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[13/12/1999] CDL-INF(1999)016 Avis sur la réforme du système de protection judiciaire des droits de l’homme en fédération de Bosnie - Herzégovine

1. In its Opinion on the constitutional situation in Bosnia and Herzegovina with particular regard to human rights protection mechanisms (CDL-INF (96) 9 and CDL (98) 15 pp. 30 ff.), the Commission underlined that the protection of human rights in Bosnia and Herzegovina is not only a constitutional requirement but also a prerequisite and an instrument for longstanding peace in the country. The effectiveness of the human rights protection provided depends both on the coherence of the protection machinery and on the credibility of the bodies entrusted with the task of human rights protection. To this end, it is important to avoid conflicts of competence between such bodies as well as situations where two highest judicial bodies would give conflicting answers to the same legal problem. Such situations, which are undesirable in general, could, in the particular circumstances of this country, affect the very essence of the constitutional order and thus the state as such.
2. As the Commission indicated in its Preliminary Proposal for the Restructuring of Human Rights Protection Mechanisms in Bosnia and Herzegovina (CDL-INF (99) 12), the machinery provided for in the legal order of Bosnia and Herzegovina for the protection of human rights presents an unusual degree of complexity. Jurisdictional bodies entrusted specifically with the task of protecting human rights co-exist with other such bodies that are expected to deal with allegations of human rights violations that arise in the context of the cases brought before them, inevitably leading to a certain degree of duplication.
3. The Commission therefore suggested in its above-mentioned opinion that the constitutional instruments in force should be interpreted in a very careful manner, with the institutions in question taking into account, when deciding whether they are competent to examine a case, not only laws and regulations but also the case-law of other institutions. Coordination of their practice by disseminating information on the cases introduced or pending before or decided by the institutions concerned, as well as careful drafting of their rules of procedure, are of the utmost importance and should indeed have been ensured from the first.
4. However, as the Commission noted in its preliminary proposal, interpretation has its limits. The Commission indicated several elements likely to affect the coherence of the actual structure of human rights protection mechanisms, of which the following are of particular relevance to the judicial protection of human rights in the Federation of Bosnia and Herzegovina:

• the constitutional regime in Bosnia and Herzegovina creates an unusually large network of legal avenues for claiming violations of fundamental rights, the length and complexity of which may adversely affect the effectiveness of the protection afforded;
• the creation of specific human rights bodies is an important step in the consolidation of peace in Bosnia and Herzegovina, as respect for human rights is the cornerstone of the Dayton and Washington peace agreements. Nonetheless, duplication of bodies and competences should be avoided since it may in the end be detrimental to human rights protection. With this in mind, it may be advisable to undertake constitutional amendments where the creation of specific human rights bodies may appear unnecessary or no longer necessary from a legal standpoint;
• the effectiveness of human rights protection may also be adversely affected by important disparities in the human rights protection systems of the two entities. A certain parallelism in the protection afforded under the legal orders of the two entities may be required to ensure that there exists a balanced and coherent judicial system for the protection of human rights in Bosnia and Herzegovina in its entirety;
• finally, the integration of Bosnia and Herzegovina as a state, the consolidation of its constitutional situation and the effective development and functioning of its constitutional institutions may require that human rights protection be entrusted progressively, if not entirely, to the Constitutional Court of Bosnia and Herzegovina.

1. This opinion sets out a proposal for the future judicial protection of human rights in the Federation of Bosnia and Herzegovina in the light of the considerations outlined above. In reaching its conclusions the Commission has taken account of the experience gained from the functioning of the institutions concerned since their creation. It is also aware that amendments to legislation and to the Constitution of the Federation of Bosnia and Herzegovina may be required to bring this proposal into effect. A list of the constitutional provisions affected is appended.

1. JUDICIAL PROTECTION OF HUMAN RIGHTS IN THE FEDERATION OF BOSNIA AND HERZEGOVINA UNDER THE CONSTITUTIONAL REGIME IN FORCE

1. Judicial protection of human rights under the Constitution of the Federation of Bosnia and Herzegovina

1. The Constitution of the Federation of Bosnia and Herzegovina provides for three courts to be created at the level of the Federation: the Constitutional Court, the Supreme Court and the Human Rights Court (Article IV.C.1.1). Under Chapter IV.C of the Constitution, the composition and distribution of competences between these courts is as outlined below.

a) Constitutional Court

2. The Constitutional Court is composed of nine members: six nationals and three internationals. The primary functions of the Constitutional Court are to resolve disputes between cantons; between any canton and the Federation Government; between any municipality and the canton of which it is a part or the Federation Government; and between or within any of the institutions of the Federation Government. The Court also determines, at the request of one of the applicants specified under Article IV.C.3.10(2) of the Constitution, whether a law or a regulation is in conformity with the Constitution of the Federation. The Supreme Court, the Human Rights Court or a cantonal court have an obligation to refer any doubt as to whether an applicable law is in conformity with the Constitution to the Constitutional Court. Its decisions are final and binding.
3. Since the Court became operational in January 1996, it has received a total of 77 applications. Of these, 69 have been resolved. 17 were decided on the merits, 1 was withdrawn and 51 applications were held to be inadmissible (submitted by an unauthorised applicant or not within the jurisdiction of the Court).

b) Supreme Court

4. The Supreme Court is composed of a minimum of nine judges, although this number may be increased by legislation, and is the highest court of appeals of the Federation of Bosnia and Herzegovina. Under the Constitution it can hear appeals from cantonal courts in respect of matters involving questions concerning the Constitution, laws or regulations of the Federation and concerning other matters as provided for in Federation legislation, except those within the jurisdiction of the Constitutional Court or of the Human Rights Court. It also has original jurisdiction under Federation legislation over cases involving international and inter-cantonal crimes, including terrorism, drug trafficking and organised crime. The decisions of the Supreme Court are final and binding.
5. The number of judges of the Supreme Court is currently set at 21. However, 6 positions are vacant at present.

c) Human Rights Court

6. The competence of the Human Rights Court extends to any question concerning a constitutional or other legal provision relating to human rights or fundamental freedoms or to any of the instruments listed in the Annex to the Constitution of the Federation of Bosnia and Herzegovina. The Court has jurisdiction over cases commenced after 1 January 1991.
7. Any party to an appeal in which the Constitutional Court, the Supreme Court or a cantonal court has pronounced a judgment that is not subject to any other appeal may lodge an appeal with the Human Rights Court on the basis of any question within its competence. An appeal may also be lodged with the Human Rights Court if proceedings are pending for an unduly long time before any cantonal court, the Constitutional Court or the Supreme Court. Finally, the Constitutional Court, the Supreme Court and any cantonal court may, on the request of one of the parties or of its own motion, refer questions on matters falling with the competence of the Human Rights Court to that Court for a binding opinion.
8. Under the transitional provisions of the Constitution (Article IX.9) the Human Rights Court shall initially consist of seven judges, three of whom are to be appointed by Federation authorities and four of whom shall be foreigners appointed by the Committee of Ministers of the Council of Europe in accordance with its Resolution (93) 6. To date, the four foreign judges have not been appointed and the Court has not commenced functioning.

d) Relations between the three courts of the Federation

9. Certain features of the system of courts of the Federation are particularly striking. In particular, all three courts hand down final and binding decisions, and the distribution of competencies between the courts is unusual. It is especially difficult to distinguish between constitutional questions and human rights questions in the context of an entity where human rights are an integral part of the constitution, and this difficulty may discourage the Constitutional Court from using its possibility of referring human rights questions to the Human Rights Court. Similarly, the Supreme Court or a cantonal court may have difficulty deciding whether a preliminary question involving human rights issues should be referred to the Constitutional Court or the Human Rights Court. In such a case they would be obliged to refer the question to the Constitutional Court, as they are required under Article IV.C.3.11 of the Constitution to refer to that court any question of compatibility with the Constitution of an applicable law, whereas no such obligation exists with regard to the Human Rights Court.

1.2 Judicial protection of human rights in the Federation of Bosnia and Herzegovina in the context of the Dayton Agreement

10. In accordance with the transitional provisions of the Constitution of the Federation of Bosnia and Herzegovina (Article IX.9.d) the Human Rights Court is to operate within the framework of Resolution (93) 6 of the Committee of Ministers of the Council of Europe as long as that resolution remains applicable to the Federation - that is, until Bosnia and Herzegovina becomes a member state of the Council of Europe or until otherwise agreed between Bosnia and Herzegovina and the Council of Europe. As indicated in the Commission's Opinion on the Establishment of a Human Rights Court of the Federation of Bosnia and Herzegovina (CDL (97) 21 and CDL-INF (98) 15 pp. 76 ff.), the Committee of Ministers has already appointed members to the Human Rights Chamber in Bosnia and Herzegovina, as provided for in Annex VI to the Dayton Agreements, under its Resolution (96) 8. In these circumstances, the Committee of Ministers could decide not to proceed with the appointment of judges to the Human Rights Court of the Federation of Bosnia and Herzegovina if it believes that the aims of Resolution (93) 6 would not be served by the setting up of a second control body within the same state. As noted above (para. 13), the Committee of Ministers has not yet decided to proceed with these appointments.
11. The Venice Commission examined in detail the implications of the simultaneous functioning of two international human rights jurisdictional bodies in its Opinion on the constitutional situation in Bosnia and Herzegovina with particular regard to human rights protection mechanisms (CDL-INF (96) 9; CDL-INF (98) 15 pp. 30 ff.). It pointed to the length and complexity of the process of exhaustion of domestic remedies for victims of human rights violations, with the possible intervention of a municipal court, a cantonal court, the Supreme Court, the Human Rights Court as well as the Constitutional Court of the Federation, followed by the Human Rights Ombudsperson of Bosnia and Herzegovina and then, finally, the Constitutional Court of Bosnia and Herzegovina or the Human Rights Chamber. This excessively long process as well as the sheer complexity created by the proliferation of bodies entrusted with the task of human rights protection may not only be detrimental to victims' rights in itself but it may also discourage individuals from the Federation of Bosnia and Herzegovina from applying for relief to the European Court of Human Rights when this becomes possible. Simplification of this scheme is thus clearly desirable.
12. For these reasons, concerning the protection of individual victims of human rights violations within the Federation of Bosnia and Herzegovina and the coherence of human rights protection in Bosnia and Herzegovina as a whole, the Venice Commission has consistently advocated that the Human Rights Court of the Federation of Bosnia and Herzegovina should not be created (see the Commission's opinions cited above and the Preliminary Proposal for the Restructuring of Human Rights Protection Mechanisms in Bosnia and Herzegovina (CDL-INF (99) 12)).
13. The Commission maintains its opinion that this court should not be created, as its creation does not correspond to any pressing need, is unlikely to improve the protection of human rights within the Federation of Bosnia and Herzegovina and may indeed rather hinder the process. The remainder of this opinion therefore deals with the future system of judicial protection of human rights in the Federation of Bosnia and Herzegovina in the absence of the Human Rights Court.

1. JUDICIAL PROTECTION OF HUMAN RIGHTS IN THE FEDERATION OF BOSNIA AND HERZEGOVINA IN THE ABSENCE OF THE HUMAN RIGHTS COURT

1. The Commission has previously considered the question of the form that judicial protection of human rights will take in the Federation of Bosnia and Herzegovina in the absence of the Human Rights Court. It has noted that although the Dayton Agreement and the Washington Agreement neither have the same parties nor cover the same area of jurisdiction and therefore the formal or legal validity of the provisions on the Human Rights Court of the Federation of Bosnia and Herzegovina has not been affected (CDL (97) 21), the effect of Annex VI to the Dayton Agreement, providing for a human rights control body to be set up at the level of the state by the Committee of Ministers of the Council of Europe acting under the Resolution (93) 6 mechanism, is to render inoperative or obsolete the provisions on the Human Rights Court of the Federation of Bosnia and Herzegovina (CDL-INF (99) 12).
2. It should be borne in mind that the Constitution of Bosnia and Herzegovina (Annex IV to the Dayton Agreement) provides that the rights and freedoms set forth in the European Convention on Human Rights and its Protocols shall apply directly in Bosnia and Herzegovina, and further, that they shall have priority over all other law. There is thus an obligation for all courts operating at all levels in Bosnia and Herzegovina (whether at the level of the state or within the entities) to apply the provisions of this Convention directly (in concreto) in the context of the cases arising before them. This includes violations of human rights committed by administrative bodies.
3. Several implications flow from this. First, this obligation, although important, is of limited effect with respect to the Constitutional Court in the exercise of its primary functions, as only a limited number of individuals or legal entities can lodge cases with it under the provisions of Article IV.C.3.10 of the Constitution of the Federation. However, with respect to any questions referred to it by the Supreme Court or a cantonal court of the Federation under the mandatory referral provisions of Article IV.C.3.11, the Constitutional Court has an obligation to apply the rights and freedoms of the European Convention on Human Rights and its Protocols directly whenever it undertakes a review of constitutionality. Likewise, the Supreme Court, in any case that comes before it, not only can but must ensure that these rights and freedoms are applied.
4. Furthermore, the Constitutional Court cannot find a disputed legal provision to be in conformity with the Federation Constitution if the provision conflicts with any of the human rights instruments incorporated into it by the Annex to the Constitution. Thus a large part of the appellate jurisdiction of the Human Rights Court falls within the jurisdiction of the two other courts of the Federation, with the Supreme Court undertaking concrete review of human rights questions on the basis of the European Convention of Human Rights and its Protocols in the appeals and first instance cases before it, and the Constitutional Court undertaking concrete and abstract review of human rights issues in the questions referred to it by other courts and abstract review of human rights issues when it deals with cases involving abstract constitutional review. Indeed these overlaps in competencies, combined with the unusual existence of three highest jurisdictions within a single entity, are an essential part of the complexity and confusion that made the creation of the Human Rights Court undesirable even before the Dayton Agreement came into effect.
5. Certain aspects of the jurisdiction of the Human Rights Court as laid down in the Constitution do not overlap with the competencies of the other courts of the Federation: specifically, the possibility for parties to lodge an appeal with the Human Rights Court if proceedings are pending for an unduly long time before another court of the Federation or a cantonal court. This possibility, however, also falls within the jurisdiction of the Human Rights Chamber or of the Constitutional Court of Bosnia and Herzegovina if the two are merged. In the absence of the Human Rights Court, applicants may directly address the Human Rights Chamber, which, in keeping with Strasbourg case-law, may deem a case admissible when all effective remedies are exhausted as determined by the facts. Naturally, particular care should be taken by state institutions when examining cases from the Federation to ensure, where there are differences between the human rights instruments applicable at the Federation and the state level, that the human rights standards applied are not lower than those applicable in the Federation.
6. The right of complainants to appeal to the Constitutional Court of Bosnia and Herzegovina or the Human Rights Chamber on other grounds will of course remain unchanged under this arrangement. The final domestic instance of review of human rights questions arising in the Federation of Bosnia and Herzegovina will continue to be a body at the level of the state. When Bosnia and Herzegovina ratifies the European Convention on Human Rights, victims will be able to petition the European Court of Human Rights once all domestic remedies have been exhausted.
7. Such a solution may not, however, be obvious to victims of human rights violations and it would be advisable to proceed with constitutional amendments at some point so as to ensure that the Constitution of the Federation reflects clearly the structure of human rights protection guaranteed within the Federation, in the context of the protection mechanisms available in Bosnia and Herzegovina, so that the avenues of appeal that may be explored by victims of human rights violations within the Federation and their lawyers are clear to the very people that need to use them.

2.2 Amendment of the Constitution of the Federation of Bosnia and Herzegovina so as to eliminate the Human Rights Court

8. It will be noted that the above proposal, although minimalist, would nevertheless require some amendments to the Constitution of the Federation of Bosnia and Herzegovina in order best to protect persons complaining of human rights violations. The Commission is of the opinion that in such circumstances it would be best to proceed with constitutional changes sooner rather than later in order to ensure that the highest standards and most rational system of judicial protection of human rights possible are provided to complainants. In particular, in order to avoid encumbering the Constitutional Court of the Federation with questions of minor importance, it is suggested that the referral of constitutional questions to the Constitutional Court of the Federation should no longer be obligatory but should be made at the discretion of the judge concerned.
9. The Commission thus recommends that the Constitution of the Federation be amended as soon as possible, not only in order to eliminate all references to the Human Rights Court, but also, by making the mandatory referrals provided for under Article IV.C.3.11 of the Constitution of the Federation optional. Concretely, this means replacing the word "shall" with "may" in the above-mentioned Article, so as to simplify the system, thereby increasing both its clarity and its effectiveness in protecting and affording remedies to aggrieved persons. The Commission proposes that:

- in accordance with their obligations under the Constitution of Bosnia and Herzegovina, all courts in the Federation shall continue to apply directly the provisions of the European Convention of Human Rights and its Protocols;

- any human rights issues raised before the cantonal courts or the Supreme Court of the Federation may be referred by this court to the Constitutional Court of the Federation or the Constitutional Court of Bosnia and Herzegovina, as the court sees fit;

- the decision of the Constitutional Court of the Federation on an issue referred to it under the above procedure should be binding on the parties and on all courts in the Federation in subsequent proceedings on the same case;

- the judgment of the cantonal court or Supreme Court may be subject to an appeal on constitutional or human rights grounds by one of the parties to the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina as appropriate, and this judgment shall be final and binding;

- given that individual complaints may be made to the institutions set up under the Dayton Agreement, the possiblity of making individual complaints to the Constitutional Court of the Federation should not be introduced;

- in the interests of coherent human rights protection in Bosnia and Herzegovina, the appropriate forum for individual complaints on human rights matters will be the forum competent in such matters at the level of the state (the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina if the two are merged as proposed by the Venice Commission in its Preliminary Proposal on the Restructuring of Human Rights Protection Mechanisms in Bosnia and Herzegovina (CDL-INF (99) 12));

- the competence of the Human Rights Court to hear appeals on cases pending for an unduly long time should not be transferred to another court within the Federation, since such matters already fall within the competence of the Ombudsman of the Federation as well as that of the Ombudsperson, the Human Rights Chamber and the Constitutional Court of Bosnia and Herzegovina under Article 6 of the European Convention on Human Rights.

10. Several observations should be made. First, this scheme, although greatly reducing the overall number of avenues to be explored by applicants and thereby reducing the complexity of the scheme and the probable length of proceedings, will no doubt lead to an increase in the number of cases lodged with the Constitutional Court of the Federation. It may be advisable to amend the rules of procedure of this court in order to allow it to filter cases effectively and to provide shorter judgments on simpler questions where established case-law already exists, so as to avoid being overburdened. Other courts of the Federation may also apply the human rights case-law of the Constitutional Court directly where clear case-law exists, without referral. Applicants who feel their rights have been violated by the failure of a court in the Federation to refer a human rights question to the Constitutional Court of the Federation appropriately may of course appeal the judgment of this court to the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina.
11. Second, although this model would theoretically allow applicants to raise several human rights questions at various times during proceedings even before the same court provided that those questions raise different human rights issues, it will in practice very quickly become apparent that it is in applicants' interest to raise all human rights questions relevant to their case at the same time so as to avoid the unnecessary expense and delay involved in repeated proceedings before the Constitutional Court of the Federation. If necessary, appropriate provisions could also be made in the rules of procedure of this Court to enable it to deal with vexatious litigants.
12. Third, the probable increase in the workload of the Constitutional Court of the Federation may mean that an increase in the means at the disposal of the Court will be required. In any case it would be advisable for the composition of both the Supreme Court and the Constitutional Court to include a certain number of judges with particular expertise in human rights so as to enable them to assume authoritatively their increased competence in human rights. This will be particulary important in the early days after amending the Constitution and until a certain core body of jurisprudence in human rights matters is established within the Federation.
13. Finally, as wide-reaching changes are also envisaged amongst the institutions at the level of the state that are competent in human rights matters, careful coordination will be needed to ensure that the overall structure of human rights protection in Bosnia and Herzegovina remains clear, coherent and effective.

3. CONCLUSIONS

14. The Commission finds that:

The Commission remains at the disposal of interested parties and the Office of the High Representative, should they so request, to collaborate in the implementation of the proposed changes.

The following articles of the Constitution of the Federation of Bosnia and Herzegovina, which make express reference to the Human Rights Court, will need to be deleted or amended as follows in accordance with the proposal contained in part 2.1:

delete last sentence

delete ", including any in the Human Rights Court"

The Courts of the Federation shall be:

delete "or the Human Rights Court"

delete ", the Human Rights Court"

delete

A further constitutional change as described in para. 27 (in addition to those listed above) will be required in order to give effect to the proposals contained in part 2.2:

Finally, the Law on the Human Rights Court of the Federation of Bosnia and Herzegovina will need to be repealed.