Introduction, Nedim Ademović and Christian Steiner

On December 14^th, 1995, the Republic of Croatia, Republic of Bosnia and Herzegovina and Federal Republic of Yugoslavia signed the General Framework Agreement for Peace in Bosnia and Herzegovina, known as the Dayton Peace Agreement. In addition, the Signatory Countries and the BiH Contracting Parties signed 12 Special Agreements designated as Annexes to the General Framework Agreement for Peace in Bosnia and Herzegovina. The Special Agreements were signed by the Signatory Parties made up of different members and related to the civil and military components of the peace agreement. By signing this peace agreement, the adversaries put an end to the worst armed conflict in Europe since World War II.

Since then, in Bosnia and Herzegovina, efforts have been made with the large support and participation of the international community in order to overcome multiple consequences of the war which divided the country and society. That division is still a problem in Bosnia and Herzegovina. Moreover, the country is passing through a transition process, changing from a moderate totalitarian/ socialist system into a democratic society and market economy, a process which is years late due to the war. The legacy of the sudden and non-democratic dissolution of the Socialist Federal Republic of Yugoslavia, which caused a difficult economic and political crisis in the whole region (with the exception of Slovenia and parts of Croatia), rendered overcoming the complex problems of the transition process more difficult. Finally, internal social tensions, caused by the intentional destruction of the multi-ethnic and multi-cultural identity of Bosnia and Herzegovina as a special characteristic of the country, rendered solving multilayered problems of the country more difficult.¹

The State of Bosnia and Herzegovina as a legal successor of the Republic of Bosnia and Herzegovina gained a new Constitution of Bosnia and Herzegovina from Annex 4 of the Dayton Peace Agreement. The population accepted and accepts the newly organized State in different manners depending on their ethnic affiliation. Nationals and internationals have developed a view fluctuating between love and hate towards the new constitutional organization, which was rashly shaped into the Constitution of Bosnia and Herzegovina in Dayton. Some contemptuously consider such a Constitution as inappropriate for establishing an operative State. Others ignore it and confine themselves to studying the Constitutions of the Entities. Despite multiple efforts to reform the Constitution, the text agreed to in 1995 is still in force, although, without formal amendments,² some matters have been amended by agreements between the Entities and State, particularly the matter of distribution of responsibilities, and by acts of the High Representative for Bosnia and Herzegovina. The applicability of those constitutional modifications, which are not written into the text of the Constitution itself and call for new reforms, give rise to a number of practical issues, particularly in the field of distribution of competencies between the Entities and the State.

The Constitutional Court of Bosnia and Herzegovina as a permanent State judicial body has far-reaching competences. In addition to six national judges, three international judges have been appointed as a part of this body safeguarding peace. Based on the Agreement on Human Rights (Annex 6 to the General Framework Agreement for Bosnia and Herzegovina) the Human Rights Chamber was established as a part of the Commission on Human Rights. The competences of the Human Rights Chamber show similarities to the competences of the European Court of Human Rights, so that its competences overlap with the competences of the Constitutional Court of Bosnia and Herzegovina in the field of protection of constitutional human rights and freedoms. Unlike the Constitutional Court of Bosnia and Herzegovina, the Human Rights Chamber for Bosnia and Herzegovina, which operated under that name as an independent institution and the activities of which ended on 31 December 2003, was composed of a majority of international judges – eight foreign judges and six national judges.

All the decisions of the Human Rights Chamber for Bosnia and Herzegovina relating to the admissibility and merits, merits, admissibility of review and review itself have been analysed in this Commentary, including relevant decisions on admissibility, so-called decisions to strike out and other decisions (such as those relating to compensation). The same applies to the decisions of the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (which operated from 1 January 2004 to 31 December 2006). As to the case-law of the Constitutional Court of Bosnia and Herzegovina, all decisions published until 2008 have been taken into account, including a few subsequent decisions relevant to this analysis. Although the secondary literature relating to the conflict in Bosnia and Herzegovina and issues relating to safeguarding peace is comprehensive, works relating to the constitutional issues and commentaries on certain decisions are rare. The authors and publishers of this Commentary consider this text as a first step towards more intensive research and study of contemporary BiH constitutional law.

The aim of this Commentary is to make legal practitioners in Bosnia and Herzegovina more familiar with the modern constitutional case-law of the Constitutional Court of Bosnia and Herzegovina, the former Human Rights Chamber for Bosnia and Herzegovina and the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina. The users and readers should be free of the uncomfortable feeling which this legal field causes, since it is often politicised. Their awareness and knowledge of modern constitutional law in Bosnia and Herzegovina should be raised in order to strengthen the legal state, democracy and the protection of human rights and freedoms. A comprehensive table of contents of the Commentary is made first of all in order to make it possible for the readers to use it more easily. In particular, the Commentary is made according to the BiH Constitution itself starting from its Preamble and finishing with the last part of the Constitution of Bosnia and Herzegovina – Annex II to the Constitution of Bosnia and Herzegovina. Every important segment of each individual Article of the Constitution has been elaborated in chronological order, including certain supplements which may be useful. Therefore, the contents fully follow the constitutional structure. This also applies to the constitutional rights and freedoms as a relevant part of the Commentary. Two indexes – an index of key words and an index of decisions – are attached at the end of the Commentary in order to make it possible for users to find the text in the fastest and easiest manner, i.e., by the issues they are interested in, if the contents themselves are not helpful, or if their requests are more detailed.

Before we express our gratitude, we would like to say that this Commentary would have never been created if the judges and legal advisors of the Constitutional Court of Bosnia and Herzegovina and Human Rights Chamber for Bosnia and Herzegovina had not achieved remarkable results during the period of the last 15 years, which we recognized as valuable for academic and expert elaboration. Moreover, both institutions played a large role in our expert and professional training for a certain period of time. Taking this into account, this Commentary, although expressing our personal opinion, represents a kind of personal acknowledgement and gratitude to these institutions.

Finally, we would like to express our sincere gratitude to the whole team of the Rule of Law Program South East Europe of the German political foundation

Konrad Adenauer, headed up by the dear and tireless Dr. iur. Stefanie Ricardom Roos, which has recognized the significance of this project and provided overall long-lasting financial, professional and human support to its realization. We also owe a debt of gratitude to the Embassy of the Kingdom of Norway in Sarajevo as a co-financier of this project. We would like to express our warmest gratitude to all co-authors of this Commentary: Prof. Dr. Constance Grewe, Prof. Dr. Joseph Marko, Mechtild Lauth, LL.M., Prof. Jeremy McBride, Philippe Leroux-Martin, LL.M., Dr. iur. Ric Bainter, Edouard d’Aoust, Prof. Dr. Ulrich Karpen, Peter Nicholl and Mark Campbell, who, despite their commitments, have found free time for this important project. The Commentary on the Constitution of Bosnia and Herzegovina could not have been finished without their help. We express out deepest gratitude for the inconceivable efforts made by the translators for English and German: Sabina Popovac, Azra Abdulahagić,

M. Sc. Dragana Čolaković, Aida Ademović, Dijana Prljić and Nermana Mršo, proof-reader for English Dr. iur. Brandon Wilson and Toby Cadman, and finally Amela Harba-Bašović in charge of print preparation and layout design. Despite the huge pressure, they completed this task in a prompt and efficient manner and, what is more, they endeavoured to contribute to the quality of this project by scrutinizing the text, by proposing better solutions, alternatives or technical improvements. Finally, we express our greatest gratitude to our families and friends who gave us great support during our work on this project and who were deprived of normal home life during our work on this Commentary. We therefore do hope that this Commentary will be worth the efforts we made during our work on this project. Finally, we would like to express our gratitude to all those persons that we could not mention by name, although they contributed in any way whatsoever to the successful finalization of this Commentary.

Dr. iur. Christian Steiner Dr. iur. Nedim Ademović