The Constitutional Court of Bosnia and Herzegovina (Bosnian: Ustavni sud Bosne i Hercegovine) is a special court sui generis, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina, as stated in Article VI, paragraph 3 of the Constitution ("The Constitutional Court shall uphold this Constitution"), and it is considered to be the highest judicial authority, since it has the appellate jurisdiction over issues under the Constitution arising out of a judgment of any other court in Bosnia and Herzegovina (Article VI, paragraph 3.b).

Contents 1 History 2 Jurisdiction 2.1 Disputes arising under conflict of jurisdiction and an abstract review of constitutionality 2.2 Appellate jurisdiction 2.3 Referral of an issue by other courts 2.4 Unblocking of the Parliamentary Assembly 3 Composition of the court 4 Notable decisions 4.1 Decision on the constitutionality of the peace agreement 4.2 Decision on the constituency of peoples 4.3 Decision on the insignia of entities 4.4 Decision on the names of the cities 4.5 Decision on the conformity of certain provisions of the Constitution of B&H with the European Convention and its Protocols 5 References 6 External links

[edit] History

Bosnia and Herzegovina provides a rare example of a country in transition from a socialist system which nevertheless has a history of having a constitutional court, since the former Yugoslavia was the only country which had a system of the constitutional courts already in socialist regime. The first Constitutional Court in former Yugoslavia was created as early as 1963. This date coincided with the starting point of the history of a constitutional court in Bosnia and Herzegovina. In accordance with the federal structure of the former SFRY, not only was there a Constitutional Court at the federal level, but prior to the dissolution of former Yugoslavia, the six Republics and even the two Autonomous Provinces – Kosovo and Vojvodina – also had their own Constitutional Courts.

The Constitutional Court of Bosnia and Herzegovina was established for the first time on 15 February 1964 pursuant to the Constitution of 1963. Its existence was confirmed in the Constitution of 1974. The jurisdiction of this Constitutional Court consisted primarily of an abstract normative control. Thus, it would take decisions as to the conformity of the (Republic’s) laws with the Constitution, and as to the constitutionality and legality of other regulations and general and self-management acts. It would also be called upon to resolve disputes between the Republic and other political-territorial units, in particular, conflicts of jurisdiction as between the courts and other bodies of political-territorial units. The 'Law on the Constitutional Court' regulated issues concerning the organization, jurisdiction and procedures before this Constitutional Court.

The role and jurisdiction of the Constitutional court was redefined in the Dayton Peace Agreement (Annex IV - Constitution of Bosnia and Herzegovina, Article VI).

[edit] Jurisdiction

In general, the jurisdiction of the Constitutional Court is defined under Article VI.3 and Article IV.3 of the Constitution. Within its overriding duty to 'uphold' the Constitution of Bosnia and Herzegovina, it consists of five types of jurisdiction. The proceedings to be followed and type of decision to be given will depend upon the type concerned and the nature of the case.

Essentially, the distinction between these various types of jurisdiction is based on the extent to which the Constitutional Court, in addition to the classical task of upholding constitutionality, also has, in certain types of disputes, a more direct relation with the judicial or legislative authority concerned.

[edit] Disputes arising under conflict of jurisdiction and an abstract review of constitutionality

Disputes arising under conflict of jurisdiction

The Constitutional Court has exclusive jurisdiction to decide any dispute that arises under the Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina. In effect, the Court has to decide on positive or negative conflicts of jurisdiction, or any other disputes that may arise under relations between the state and entity authority and/or the institutions of Bosnia and Herzegovina.

Review of constitutionality of laws

The Constitutional Court has jurisdiction over issues whether any provision of an Entity's constitution or a law of an Entity is compatible with the Constitution of Bosnia and Herzegovina.

Although, the Constitution of Bosnia and Herzegovina explicitly focuses only on 'provisions of an Entity's law', this also implies a review of constitutionality of laws of Bosnia and Herzegovina in accordance with the general task of the Court to uphold the Constitution of Bosnia and Herzegovina.

In special cases, the Court also has jurisdiction to examine whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with the Constitution including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.

Referral of disputes

In both presented cases, under the Constitution, disputes may be referred only by the following authorized parties: a member of the Presidency, the Chair of the Council of Ministers, the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, one-fourth of the members of either chamber of the Parliamentary Assembly, or one-fourth of either chamber of a legislature of an Entity.

[edit] Appellate jurisdiction

The appellate jurisdiction of the Constitutional Court is established by the constitutional provision according to which the Constitutional Court “shall have appellate jurisdiction over issues under this Constitution arising out of a judgement of any other court in Bosnia and Herzegovina”.

This implies that the Constitutional Court is the highest judicial body in the land. This confirms its role as being a special institutional safe-guard for the protection of the rights and freedoms enshrined in the Constitution.

This provision is effected through the Rules of the Constitutional Court so the Court, if it finds an appeal well-founded, may act in one of two ways: the Court may act as a court of full jurisdiction and it may decide on the merits or it may quash the challenged decision and refer the case back to the court that adopted the judgement for renewed proceedings. The court whose decision has been quashed is required to take another decision in expedient proceedings and, in doing so, it shall be bound by the legal opinion of the Constitutional Court concerning the violation of the appellant’s rights and the fundamental freedoms guaranteed under the Constitution.

Appellants, who believe that the judgement or other decision of any court is in violation of their rights, have the right to lodge an appeal after all legal remedies have been exhausted while the Court shall also consider the effectiveness of possible legal remedies.

[edit] Referral of an issue by other courts

The Constitutional Court has jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention on Human Rights and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law.

In general, the Constitutional Court may uphold a law pertinent to the lower court's decision or proclaim it invalid. The latter shall be required to proceed pursuant to the decision of the Constitutional Court.

[edit] Unblocking of the Parliamentary Assembly

The jurisdiction of the Constitutional Court in the case of 'blockage' of the work of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina concerning an issue of destructiveness to the vital national interest, represents in many ways atypical area of activity of a constitutional court, as this represents a close 'interface' between the “judicial” and “legislative” authorities.

The Constitutional Court here resolves a dispute in which a proposed decision of the Parliamentary Assembly, according to the opinion of a majority of the delegates representing any of the three constituent peoples in the House of Peoples, is considered to be destructive to the vital national interest, whilst at the same time all 'parliamentary means' for the resolution of this issue in the House of Peoples have been exhausted.

[edit] Composition of the court

The Constitutional Court consists of nine judges, out of which four are selected by the House of Representatives of the Federation of Bosnia and Herzegovina, two are selected by National Assembly of the Republic of Srpska, and the remaining three members are selected by the President of the European Court of Human Rights after consultation with the Presidency of Bosnia and Herzegovina (Article VI.1.a).

The Constitution also states (Article VI.1.b) that the judges must be "distinguished jurists of high moral standing", and that any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights cannot be citizens of Bosnia and Herzegovina or of any neighbouring state.

The term of judges that were initially appointed was five years, and were not eligible for reappointment. Judges subsequently appointed could serve until age 70, unless they resigned or were removed for cause by consensus of the other judges. The Constitution also states that for appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly could provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights, however it has still not changed that.

It should also be noted that the Constitution does not require the proportionality of the "constituent peoples" in the Court, however a constitutional custom developed by which a Constitutional court should have two judges from every of the constituent peoples (Bosniaks, Serbs and Croats), besides the three foreign judges.

Current composition of the Court:

• President: Seada Palavrić
• Vice-President: David John Feldman
• Vice-President: Valerija Galić

Judges:

• Miodrag Simović
• Tudor Pantiru
• Mato Tadić
• Constance Grewe
• Mirsad Ćeman
• Krstan Simić

The way the judges are selected has created controversies over the years. Since there are no other criteria or formal guidelines besides the criteria that judges should be "distinguished jurists of high moral standing", this has led to a situation that it is easier to become a judge of the national constitutional court then the judge of a lower court, since that position has more requirements and specific process of vetting. Also, political influence has a great part in the appointment of judges, so persons with very active political carriers have been chosen by the parliaments of entities, like the current judges Seada Palavrić and Mirsad Ćeman (former long time members of SDA party) or Krstan Simić (member of SNSD party before his selection)^[1][2].

[edit] Notable decisions

[edit] Decision on the constitutionality of the peace agreement

On 13 October 1997, the Croatian 1861 Law Party and the Bosnia-Herzegovina 1861 Law Party requested the Constitutional Court to annul several decisions and to confirm one decision of the Supreme Court of the Republic of Bosnia and Herzegovina and, more importantly, to review the constitutionality of the General Framework Agreement for Peace in Bosnia and Herzegovina, since they alleged that the agreement violated the Constitution of Bosnia and Herzegovina in a way that it undermined the integrity of the state and that it may cause the dissolution of Bosnia and Herzegovina. The Court reached the conclusion that it is not competent to decide the disputes in regards to the mentioned decisions, since the applicants were not subjects that were identified in Article VI.3 (a) of the Constitution, in regard to those who can refer disputes to the Court. The Court also rejected the other request stating:

(...) the Constitutional Court is not competent to evaluate the constitutionality of the General Framework Agreement as the Constitutional Court has in fact been established under the Constitution of Bosnia and Herzegovina in order to uphold this Constitution (...) The Constitution of Bosnia and Herzegovina was adopted as Annex IV to the General Framework Agreement for Peace in Bosnia and Herzegovina, and consequently there cannot be a conflict or a possibility for controversy between this Agreement and the Constitution of Bosnia and Herzegovina.^[3]

This was one of the early cases in which the Court had to deal with the question of the legal nature of the Constitution. By making the remark in the manner of obiter dictum concerning the Annex IV (the Constitution) and the rest of the peace agreement, the Court actually "established the ground for legal unity"^[4] of the entire piece agreement, which further implied that all the annexes are in the hierarchical equality. In later decisions the Court confirmed this by using other annexes of the peace agreement as a direct base for the analysis and not only in the context of systematic interpretation of the Annex IV. However, since the Court rejected the presented request of the appellants, it did not go into details concerning the controversial questions of the legality of the process in which the new Constitution (Annex IV) came to power, and replaced the former Constitution of the Republic of Bosnia and Herzegovina.

[edit] Decision on the constituency of peoples

On 12 February 1998, Mr. Alija Izetbegović, at the time Chair of the Presidency of Bosnia and Herzegovina, instituted proceedings before the Constitutional Court for an evaluation of the consistency of the Constitution of the Republika Srpska and the Constitution of the Federation of Bosnia and Herzegovina with the Constitution of Bosnia and Herzegovina. The request was supplemented on 30 March 1998 when the applicant specified which provisions of the Entities’ Constitutions he considered to be unconstitutional. The four partial decisions were made in a year 2000, by which many of articles of the constitutions of entities were found to be unconstitutional, which had a great impact on politics of Bosnia and Herzegovina, because there was a need to adjust the current state in the country with the decision of the Court. There was a narrow majority (5-4), in the favour of the applicant. In its decision, among other things, the Court stated:

Elements of a democratic state and society as well as underlying assumptions – pluralism, just procedures, peaceful relations that arise out of the Constitution – must serve as a guideline for further elaboration of the issue of the structure of BiH as a multi-national state. Territorial division (of Entities) must not serve as an instrument of ethnic segregation – on the contrary –it must accommodate ethnic groups by preserving linguistic pluralism and peace in order to contribute to the integration of the state and society as such. Constitutional principle of collective equality of constituent peoples, arising out of designation of Bosniacs, Croats and Serbs as constituent peoples, prohibits any special privileges for one or two constituent peoples, any domination in governmental structures and any ethnic homogenisation by segregation based on territorial separation. Despite the territorial division of BiH by establishment of two Entities, this territorial division cannot serve as a constitutional legitimacy for ethnic domination, national homogenisation or the right to maintain results of ethnic cleansing. Designation of Bosniacs, Croats and Serbs as constituent peoples in the Preamble of the Constitution of BiH must be understood as an all-inclusive principle of the Constitution of BiH to which the Entities must fully adhere, pursuant to Article III.3 (b) of the Constitution of BiH.^[5]

The formal name of this item is U-5/98, but it is widely known as the "Decision on the constituency of peoples" (Bosnian: Odluka o konstitutivnosti naroda), referring to the Court's interpretation of the significance of the phrase "constituent peoples" used in the Preamble of the Constitution of Bosnia and Herzegovina. The decision was also the basis for other notable cases that came before the court.

[edit] Decision on the insignia of entities

On 12 April 2004, Sulejman Tihić, then Chairman of the Presidency of Bosnia and Herzegovina, filed a request with the Constitutional Court of Bosnia and Herzegovina for the review of constitutionality of Articles 1 and 2 of the Law on the Coat of Arms and Flag of the Federation of Bosnia and Herzegovina (Official Gazette of Federation of BiH No. 21/96 and 26/96), Articles 1, 2 and 3 of the Constitutional Law on the Flag, Coat of Arms and Anthem of the Republika Srpska (Official Gazette of the Republika Srpska No. 19/92), Articles 2 and 3 of the Law on the Use of Flag, Coat of Arms and Anthem (Official Gazette of the Republika Srpska No. 4/93) and Articles 1 and 2 of the Law on the Family Patron-Saint’s Days and Church Holidays of the Republika Srpska (Official Gazette of Republika Srpska No. 19/92). On 2 December 2004 the applicant submitted a supplement to the request. Two partial decisions were made in a year 2006, when the Court found that the coat of arms and flag of the Federation of B&H, and coat of arms, anthem, family patron-saint days and church holidays of Republika Srpska were unconstitutional. In its decision, among other things, the Court stated:

The Constitutional Court concludes that it is the legitimate right of the Bosniak and Croat people in the Federation of BiH and the Serb people in the Republika Srpska to preserve their tradition, culture and identity through legislative mechanisms, but an equal right must be given to the Serb people in the Federation of BiH and Bosniak and Croat peoples in Republika Srpska and other citizens of Bosnia and Herzegovina. The Constitutional Court further holds that it cannot consider as reasonable and justified the fact that any of the constituent peoples has a privileged position in preservation of tradition, culture and identity as all three constituent peoples and other citizens of Bosnia and Herzegovina enjoy the rights and fulfil obligations in the same manner as provided for in the Constitution of Bosnia and Herzegovina and Constitutions of the Entities. Moreover, it is of a particular importance the fact that the identity of the constituent peoples, education, religion, language, fostering culture, tradition and cultural heritage are defined in the Constitution of the Federation of BiH and Constitution of the Republika Srpska, as the vital national interests of the constituent peoples.^[6]

The formal name of the item is U-4/04, but it is widely known as "Decision on the insignia of entities" (Bosnian: Odluka o obilježjima entiteta), since its merritum was about the symbols of entities. The Court has ordered the Parliament of the Federation of Bosnia and Herzegovina and the National Assembly of Republika Srpska to bring the contested legal documents in line with the Constitution of Bosnia and Herzegovina within six months from the publishing date of its decision in the Official Gazette of Bosnia and Herzegovina. Since the harmonisation was not done in that granted time-limit, that Court has, on January 27, 2007, adopted the Ruling on failure to enforce in which it established that the contested articles of the interpreted legal documents shall cease to be in force as of the date following the publishing date of the Ruling in Official Gazette of Bosnia and Herzegovina^[7]. On June 16 2007, the Government of Republika Srpska had adopted the provisional emblem of Republika Srpska, until it adopted the new Coat of Arms of Republika Srpska. It had also decided to use the melody of its former anthem "Bože pravde" as its new intermezzo anthem, but the Constitutional Court of Republika Srpska has declared such use of melody as unconstitutional as well, so the new anthem, "Moja Republika" was adopted. Both the new anthem (in relation to words moja zemlja - "may land") and new coat of arms have been contested by Bosniak members of National Assembly of Republika Srpska in front of the Constitutional Court of Republika Srpska. The Court declared the coat of arms to be unconstitutional since it did not represent Bosniaks in any way, while it rejected the claim in relation to the anthem.^[8]

[edit] Decision on the names of the cities

On 30 July 2001 Mr. Sejfudin Tokić, Deputy Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina at the time of its filing request, filed with the Constitutional Court of Bosnia and Herzegovina a request for a review of constitutionality of Articles 11 and 11(a) of the Law on Territorial Organization and Local Self-Government (Official Gazette of the Republika Srpska Nos. 11/94, 6/95, 26/95, 15/96, 17/96, 19/96, and 6/97) and the title itself of the Law on the Town of Srpsko Sarajevo as well as its Articles 1 and 2 (Official Gazette of the Republika Srpska Nos. 25/93, 8/96, 27/96 and 33/97). The Court made its decision in 2004, in which it declared the laws that changed the names of the cities to ones with prefixes "srpski" (Serbian), were unconstitutional and had to be changed (which was done later). In its decision, among other things, the Court stated:

The groups which are to be compared are in this case the Bosniac, Croat and Serb citizens of Bosnia and Herzegovina who should, according to a basic constitutional principle, be granted equal treatment throughout the territory of Bosnia and Herzegovina. However, the change of names by adding the adjective "srpski" before the names of certain towns or municipalities, by replacing a previous name with a new name indicating a Serb affiliation, or by eliminating in some cases the prefix "bosanski" demonstrates a clear intention and a wish to make it clear that the towns and municipalities concerned are to be regarded as exclusively Serb (...) The Constitutional Court therefore concludes that the contested legal provisions are not consistent with the constitutional principle of the equality of the constituent peoples in Bosnia and Herzegovina. Moreover, they constitute discrimination contrary to Article II(4) in conjunction with Article II(5) of the Constitution of Bosnia and Herzegovina. In view of the fact that the provision of Article II(5) is an integral part of certain rights under Article II(3) of the Constitution of Bosnia and Herzegovina, the Constitutional Court concludes that this Article was also violated in the present case.^[9]

The formal name of the item is U-44/01, but it is widely known as the "Decision on the names of the cities" (Bosnian: Odluka o nazivima gradova).

[edit] Decision on the conformity of certain provisions of the Constitution of B&H with the European Convention and its Protocols

On 27 April 2004, Mr. Sulejman Tihić, at the time Chair of the Presidency of Bosnia and Herzegovina, instituted proceedings before the Constitutional Court for a review of conformity of the provisions of Articles IV.1, IV.1(a), IV.3(b) and V.1) of the Constitution of Bosnia and Herzegovina with the provision of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (henceforth: European Convention) and Article 3 of Protocol No. 1 to the European Convention. Since the noted Articles of the Constitution establish a de iure discrimination, especially in relation to "Others" (i.e. those that are not members of "constituent peoples"), a question arose about a possible conflict between international and domestic law, moreover since the Constitution itself states (in its Article II.2), that the European Convention "shall have the priority over all other law". The applicant argued that this meant that the European Convention has a priority even over the Constitution and not only subconstitutional legal documents. The Court rejected the request as inadmissible, stating:

(...)in the present case an examination of conformity of certain provisions of the Constitution of BiH with the European Convention is requested, the Constitutional Court notes that the rights under the European Convention cannot have a superior status to the Constitution of BiH. The European Convention, as an international document, entered into force by virtue of the Constitution of BiH, and therefore the constitutional authority derives from the Constitution of BiH and not from the European Convention itself (...) The Constitutional Court must always hold on to the text of the Constitution of Bosnia and Herzegovina, which in the present case does not allow for wider interpretation of its jurisdiction, in view of the obligation of the Constitutional Court to “uphold this Constitution”.^[10]

With this decision the Court has upheld the discriminatory nature of the Constitution and laws that find their legal basis in it. As a result Jakob Finci, the president of Jewish community of Bosnia and Herzegovina, Dervo Sejdić, a Roma who has been legally abridged from becoming a member of the Presidency of Bosnia and Herzegovina or a member of House of Peoples of Bosnia and Herzegovina, and Ilijaz Pilav, a Bosniak from Srebrenica who has no possibility of becoming a Bosniak member of presidency of Bosnia and Herzegovina since he does not come from Federation of Bosnia and Herzegovina, have filed separate suits against Bosnia and Herzegovina in front of European Court of Human Rights (the cases are pending)^[11].

[edit] References

[edit] External links

• Constitutional Court of Bosnia and Herzegovina
• Constitution of Bosnia and Herzegovina