2)
D. Procedures (Article IV.3)
Entity Voting Requirement
Vital Interest
Dissolution of the House of Peoples
Immunity
E. Powers (Article IV.4)
Article V – The Presidency of Bosnia and Herzegovina
A. Article V.1: Election and Term
The Tri-Presidency
Voting Rights Restrictions
Succession
B. Article V.2: Procedures
Rotation
Vital Interest
C. Article V.3: Powers of the Presidency
Article V.3–Powers
Presidential powers not found in Article
Article III.5(a)-Powers
Dissolving the House of Peoples
Appointment of the Central Bank Governing Board
Appointment of the Commission on National Monuments
Cooperation of Entities
Application of V.2(d) – Vital Interest Provision
D. Article V.4: Council of ministers
Introduction
Nomination and appointment of the members of the Council of Ministers
Nomination of the Chair of the Council of Ministers
Chair or Co-Chairs of the Council of Ministers
Constituent people’s representation and the Chair of the Council of Ministers
Decision of the Presidency
Nomination of the members
Lists of ministers
Distribution of Portfolios
Status of the Deputy Ministers
Eligibility
Article IX.3 and V.4(b)
ii. Article IX.
Approval by the House of Representatives of the Parliamentary Assembly
Role of the House of Representatives
Role of the House of Peoples
Relationship between the Council of Ministers and the Entities
Functioning of the Council of Ministers
Powers of the Council of Ministers
E. Article V.5: Standing Committee on Military Matters
Article V.5(a)
Article V.5(b)
Conclusion
Article VI – Constitutional Court of Bosnia and Herzegovina
A. Introduction
B. Article VI.1 (composition)
C. Procedure (Article VI.2)
D. Jurisdiction (Article VI.3)
Abstract control of constitutionality, organic and federal disputes (Article VI.3(a) of the BiH Constitution)
Constitutional disputes
Authorised applicants
Formal requirements under Article 19 et seq. of the Rules of the BiH Constitutional Court
Subject of the request (ratione materiae)
Abstract control of constitutionality
Federal disputes and disputes between the State authorities
Special federal disputes: Parallel relationships of the Entities with neighbouring states
Appeal, i.e., constitutional review [Article VI.3(b) of the BiH Constitution and application to the Human Rights Chamber (Article VIII.1 of Annex 6)]
Time limit
Constitutional Court
Human Rights Chamber
Formal preclusive time limit (period)
Exhaustion of legal remedies
Constitutional Court
Basic elements of the principle of exhaustion of legal remedies
ii. Exceptions to the obligation of legal remedy exhaustion
iii. Case-law in respect of certain legal remedies
Human Rights Chamber
Introduction
ii. Basic elements of the principle of exhaustion of legal remedies
iii. Exception to the obligation of legal remedies exhaustion
iv. Special cases of effective and ineffective legal remedies
Manifest ill-foundedness
Constitutional Court
Human Rights Chamber
Lack of jurisdiction of the Constitutional Court
Withdrawal of appeal or application
Res iudicata, anonymity and other cases of pending proceedings (lis alibi pendens)
Prohibition of abuse of appeal
As to the changed legal circumstances
Ratione materiae competence
The subject of dispute
Constitutional Court
Court decision
ii. “Silence”, the courts’ failure to act
iii. Administrative acts
iv. Laws and other norms
Human Rights Chamber
Competence ratione personae (Article 16, paragraph 4, items 5 and 10)
Constitutional Court
Authorisation to file an appeal (standing to sue)
ii. Respondent party with regard to the appellant (standing to be sued)
Human Rights Chamber
Authorisation to file an application (standing to sue)
ii. Respondent party in the proceedings before the Chamber (standing to be sued)
Particularly important: There are no judicial proceedings before the Constitutional Court after proceedings have already been held before the Human Rights Chamber and vice versa
Case-law of the Constitutional Court
The case-law of the Human Rights Chamber
Comment
Competence ratione temporis
Constitutional Court
Human Rights Chamber
Limitation on the possibility of review: Bound by the allegations from the application/appeal
Constitutional Court
Human Rights Chamber, Human Rights Commission
Setting priorities
Particularity: Competence to review international interventions
Legal acts of the High Representative (Annex 10 of GFAP)
Legal grounds: Agreement on Civilian Implementation (Annex 10)
ii. Bosnia and Herzegovina as a protectorate?
iii. Possibility of judicial review of the High Representative’s authorities
iv. Possibility for judicial review of imposed laws
• Standpoint of the BiH Constitutional Court
• Standpoint of the Human Rights Chamber
Possibility for judicial review of individual acts of the High Representative
• Standpoint of the BiH Constitutional Court
• Standpoint of the Human Rights Chamber
vi. Possibility of judicial review of acts passed by the OHR in “a grey zone”
vii. Commentary
viii. Validity of the legal acts of the OHR upon the completion of the mandate
Legal acts of authorities referred to in Annex
Standpoint of the Human Rights Chamber
ii. Standpoint of the BiH Constitutional Court
• No review of election rules referred to in Annex
• No review of judgments of the Election Appeals Sub-Commission
iii. Commentary
Legal acts of the Commission for Real Property Claims (Commission for Real Property Claims – Annex 7 to the GFAP)
Case law of the BiH Constitutional Court: no review of the CRPC decisions
ii. Standpoint of the Human Rights Chamber, i.e., of the HRC within the BiH Constitutional Court of BiH
iii. Commentary
Intervention by SFOR (Annex 1-A to the GFAP)
Standpoint of the Human Rights Chamber
ii. Standpoint of the BiH Constitutional Court
Activity of IPTF (Annex 11 to the GFAP)
Standpoint of the Human Rights Chamber, i.e., the Human Rights Commission within the BiH Constitutional Court
ii. Standpoint of the Constitutional Court
iii. Commentary
General reflections on the issue of review of international interventions by domestic authorities
Obligatory nature of norms
ii. Responsibility for violation of rights
iii. Authorisation to conduct review
iv. Criteria
Procedure for referral of issues according to Article VI.3(c) of the BiH Constitution
Authorisation to submit a request
Obligation to submit a request
Review Criteria
Subject of review
Concrete review of a norm
International verification
Relevance for deciding
Form
Examining vital national interest (Article IV. 3(f) of the BiH Constitution)
E. Brčko District – Constitution and Law
Origin
International position of the Brčko District
International interference
Brčko as per the Dayton Agreement
Final Award
Legal Status of the District
Status of the Brčko District relating to public law
Sources
Constitution of Bosnia and Herzegovina
Constitutions of Entities
Statute of the Brčko District
Organisation and procedure in the district organs
General provisions
Assembly of Brčko District
Government
Judiciary in the capacity of a third authority
International control and the Supervisor
Status of the Supervisor
As to individual competences
Supervisor in a web of international law and domestic regulations
F. decisions (article VI.5)
Major decisions
Constitutional Court of BiH
Appeals
Procedure of reviewing the constitutionality of norms
Retrospective: Instruments of the Human Rights Chamber
Overview
Legal remedies in the event of violations of human rights and freedoms
General remarks
ii. “Natural restitution” and prevention
iii. Compensation
Imposing an interim measure
Constitutional Court
View in retrospect: The Human Rights Chamber, i.e., the Human Rights Commission within the BiH Constitutional Court
Effect and review of decisions
The Constitutional Court
Effect of decisions
The review of decisions of the BiH Constitutional Court
The Human Rights Chamber, i.e., the Human Rights Commission within the BiH Constitutional Court
Enforcement of decisions
Introduction
Appropriate provisions
Constitutional Court
Human Rights Chamber, i.e., Human Rights Commission within the BiH Constitutional Court
Enforcement of decisions in practice
BiH Constitutional Court
Human Rights Chamber
Closing observations and summary
Article VII – Central Bank
A. Introduction
B. Constitutional Musts and the CBBiH Law
Strict Currency Board
Constraints to be regulated by law
Operational Independence
The Main Participants’ Roles
Accountability
C. Internal decision making and monitoring
D. Implementation
Article VIII – Finances
A. Introduction
B. Article VIII, its content, the competency it confers and its functionality
The need for reform and the Transfer of Competency Agreement
The Law on Indirect Tax System in Bosnia and Herzegovina (ITA Law)
The Law on Payments into the Single Account and Distribution of Revenues (Single Account Law)
The Transfer of Competency Agreement and the Constitutional Court
C. Concluding Comments 967 Article IX – General provisions
A. About Article
Article IX – General provisions
A. About Article IX
Article X – Amendment
A. Paragraph 1: Amendment Procedure
B. Paragraph 2: Human rights and fundamental freedoms
Article XI – Transitional Arrangements
Article XII – Entry into Force
Annex I to the BiH Constitution
Annex II to the BiH Constitution Transitional agreements
Bibliography
Download Commentary Version 2009
Contact
sfsfsdfs
Share
Print
Search CC Decisions
Share this page
Facebook
X
LinkedIn
Email