CDL-INF(1999)012e
Strasbourg, 25 June 1999
PRELIMINARY PROPOSAL
FOR THE RESTRUCTURING OF HUMAN RIGHTS PROTECTION MECHANISMS IN BOSNIA AND
HERZEGOVINA
adopted by the
Commission at its 39th Plenary meeting
(Venice, 18-19 June
1999)
on the basis of
contributions by:
Messrs Peter Jambrek
(Slovenia)
Giorgio Malinverni
(Switzerland)
Franz Matscher
(Austria)
On 7 July 1998, the Office of the High
Representative requested the Venice Commission to draw a report on a possible
re-structuring of the human rights protection mechanisms in Bosnia and Herzegovina
after the end of the five year transitional period provided for in the Dayton
Peace Agreements. The Commission set up a working group composed of Messrs
Helgesen, Jambrek, Malinverni and Matscher, who had already acted as
Rapporteurs for its “Opinion on the Constitutional situation in Bosnia and
Herzegovina with particular regard to human rights protection mechanisms” to
consider this topic and report to it. It further asked Messrs Malinverni and Matscher to act as
Rapporteurs. The Working Group met in Paris on 25-26 February and 11 June 1999
and considered the question on the basis of a working document prepared by the
Secretariat upon instruction by the Rapporteurs. Ms Michèle Picard, President
of the Human Rights Chamber of Bosnia and Herzegovina, Mr Ph. Bardiaux and Ms
C. Nix, experts from the Office of the French Médiateur de la République
and the State Department, USA, Mr J. Van Lamoen, Deputy High Representative for
Legal Affairs, I. Martin, Deputy High Representative for Human Rights, Ms L.
Hastings, Mr M. Köngeter and Mr E. Strauss of the OSCE Mission in Bosnia and
Herzegovina, Mr C. Harland and Mr A. Nicholas of the Office of the High
Representative, Mr N. Maziaux, Legal Counsel at the Constitutional Court of
Bosnia and Herzegovina participated in the meetings. Following the meeting the
Rapporteurs prepared a report which was submitted to the Venice Commission.
At
its 39th Plenary Meeting (Venice, 18-19 June 1999) the Commission
adopted this proposal, drawn up on the basis of the above-mentioned report.
* * *
Introduction
In
its Opinion on the constitutional
situation in Bosnia and Herzegovina with particular regard to human rights
protection mechanisms (adopted on 15-16 November 1996,CDL-INF(96)9 and CDL-INF
(98) 15 pp. 31), the Commission underlined that
protection of human rights is not only a constitutional requirement but also a
prerequisite and an instrument for long-standing peace in the country. Its
effectiveness depends on the coherence of the protection machinery and on the
credibility of the bodies which will monitor human rights implementation
throughout the country. Conflicts of competence between bodies entrusted with
protection of human rights should in principle be avoided, as well as situations
whereby two highest judicial bodies may give contradictory answers to the same
legal problem. Such situations, which are undesirable in general, could, in the
circumstances of this country, affect the very essence of the constitutional
order and thus the State as such.
The human rights protection mechanism foreseen in the
legal order of Bosnia and Herzegovina presents an unusual degree of complexity.
The co-existence of jurisdictional bodies entrusted with the specific task of
protecting human rights and of tribunals expected to deal with allegations of
violations of human rights in the context of the cases brought before them
inevitably creates a certain degree of duplication.
In order to cope with this unusual complexity, the
Commission suggested that interpretation of the constitutional instruments in
force should be very careful. The newly created institutions of Bosnia and
Herzegovina, when deciding which case falls within their competence, should
take into account not only laws and regulations but also the case-law of other
institutions. Co-ordination of their practice by disseminating information on
the cases which have been introduced, or are pending before, or which have been
decided by either institution is of utmost importance and should have been
ensured even in the first months of operation of the institutions concerned.
But interpretation has its limits. The Commission notes
several elements likely to affect the coherence of the actual structure of
human rights protection mechanisms:
The Constitutional regime in Bosnia and Herzegovina
makes no clear choice between a system of concentrated control of
constitutionality (by constitutional courts) and diffuse constitutional control
(by all courts). It creates an important and unusual network of legal avenues
for claiming violations of fundamental rights whose length and complexity may
rather affect the effectiveness of the protection afforded.
The position of the non-judicial institutions for
protection of human rights, namely the Ombudsman institutions at the level of
the State and in the Federation, is also unusual, since these institutions have
very large powers to perform quasi-judicial functions and to initiate or
intervene in pending proceedings. In the face of these powers the independence
of the judiciary can only be fully safeguarded through a very selective and
careful practice by the Ombuds-institutions.
The Commission
understands that the creation of specific human rights bodies is an important
step in the consolidation of peace in Bosnia and Herzegovina. Respect for human
rights is the cornerstone of the Dayton and Washington peace agreements.
However, duplication should be avoided since it may be detrimental to the
effectiveness of human rights protection. In particular, it may be advisable to
proceed with constitutional amendments where the creation of specific human
rights bodies may appear unnecessary or no longer necessary from a legal point
of view.
Similarly, important
disparities in the human rights protection systems of the two entities may also
be detrimental to the effectiveness of protection. Ensuring a balanced and
coherent judicial system for the protection of human rights in B.H. in its
entirety may require a certain parallelism in the protection afforded under the
legal orders of the two entities and possibly the establishment of equivalent
bodies.
Finally, the Commission indicated that the integration
of Bosnia and Herzegovina, the normalisation of its constitutional situation and
the effective development and functioning of its constitutional institutions
probably requires that, in the not too distant future, human rights protection
be entirely entrusted to the Constitutional Court of the State.
In view of
the above considerations and for other reasons indicated in the report, the
Commission considers that action will be required also in the normative field.
The present report aims at
outlining a tentative proposal for re-structuring the human rights protection
mechanisms in Bosnia and Herzegovina and the entities in accordance with the
above considerations and findings of the Venice Commission. The Commission has
taken into account the experience from the functioning of the institutions
since their creation. It is also aware that some of the proposals may require
new legislation, amendments to the Constitutions of Bosnia and Herzegovina and
its entities, or memoranda of understanding, where appropriate. Pursuant to the
Dayton Peace Agreement, by the end of 2000, responsibility for the continuing
operation of several human rights institutions will be transferred to the
Government of Bosnia and Herzegovina. This might be the appropriate time for
the re-structuring operation. In this context one should also bear in mind that
Bosnia and Herzegovina has applied for accession to the Council of Europe and
may, following accession, become a Party to the European Convention on Human
Rights.
1. Institutions of the State of Bosnia and Herzegovina
Merger of the Human Rights Chamber and the
Constitutional Court
The Commission has found that the Human Rights Chamber, because of its
origin and tasks pursuant to the Dayton Peace Agreement, is a provisional, sui generis institution which should
cease to exist after the accession of Bosnia and Herzegovina to the Council of
Europe and ratification of the European Convention of Human Rights.
In its above-mentioned opinion on the Constitutional situation in
Bosnia and Herzegovina with particular regard to human rights protection
instruments, the Venice Commission found that the fields of respective
competencies of the Constitutional Court and the Human Rights Chamber were
partially overlapping. The Venice Commission noted:
« Among
other competencies, the Constitutional Court is to have jurisdiction over
issues referred by any court in the country, on whether a law on whose
validity its decision depends is compatible with the Constitution, with the
European Convention for Human Rights and Fundamental Freedoms and its Protocols
or with rules of public international law pertinent to a court's decision
(Article VI para 3 (c)). It shall also have appellate jurisdiction over
constitutionality issues arising out of a judgement of any other court in
Bosnia and Herzegovina (Article VI para 3 (b). It follows from the latter
provision that the Constitutional Court may receive appeals against decisions
from any court whereby it is alleged that they violate the Constitution,
including the provisions on Human Rights (cf. Article II). In accordance with
Article VI para 4 of the Constitution of BH, the decisions of the
Constitutional Court "are final and binding". Similarly, the
Commission of Human Rights - and in particular the Human Rights Chamber -has
jurisdiction to receive applications concerning violations of human rights.
The decisions of the Chamber are also "final and binding". Whatever
the intention of the drafters of the Constitution may have been, there is an
overlapping between the competencies of the Constitutional Court and those of
the Commission of Human Rights. Both shall deal with human rights issues,
mainly under the European Convention on Human Rights. »
This partial overlapping proved
to be one of the most difficult problems in the judicial system of Bosnia and Herzegovina
and will be one of the most important reasons of dysfunction if the situation
remains unchanged. Indeed, the distribution of competencies between the two
highest jurisdictions is very unclear and it seems almost impossible to
establish any hierarchy between two highest courts both giving final and
binding judgements. In a further opinion issued on the occasion of an appeal
from the Chamber to the Constitutional Court (Opinion on the admissibility of appeals against decisions of the Human
Rights Chamber, 16-17 October 1998,CDL-INF(98)18), the Commission
declared the following:
“Article
II of the Constitution of Bosnia and Herzegovina provides that « the rights and freedoms as set forth
in the European Convention on Human Rights and Fundamental Freedoms and its
Protocols shall apply directly in Bosnia and Herzegovina. These shall have
priority over all other law ». This provision would lose most of its
meaning if the list of rights alone, and not the monitoring mechanism, were to
apply in BH. However, the ECHR monitoring machinery is only open to States
which are parties to this convention and BH is not one of them, since only
member States of the Council of Europe can become parties to the ECHR. It is
therefore necessary, pending the accession of BH to the Council of Europe and
the ratification of the ECHR by it, to provide for a provisional monitoring
mechanism reproducing in BH the Strasbourg bodies (the European Commission and
Court of Human Rights).
The
idea of a transitional international human rights protection mechanism was
already expressed in Resolution (93) 6 of the Committee of Ministers of the
Council of Europe, and Annex 6 to the Dayton Agreements, establishing the Human
Rights Chamber, expressly refers to this Resolution.
The
international elements in the composition of the Human Rights Commission (the
Ombudsperson and the majority of the Human Rights Chamber are not nationals of
Bosnia and Herzegovina) underline this specific role of the bodies established
under Annex 6. The Human Rights Commission appears as a quasi-international sui generis body integrated into the
legal order of Bosnia and Herzegovina for a transitional period, until the
effective integration of this State has been achieved and it has acceded to the
Council of Europe, ratified the European Convention on Human Rights and
recognised the human rights protection mechanism of the Strasbourg organs. The
transitional (provisional) character of the mechanism is also indicated in
Annex 6 , which is scheduled to last for five years after the entry into
force of the Dayton Agreement. After that period of time, the responsibility
for the continued operation of the Commission of Human Rights is to be
transferred to the institutions of Bosnia and Herzegovina, unless otherwise agreed.
This provision has to be read in conjunction with Article 5 of Resolution (93)
6 which provides that the arrangements for a
transitional human rights control mechanism integrated in the internal legal
order of European States which are not yet members of the Council of Europe,
shall cease once the requesting state has become a member of the Council of
Europe, except as otherwise agreed.
The
provisions on jurisdiction of the Human Rights Commission further underline
this quasi-international (sui generis)
character of the mechanism established under Annex 6. Article 2 of Annex 6
states that the Commission on Human Rights is established to assist the parties
(namely the Republic of Bosnia and Herzegovina, the Federation of Bosnia and
Herzegovina and the Republika Srpska) in honouring their obligations to secure
to all persons within their jurisdiction the highest level of internationally
recognised human rights standards. Therefore, the State of Bosnia and
Herzegovina is also a party to proceedings before the Human Rights Commission
in its capacity as a party to an international agreement.”
For all the above reasons it seems both logical and desirable to opt
for the transferring of competence on all final appeals in human rights
cases to a single jurisdictional body at the state level, as is the case in
most modern continental constitutional systems in Europe. However, the many
procedural, administrative, financial, political and other differences between
the Chamber and the Constitutional Court should be carefully reviewed to assess
how such a “transfer” should be structured without resulting in a diminution in
the judicial protection of human rights in Bosnia and Herzegovina.
It is well known that the Chamber is a relatively well-funded
institution that benefits from the expertise on its bench of a majority of
international judges, experts in human rights law. It has issued written
opinions covering over 100 cases on a broad range of topics falling within the
ambit of the ECHR. Over 2000 cases have been filed to date with the Chamber. In
contrast, the Constitutional Court, which suffers from a tremendous lack of
funding, has for a variety of reasons only rendered a final decision in a
single case out of the less than ten that have been filed with the Court, and
its appellate jurisdiction has yet to be tested. Furthermore, in addition to
these institutional differences, the rules of procedure, including
admissibility criteria for appellate cases and in particular the right of
individuals to file a case, differ between the two bodies or are as yet
untested in the Constitutional Court.
In the light of these and other differences, in practice, such a
“transfer” will require a general restructuring of the Constitutional Court and
it is highly advisable that this transfer takes the form of a merger of the
Constitutional Court with the Human Rights Chamber. Indeed, entrusting the
Constitutional Court with the task of dealing with individual human rights
applications requires a simultaneous transfer of expertise, experience,
resources, procedural and other capacities, which can best be achieving by the
proposed merger. One way of realising the transfer may be to establish a
separate human rights section within the Constitutional Court. This merger will
also ensure continuity in the Chamber’s case-law and contribute to achieving
the legal security and stability which the legal order of Bosnia and
Herzegovina so much needs.
Naturally, this proposal is based
on the premise that the many differences between these two bodies will be
carefully addressed and reconciled, as appropriate, in order to ensure that the
domestic protection of human rights afforded by the Human Rights Chamber is
preserved and that the international obligations entered into by the parties
under the peace agreements are taken into account. To that end, procedural
issues such as the prerequisites for individual applications to the
Constitutional Court, including exhaustion of other effective remedies,
applications by the Ombudsman (see below), effects of judgements, power to
grant compensation and other such matters must be regulated by a law (possibly
constitutional law) to be adopted by the BH Parliament. The law should also
contain transitional provisions concerning the transitional role of the
international members of the Court and international administration, and
indicating that once the merger has occurred, the Human Rights Chamber shall no
longer be competent to deal with new cases or with cases pending at the Chamber
on which the Chamber has not yet initiated proceedings.
The law shall further indicate
the time at which the merger shall become effective. In this respect the
transfer provision of Article XIV of Annex 6, as well as the possible/future
accession of Bosnia and Herzegovina to the Council of Europe and ratification
of the ECHR should be taken into consideration.
The Commission is ready to consider
further the legal and practical modalities of this proposal, if the Office of
the High Representative so requests. In particular, in the light of the
above-mentioned complexities, as well as the need to ensure the preservation of
human rights protection through the proposed merger of the Human Rights Chamber
and the Constitutional Court, the Venice Commission believes that the
modalities of such a merger must be carefully considered. The Rapporteurs
suggest that a working group composed of international legal and administrative
experts operating under the auspices of or reporting to the Venice Commission
and/or the OHR should investigate the procedural, administrative, financial and
other practical issues involved and make recommendations. The Venice Commission
will consider these recommendations and detail further the steps necessary to
achieve the suggested merger.
1.1.
Creation of special courts at the level of the State of Bosnia
and Herzegovina
Electoral jurisdiction
In its Opinion on the competence of BH in electoral matters (CDL (98) 16),
the Commission held that, with regard to disputes concerning elections to BH
institutions, it was necessary to assign appellate jurisdiction to a
court at state level. Indeed, the
democratic nature of BH (which is enshrined in the preamble to its Constitution)
and, above all, the requirement that BH (and the entities) organise "free
and fair elections" (Article I, paragraph 1 of Annex 3 to the Dayton
Agreements) make it mandatory that any electoral dispute be dealt with by an
independent judicial institution. BH is therefore bound both by the Peace
Agreements and by its own Constitution to refer such disputes to a judicial
institution.
In its Opinion on the need for a judicial institution at the level of the
State of Bosnia and Herzegovina (issued on 16-17 October 1998,CDL(98)17
), the Commission stated that
“the choice of institution is left to the state legislature,
which might envisage giving jurisdiction in such matters to a special division
of the Constitutional Court or might establish a separate court Whatever solution is adopted by the
legislature, it will necessarily entail an addendum to the BH
Constitution, which makes no provision either for the constitutional court to
have jurisdiction in electoral matters or for the establishment of a separate
court. This does not mean that the
Constitution will not be observed, since, as we have seen, the existence of
such an institution is a requirement of the Constitution itself.”
The Commission has taken into account the wide
competencies this court will have (it will have to deal with all kinds of
electoral disputes at State, entity and cantonal level), the specific nature of
the issues involved and the urgency of most of the decisions in the matter. It
further finds that electoral litigation would be a heavy burden for the
Constitutional Court of BH, whose case-list of case will inevitably and
dramatically increase after its merger with the Human Rights Chamber. The
Commission is therefore of the opinion that competence in the field of
electoral disputes all over the country should be entrusted to a special permanent
electoral jurisdiction. Of course, the Constitutional Court will have
appellate jurisdiction over constitutional issues arising out of the decisions
of this electoral jurisdiction.
Administrative court
In its above-mentioned opinion on the need for a judicial institution
at the level of the State of BH (CDL (98) 17), the Commission found that under
the Constitution of BH, the State of BH is empowered to establish state-level
courts, which should be specific, in the sense that they should have special
and not general jurisdiction, and be created in response to an established
constitutional need. Moreover, as regards administrative disputes, BH is
empowered, and even obliged, to set up a state-level court (the Administrative
Court of BH) for the following reasons:
The general principle that administrative authorities must
abide by the law as well as the principle of the rule of law, on which the BH
Constitution is founded (Article I, paragraph 2), require that administrative
decisions be subject to judicial review.
This general requirement takes an even more definite form in
cases where administrative decisions affect individual rights. In such cases
the requirement that administrative decisions be subject to judicial review
comes within the ambit of respect for fundamental rights.
Article II of the BH Constitution provides that "the
highest level of internationally recognised human rights and fundamental
freedoms" shall be ensured in BH and that a Human Rights Commission shall
be set up to that end, in accordance with Annex 6 to the peace agreements. The
first article of Annex 6 itself makes reference to the European Convention on
Human Rights, Article 6, paragraph 1 of which provides, inter alia, "In
the determination of his civil rights and obligations and of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by
law". (Also see Article II, paragraph 3 (e) of the BH Constitution).
According to the established case-law of the European Court and the European
Commission of Human Rights, the notions of "civil rights and
obligations" and "criminal charges" are autonomous ones,
specific to the ECHR, which are not to be interpreted by reference to the
domestic law of the states bound by this convention. The European Court of
Human Rights has consistently held that it is sufficient that the outcome of a
dispute should be decisive for civil rights, that is to say that the rights in
issue should be personal and economic rights of one of the parties to the
proceedings. Disputes in fields traditionally governed by administrative law of
member states have thus been regarded, in the context of the convention, as
disputes over civil rights. Examples are disputes over the refusal of certain
tax advantages (Editions Périscope v. France judgement of 26 March 1992, Series
A No. 234-B); over entitlement to social security benefits (Deumeland v.
Federal Republic of Germany judgement of 29 May 1986, Series A No. 100); over
entitlement to a civil service pension (Lombardo v. Italy judgements of 26
November 1992, Series A Nos. 249-B and 249-C); and over the right to
compensation for unlawful administrative acts (Tomasi v. France judgement of 27
August 1992, Series A No. 241-A). Similarly, certain administrative proceedings
have been considered to involve a "criminal charge". Examples are
cases concerning penalties imposed in economic matters (Deweer v. Belgium
judgement of 27 February 1980, Series A No. 35); in tax matters (Commission
report in the Sydow v. Sweden case); and for road traffic offences (Özturk v.
Federal Republic of Germany judgement of 21 February 1984).
There
is absolutely no doubt that decisions taken by the BH administrative
authorities pursuant to the powers vested in them by the Constitution (for
instance, in matters of foreign policy, customs policy, immigration policy,
regulation of transportation and air traffic control) may have a decisive
effect on the exercise of individuals' civil rights or obligations or may be
regarded as penalties imposed following a criminal charge, within the meaning
of Article 6, paragraph 1 of the ECHR. That article, which is binding on BH by
virtue of its Constitution and the peace agreements, requires that such
administrative decisions be subject to judicial review.
The
state of BH is therefore bound by its Constitution to afford its subjects
access to a tribunal which will determine any dispute arising from an act or
omission of the administrative authorities, in so far as that act or omission
can be regarded as a criminal penalty or immediately affects an individual's
personal or economic rights. Since the courts of the entities have no
jurisdiction to rule on the lawfulness of decisions taken by the BH
administrative authorities, or to set aside such decisions, the state of BH
is obliged to set up a judicial institution at state level, which is competent
to deal with all aspects of a case (that is to say has jurisdiction to hear
the case on the merits and is empowered to overturn an administrative act).
The Commission further notes that such a court could have broader
jurisdiction than that imposed by the requirements of Article 6 ECHR: other
administrative disputes could also be brought before this body.
Special (high)
criminal court
In the same opinion, the
Commission held that although offences perpetrated by BH public officials can
be tried by the entities' criminal courts according to the rules of
jurisdiction laid down by BH law, several offences provided for in criminal
legislation (e.g. high treason) committed by persons appointed to government or
political office (members of the presidency, ministers, members of the Constitutional
Court, etc.) in the exercise of their functions cannot be tried by entity
courts. As in many other European
states, special rules of substance and procedure must be issued concerning such
offences.
The Commission considered
whether competence in this field could be given to the constitutional court. It
tends to exclude this possibility since the Constitutional court’s competencies
are already quite extensive. The Commission would suggest that competence in
this field could be given to another new state level court (the high
criminal court of BH). This position is also supported by the conclusions of
the Madrid Peace Implementation Council.
The exact scope of the ratione personae and ratione materiae competence and the
composition of this court should be determined in a law to be adopted by the
State legislator. In this respect, the requirements of Article 2 of Protocol No
7 to the ECHR should be taken into consideration. This provision reads:
“Everyone convicted of a
criminal offence by a tribunal shall have the right to have his conviction or
sentence reviewed by a higher tribunal (…). This right may be subject to
exceptions … in cases in which the person concerned was tried in the first
instance by the highest tribunal”
To sum up, the Commission is
currently considering, together with experts appointed by the Directorate of
Legal Affairs of the Council of Europe, the legal and practical modalities of
the proposals in section 1.2 of the present report with a view to creating
either specific courts or a single court with several chambers at the level of
BH, at the request of the Office of the High Representative.
1.3. A new concept for the Human Rights
Ombudsman (Ombudsperson) of Bosnia an Herzegovina
It is envisaged to re-define the operation
of the Ombudsperson of BH as regards in particular its functions as a classical
Ombuds-institution; its relations with the highest judicial authorities of the
State (i.e. the Constitutional Court); and the definition of its field of
activities.
The Commission stated in its Interim Report on the distribution of
competencies and structural and operational relations in the Ombudsman
institutions in BH (adopted on 12-13 June 1998) that the Ombudsperson of Bosnia and Herzegovina is a
hybrid institution. Set up very shortly after the peace agreement, the Office
of the Ombudsperson was for a long time the only institution responsible for
introducing the European Human Rights Convention into the legal system in
Bosnia and Herzegovina. This task has been carried out successfully, with the
result that the institution has acquired a quasi-judicial status. The
Ombudsperson thus ruled on the admissibility of the complaints it received,
sought a friendly solution, investigated and communicated its findings to the
party allegedly at fault and, if it were not satisfied with that party’s
response, referred the matter to the Human Rights Chamber. At the same time, at
the hub of the human rights machinery provided for in Annex 6, the Ombudsperson
has a non-judicial activity when it decides, ex officio, to conduct investigations and draw up special reports.
However, a structural reorganisation of its modus operandi must be undertaken. The
quasi-judicial sorting role performed by the Office of the Ombudsperson should
in fact be taken over by the judicial body responsible for protecting human
rights. The Ombudsperson could then concentrate more on its more conventional
mediation functions, without so many procedural constraints (application
deadlines, exhaustion of other remedies), that are uncharacteristic of the
ombudsman’s work.
This should not prevent
the Ombudsperson from referring cases to the highest judicial authority
competent to deal in human rights matters, i.e. the Constitutional Court of
Bosnia and Herzegovina, if the proposal under 1.1 is accepted.
The competence of the Ombudsperson should also be
confined to matters concerning the State of Bosnia and Herzegovina, cases which
simultaneously concern the two entities (“inter-entity” cases) and entity cases
whose outcome is of importance for the whole of Bosnia and Herzegovina. Clearly
as the state institutions are gradually set in motion and begin effectively to
exercise their powers under the Constitution of Bosnia and Herzegovina, the
citizens will be increasingly concerned by the decisions of those institutions.
Similarly, the co-operation required in numerous areas under the Dayton
Agreement -between the entities themselves or between the entities and the
state - seems to point to a likely increase in the number of cases involving
both entities. It is in this field that the Ombudsperson will have to develop
its activities, while in the medium term questions concerning issues of concern
to only one entity should generally fall within the ambit of the Ombudsmen of
the entities.
It goes of course
without saying that as long as the RS Ombudsman is not created, the
Ombudsperson shall be competent to deal with all cases concerning RS.
The reform outlined above requires the amendment of the fundamental
texts of the institutional apparatus in Annex 6. As responsibility for the
continuing operation of the Office of the Ombudsperson will lie, after December
2000, with the institutions of Bosnia and Herzegovina, it seems that the most
appropriate means of carrying out the reform would be an organic Law to be
adopted by the Parliamentary Assembly of Bosnia and Herzegovina. The Working
Group on the Ombudsman institutions in BH, set up by the Venice Commission and
the Human Rights Directorate of the Council of Europe drafted such an organic
law, at the request of the Ombudsperson.
Moreover, the Ombudsperson’s power to refer cases to the Constitutional
Court should be reflected in the Constitution of BH. This will be part of the
reform concerning the competencies of the Constitutional Court of BH.
1.4. The
relations between the Constitutional Court and Annex 7 Commission
The Commission has noted in its above-mentioned Opinion on the constitutional situation in Bosnia and Herzegovina with
particular regard to human rights protection mechanisms, that a certain
conflict of competencies could arise in the relations of the Human Rights
Chamber and the Annex 7 Commission, when they are both dealing with property
protection cases. After the proposed merger of the Chamber and the
Constitutional Court, the same conflict will appear in regard to the
Constitutional Court. It is to be noted in this respect that both bodies are
expected to give “final and binding” decisions.
In the Commission’s view, Annex 7 Commission is a specific sui generis body, provided for by the
Peace Agreements. The rationale for its existence lies in the struggle to
achieve a certain security as to the property regime in BH, within a short time
period, and thus allow economic development and consolidate peace. Its
operation appears as an exception to the legal order of BH, which, through
Article 6 of the ECHR, requires that disputes over civil rights and obligations
be decided by tribunals established by law, after fair and public hearings. It
should be regarded as a provisional institution. If its functioning is to
continue after 2000 this shall be effected by virtue of an agreement of the
parties to the Annex 7 to the Peace Agreement (as provided in Annex 7, Article
XVI). It will not be possible to integrate this Commission in the legal order
of BH without subjecting its decisions to judicial or, at least, constitutional
control.
The Venice Commission would be ready to pursue the consideration of
issues related to the functioning of Annex 7 after the end of the transitional
period, in co-operation with the Annex 7 Commission, if the Office of the High
Representative so requests.
2. Institutions
of the Federation of Bosnia and Herzegovina
2.1. The Human Rights Court of the Federation
The
Commission has on several occasions stated that the setting up of the Human
Rights Court of the federation was unnecessary and should therefore be avoided.
The reasons for this position of the Commission were explained in the
Commission’s Opinion on the establishment
of a human rights Court in FBH (issued on 20-21 June 1997,CDL-INF(98)15,
p. 77 ff):
The co-existence of two human rights jurisdictional
bodies (the Human Rights Court of F.B.H. and the Human Rights Commission
provided for in the Dayton Agreements) may create certain problems.
First, the exhaustion of domestic remedies available to
a citizen of F.B.H. becomes extremely lengthy. It involves the (eventual)
excessive intervention of a municipal court, a cantonal court, the Supreme
Court, the Human Rights Court (with a possible intervention of the
Constitutional Court of F.B.H.) and then of the Ombudsman of B.H. before
reaching, finally, the Constitutional Court of B.H. or the Human Rights chamber
(first a Panel and then the Plenum). This long process of exhaustion of
domestic remedies may also discourage citizens from F.B.H. from applying to the
European Commission in Strasbourg when B.H. becomes party to the European
Convention on Human Rights."
In addition, it cannot be excluded that possible discrepancies in the
case-law of the Human Rights Court of F.B.H. and of the Human Rights chamber of
B.H. (both composed of a majority of international judges) might affect the
authority of those courts.
Obviously these problems, linked to the establishment and the
functioning of the Human Rights Court of F.B.H., jeopardise the efficiency of
the human rights control mechanism both in that entity and in B.H. as a whole.
As a possible solution to these problems, the Venice
Commission has recommended amending the FBH Constitution so as to do away with
the Human Rights Court of the Federation.
The
Commission has now examined whether there are reasons for setting up of the
Human Rights Court of the Federation having regard to the judicial system of
the Federation and to the envisaged changes in the institutional set-up at the
level of the State.
It
recalls in this respect:
-
that the
Supreme Court of FBH, as all other courts in the FBH, directly apply the human rights
provisions of the Constitution of FBH and of BH, the ECHR and the other
international human rights instruments listed in the annexes to the Washington
and Dayton Agreements;
-
the Constitutional Court of BH has appellate jurisdiction over
decisions of any court in BH on constitutional issues, including human
rights ; if the reform envisaged under point 1.1 above is accepted, this
competence will be further developed ;
-
the Supreme
Court of FBH (or a cantonal court) have an
obligation to submit any doubt as to whether an applicable law is compatible
with the FBH Constitution to the FBH Constitutional Court.
Under these circumstances it does not seem that the
setting up of the Human Rights Court of the Federation corresponds to any
pressing need. On the contrary, establishing the Human Rights Court would
unnecessarily complicate the judicial system of both the Federation and the
State. Further, it is suggested that the provisions on the Human Rights Court
of the Federation in the Constitution of this entity have become inoperative or
obsolete by the provisions on the Human Rights Commission of the Dayton Peace
Agreement.
The Commission is ready to further elaborate this
proposal, considering also the possibility of creating a human rights section
within the Supreme Court of FBH, which would not, however, take over the
jurisdiction of the unformed Human Rights Court. The creation of such a section
may be justified in view of the Supreme Court’s competence to deal in concreto with human rights issues. It
may be also justified by the Supreme
Court’s power to refer to the Constitutional Court of BH questions as to
whether a law is compatible with the human rights provisions of the BH
Constitution or the ECHR (see below).
2.2. The Constitutional Court of the Federation
The primary functions of the Constitutional Court are to
resolve disputes between Cantons; between any Canton and the Federation
Government; between any Municipality and its Canton or the Federation
Government; and between or within any of the institutions of the Federation
Government. The Court also determines, on request, whether a law or a
regulation is in accordance with the Constitution of the Federation. The
Supreme Court and cantonal courts have an obligation to submit doubts as
to whether an applicable law is constitutional to the Constitutional
Court.
If the Human Rights Court of the Federation is not set
up, as suggested in paragraph 2.1. above, the question might be raised whether
the competence of the Constitutional Court of FBH should comprise human rights
issues. Having regard to the need to have a coherent human rights policy and
practice all over Bosnia and Herzegovina, it is preferable that human rights
issues be directly referred to the Constitutional Court of BH. This appears as
an interesting shortcut accelerating the procedure. Of course, this would mean
that mandatory referral to the Constitutional Court of FBH would not comprise
human rights issues, and may
require amending the Constitution of FBH to remove the current mandatory
referral of constitutional questions to the Constitutional Court of FBH.
2.3. The Federation Ombudsman
The Office of the
Federation Ombudsman is an independent agency. The Ombudsman have the power to
examine the activities of any institution of the Federation, a canton, or a
municipality as well as of any institution or person by whom human dignity,
rights, or liberties may be negated, including by accomplishing ethnic
cleansing or preserving its effects. In so doing, the Ombudsman must have
access to all official documents, including confidential ones. Pursuant to the
FBH Constitution the Ombudsman is entitled to initiate proceedings in competent
courts and to intervene in pending proceedings. The Commission has considered
these powers of the Ombudsman with some scepticism. In its opinion on certain
constitutional aspects of the situation in Bosnia and Herzegovina (opinion on
the Washington Agreements), issued in September 1994, it stated :
« Intervention by
the ombudsman in the course of a trial should be exceptional, or at least
subject to extreme caution. His role should in fact be to intervene before the
institution of judicial proceedings. Intervention during a trial should have no
other purpose than to bring about a friendly settlement. Any other kind of
intervention would be contrary to the principle of the separation of powers,
the independence of the judiciary and equality of arms. »
The
draft organic law for the Federation Ombudsman, prepared by the Working Group on
the Ombudsman institutions in Bosnia and Herzegovina, deals with this problem.
Without limiting the constitutional powers of the FBH Ombudsman, the draft law
provides that the Ombudsman intervene before courts only when they consider
this to be strictly necessary for the effective performance of their duties
under the Constitution.
3. Institutions of the Republika Srpska
3.1. The judiciary : Constitutional Court,
Supreme Court and other courts of law
The Constitutional Court of the RS has competence to
decide on conformity of laws, other regulations and general enactments with the
Constitution; conformity of regulations and general enactments with the law;
conflict of jurisdiction between agencies of legislative, executive and
judicial authorities; conflict of jurisdiction between agencies of the
Republic, region, city and municipality; conformity of programmes, statutes and
other general enactments of political organisations with the Constitution and
the law. In accordance with amendment XLII (Article 115 in fine), the Constitutional Court monitors constitutionality and
legality by providing the constitutional bodies with opinions and proposals for
enacting laws to ensure "protection of freedoms and rights of
citizens".
Proceedings before the Constitutional Court can be
instituted by the President of the Republic, by the National Assembly and by
the government. The Constitution enables the legislator to authorise other
bodies or organs of the State to bring a case before the Court. The
Constitutional Court may itself initiate proceedings on constitutionality and
legality.
There is no individual application before the
Constitutional Court but anyone "can give an initiative" for
constitutional proceedings. Apparently, in practice, many cases brought before
the Constitutional court have their origin in individual initiatives.
The Constitution of the Republika Srpska contains no
provision as to the place of international human rights instruments in the
hierarchy of norms. However, the international human rights instruments listed
in the Dayton Agreement, including the ECHR, should apply directly in the
Republika Srpska (Article II paras 1 and 6 of the Constitution of B.H.: Bosnia and Herzegovina and both Entities,
all courts, agencies, governmental organs and instrumentalities operated by or
within the Entities shall apply and conform to the human rights referred to in
the Constitution).
The system provided for in the law of RS is a classical
system where judicial protection of human rights is afforded by ordinary
courts. The Supreme Court of RS is the main instrument for human rights
protection since all types of litigation (civil, criminal and administrative)
will be brought before it, whereby the Court shall "protect human rights
and freedoms" in accordance with Article 121 of the Constitution. The
Constitutional Court will examine the compatibility of a law or a regulation
with the human rights guaranteed in the Constitution in abstracto, at the request of other State organs or at its own
initiative.
In its Opinion on
the constitutional situation in BH with particular regard to human rights protection
mechanisms, the
Commission has expressed the view that
« having regard to the importance of
human rights protection in Bosnia and Herzegovina, one could expect a system of
individual applications to be established (in the Republika Srpska), giving the
individual locus standi before the
Constitutional Court in addition to or in substitution for the system of
"individual initiatives". At the same time, some remnants of the
constitutional order of the former Yugoslavia, such as the capacity to initiate
proceedings ex officio and the competence to make "proposals", could
be abandoned. This would strengthen the judicial character of the Court and
bring the system closer to the recent evolution in several new democracies in
Europe. »
Taking
into account the envisaged merger of the Human Rights Chamber with the
Constitutional Court of BH and the need to preserve a parallelism in the two
entities, the Commission considers that the institution of individual
application to the Constitutional Court of the RS is not necessary.
Furthermore, the Constitutional Court’s capacity to initiate proceedings ex officio does not affect the human
rights protection system and is not therefore discussed in the present report.
However,
the possibility of a referral to the Constitutional Court of BH of questions as
to the compatibility of laws and regulations with human rights provisions
should be envisaged (see below).
3.2. Creation of an Ombudsman institution in
the RS
In the above-mentioned
opinion, the Commission stated :
“The creation of an institution of Ombudsmen should be envisaged. The
establishment of such an institution, analogous to the Ombudsmen operating in
the F.B.H., will not only improve the human rights protection machinery in the
RS but also contribute towards the establishment of a balanced and coherent
system of judicial protection of human rights in B.H. in its entirety. The RS
Ombudsmen will be able to submit cases of human rights violations to the Human
Rights Chamber, through the Office of the Ombudsman of B.H. In order to ensure
the necessary impartiality of the institution in a post conflict situation, one
should consider that the RS Ombudsmen should be three in number, belonging to
the three ethnic groups, and that the international community be involved in
their nomination and operation.”
The Working Group on the Ombuds-institutions in Bosnia and
Herzegovina has prepared a preliminary draft law on the Ombudsman of the RS in
accordance with the above suggestion and has forwarded it to the competent RS
authorities. The RS Ombudsman, as envisaged in the draft law, has similar
compositions, powers and functions with the FBH Ombudsman. However, the RS
Ombudsman does not have the power to intervene before ordinary courts in the
Republika Srpska.
The recent Madrid Peace Implementation Conference
supported the draft law.
4. Relations between the institutions
of the entities and the institutions of the State
4.1. Referral
of cases to the highest judicial authority of the State competent to deal with
human rights cases by the entities’ Ombudsmen
The working group on the Ombuds-institutions in BH suggested in its
interim report and in the draft laws prepared for the entities’ Ombudsman that
the latter should be given the possibility to bring cases to the highest
judicial authority of the State competent to deal with human rights cases (i.e., in accordance with the
suggestion in point 1.1 of this report, the Constitutional Court).
The working Group suggests in its report to allow the
Ombudsmen of the entities access to the Constitutional Court through the
Ombudsman of Bosnia and Herzegovina. The latter shall make sure that the
position of the entities’ Ombudsman is adequately presented to the
Constitutional Court
4.2. Scope of the jurisdiction of the
Constitutional Court
The Constitutional system of Bosnia and Herzegovina allows for two
different legal orders (those of the two entities) to co-exist. The only common
area of these two different entities’ legal orders and of the legal order of
the State of Bosnia and Herzegovina is human rights. It is to be expected that
human rights will be the topic, that will allow for the State judiciary, i.e.
the Constitutional Court, to exercise a control over the judiciary of the
entities and to ensure a minimum of common interpretation.
Appeals against decisions of Supreme and ordinary courts
The
Constitution (Article VI, para 3 b) already allows for appeals from any other
court in Bosnia and Herzegovina over issues arising under the Constitution.
Most human rights cases will be brought before the Constitutional Court under
this provision (which should be construed in such a way as to comprise all
human rights cases previously dealt with by the Human Rights Chamber).
Exhaustion of effective remedies in the entities’ legal order should be set out
as a procedural requirement for appeals to the Constitutional Court.
Appeals against decisions of the entities’
constitutional Courts
The Commission has
indicated in its above-mentioned opinion :
“The simultaneous existence of three Constitutional
courts should not raise particular problems, since each one of them functions
within the framework of a specific Constitution. Thus, the Constitutional Court
of F.B.H. is competent for the examination of constitutional issues under the
Constitution of F.B.H., while the Constitutional Court of RS shall deal with
constitutional questions under the Constitution of RS. The Constitutional Court
of B.H. is competent inter alia to decide the question of compatibility of an
Entity's Constitution with the Constitution of B.H. (Article VI, para 3 a),
which takes precedence over the Constitutions of the Entities. The provisions
in the Constitutions of the Entities providing that judgements of their highest
courts are "binding and final" should be either revised or
interpreted in such a way as to mean "binding and final in the legal order
of the Entity, as long as it is not declared inconsistent with the Constitution
of B.H.”
It is clear that issues
under the Constitutions of the entities will not fall within the jurisdiction
of the BH Constitutional Court.
In contrast, whenever the entities constitutional
courts’ decisions directly or indirectly concern the constitutional order as
set out in the BH Constitution, including its human rights provisions and
guarantees, it must be accepted that appeals to this Court are allowed, under
Article VI para 3 b or, of course, under Article VI para 3 a.
Referral from other courts in
Bosnia and Herzegovina
Article
VI para 3 c. allows referral to the Constitutional Courts of issues concerning
the compatibility of any laws with the Constitution of BH, the ECHR and the
laws of BH.
The
Commission is of the opinion that the referral mechanism provided for in the BH
Constitution is an important element for the cohesion of the constitutional order
of this State. However, referral should be regulated in order to avoid
procedural abuses likely to complicate rather than facilitate the smooth
progress of proceedings. Since individuals, parties to court proceedings, or
the Ombudsman have the power to introduce cases before the Constitutional
Court, after exhaustion of other remedies, referral at an earlier stage should
not occur whenever parties so request but only when a court finds it necessary.
It
is suggested that courts in Bosnia and Herzegovina, including Constitutional
Courts of the entities, refer constitutionality questions to the Constitutional
Court of BH, whenever they find that a law (on whose validity their decision
depends) is incompatible with the BH Constitution and the ECHR.
It
is highly advisable that the Constitutional Court be empowered to refuse
referral whenever it finds that the issue referred has been already dealt with
or is manifestly unfounded. The Court should also be empowered to refer cases
or questions to other courts if these would be better forums for resolving the
issues raised.
The
Commission is ready to further elaborate this proposal in the context of the
general re-organisation of constitutional control in Bosnia and Herzegovina, if
the Office of the High Representative so requests.
