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Venice, 16 June 2000
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Restricted
CDL (2000) 47 fin
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EUROPEAN COMMISSION FOR
DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
REPORT
of
the
Working
Group
on
the Merger of the Human Rights Chamber
and
the Constitutional Court of Bosnia and Herzegovina
Sarajevo,
Strasbourg
December
1999 – June 2000
Introduction
1.
At its 39th Plenary meeting (Venice, 18, 19 June
1999), the European Commission for Democracy through Law (Venice Commission) adopted
a Preliminary Proposal for the re-structuring of Human Rights protection
Mechanisms in Bosnia and Herzegovina (CDL-INF (99) 12, Appendix 3). This
document, drawn up at the request of the Office of the High Representative,
includes the proposal for a "merger" of the Human Rights Chamber
(hereafter the "Chamber") and the Constitutional Court (hereafter
"the Court"), at the level of the State of Bosnia and Herzegovina.
Two main reasons are put forward for this proposal:
First, the partial overlapping between the
competence of the Chamber and the Court as regards human rights issues is
likely, in the Venice Commission’s view, to become an important factor of
dysfunctioning of human rights adjudication in the country.
Second, in the Commission’s view, the Chamber is
a transitional sui generis (quasi-international) institution, whose
establishment under Annex 6 to the Dayton Peace Agreement was necessary pending
the accession of Bosnia and Herzegovina to the Council of Europe and
ratification of the European Convention on Human Rights (ECHR). The Chamber
should thus cease its operation after the ratification of the ECHR and the
subjection of Bosnia and Herzegovina to the control mechanisms of this
instrument, namely, the European Court of Human Rights.
2.
The Venice Commission concluded that it is both logical and
desirable to opt for the transfer of all competences of the Chamber to the
Court in order to entrust all final appeals in human rights cases to a single
jurisdictional body at the level of the State. It was proposed that this
transfer should take the form of a "merger" of the Human Rights
Chamber with the Constitutional Court, ensuring not only competence transfer
but also an effective transfer of expertise, experience, procedural and other
capacities and resources. The Commission found that such a "transfer"
should be structured without resulting in a diminution in the judicial
protection of human rights in Bosnia and Herzegovina.
3.
As suggested in the above mentioned proposal, the Venice
Commission entrusted a Working group to examine the modalities of the merger
and the possible problems it may raise and draw up a report
·
The present report was drawn by Mr Christos
Giakoumopoulos, Head of the Constitutional Justice Division of the Venice
Commission, and Mr Peter Kempees, member of the Registry of the European Court
of Human Rights and former Registrar of the Human Rights Chamber of Bosnia and
Herzegovina (from December 1997 to August 1998). Mr Anders Månsson, present
Registrar of the Human Rights Chamber, Mr Nicolas Maziau, Adviser to the
President of the Constitutional Court, Ms Therese Nelson, Executive Officer of
the Human Rights Chamber and Ms Biljana Potparić, Acting Secretary General
of the Constitutional Court assisted the drafters and provided information on
the Chamber and the Court and their working methods.
1.
It should be stressed that the Working Group’s mandate was not
to examine the legal and political aspects of the Venice Commission’s proposal.
Its mandate was to "investigate the procedural, administrative, financial
and other practical issues of the merger and make recommendations".
2.
The working group considered :
·
Substantive legal issues, namely, whether the
protection afforded to human rights by the Constitutional Court of Bosnia and
Herzegovina under the Constitution of Bosnia and Herzegovina and its Rules of
Procedure can comprise the protection afforded by the Human Rights Chamber
under Annex 6 to the Dayton Agreement (chapter I of this Report);
·
The working methods of the two institutions and their
human and financial resources (chapter II);
·
A possible time schedule for the transfer of
competence, the combination of working methods and the merger of the human and
financial resources (chapter III).
I. Legal issues
1.
As the competences of the Chamber and the Court are expressly
set out in the Dayton Peace Agreement (Annex 6 and Annex 4, respectively), a
transfer of competence from the Chamber to the Court without any amendment of
the Constitution will only possible if the competence of the Court, as
presently set out in the Constitution, comprises or can be construed in such a
way as to comprise the competence of the Chamber.
2.
The Human Rights Chamber is one of the two bodies of the Human
Rights Commission of Bosnia and Herzegovina created under Annex 6 to the Dayton
Peace Agreement, the other being the Human Rights Ombudsman (usually
referred to as "Ombudsperson"). The Chamber’s competence
extends to all allegations of violations of human rights as guaranteed in the
European Convention for the Protection of Human rights and Fundamental Freedoms
and its Protocols, but also discrimination as regards the enjoyment of fundamental
rights enumerated in 15 other human rights instruments listed in the Appendix
to Annex 6. Cases may be brought before the Chamber by the Ombudsperson, on
behalf of the applicants, or, most frequently, directly by the individuals
complaining of a violation of their fundamental rights. The Chamber has to
decide which applications to accept and in what priority to address them taking
into account specific admissibility criteria which will be briefly discussed
below. The decisions of the Chamber are final and binding. The Chamber may end
a case by accepting a friendly settlement.
3.
The Constitutional Court has jurisdiction to decide any
dispute that arises under the Constitution between the Entities and the central
Government and between the Entities themselves or between institutions of
Bosnia and Herzegovina including the question of compatibility of an Entity's
Constitution with the Constitution of Bosnia and Herzegovina. (Article VI, para. 3 (a) of the
Constitution of Bosnia and Herzegovina). It also has appellate jurisdiction
over constitutionality issues arising out of a judgement of any other court in
Bosnia and Herzegovina (Article VI para 3 (b). This may of course include human
rights disputes (cf. Article II, paras 2 to 4, of the Constitution). Furthermore,
the Court has 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 (Article VI para 3 (c) of the
Constitution).
Ratione materiae
11.
A systematic reading of the above mentioned provisions leads
to the conclusion that ratione materiae the competences of the
Court and the Chamber in human rights matters are identical.
12.
The Chamber (Annex 6, Article II para 2 (a)) and the Court
(Articles II and VI para 3 (b) and (c) of the Constitution) are both competent
to deal with alleged violations of human rights enshrined in the European
Convention of Human Rights and its Protocols. The rights expressly referred in
Article I (1 to 14) of Annex 6 and in Article II paras 3 and 4 of the
Constitution are identical.
13.
The Chamber’s ratione materiae competence
extends to alleged discrimination in the enjoyment of the rights and freedoms
provided for in the international agreements listed in the Appendix to Annex 6.
The Court’s ratione materiae competence covers exactly the same
field, since the same agreements are listed Appendix I to the Constitution and
Article II para 4 of the Constitution prohibits discrimination in the enjoyment
of these rights.
14.
In several decisions the Court expressly declared that it is
competent to deal with cases raising issues under substantive provisions of the
European Convention on Human Rights, since, "under Article II.2 of the BiH
Constitution, the Court has to apply the European Convention and its Protocols
directly in Bosnia and Herzegovina" and that these have priority over all
other law (see e.g. decision of 24 September 1999 in case U-6/98).
15.
Consequently, the Chamber’s competence ratione materiae
is already comprised in the ratione materiae competence of the
Court.
Ratione temporis
16.
Ratione temporis, the competence of the Human
Rights Chamber covers all acts or decisions occurring after 14 December 1995
(date of the signature and entry into force of the Dayton Agreement). A
substantial number of complaints have been rejected on the ground that the
matters complained of occurred before 14 December 1995. In this respect the
Chamber has consistently held starting with the first case which came before
it. that the Agreement cannot be applied retroactively (No CH/96/1, Matanović
v. RS). However, although the Chamber has no jurisdiction to decide whether
facts prior to the relevent date amount to a violation of human rights, it can
consider evidence of events that occurred before that date in so far as it may
cast light on an applicant situation since the entry into force of the Dayton
Agreement.
17.
The Constitution does not expressly provide for a limitation as
to the Court’s ratione temporis competence. However, as the
rights are guaranteed in the Constitution as from its entry into force, it must
be assumed that the ratione temporis competence of the Court is
not more limited than that of the Chamber. In its decision of 5 June 1998 on
case U 2/98, the Court clearly stated that it is "not competent to
evaluate the constitutionality of any judgement that has been passed before the
Constitution of Bosnia and Herzegovina came into force". The Constitutional
Court might however be competent, by virtue of Article 3 of the transitional
arrangements (Annex II) of the Constitution, to deal with cases brought before
the Constitutional Court (of the Republic of Bosnia and Herzegovina) before the
entry into force of the Dayton Agreement and the Constitution. In its decision
of 22 December 1997 on case U 40/95, which had been filed in November 1995, the
Constitutional court expressly referred to the above mentioned provision. It
did not reject the case as incompatible ratione temporis but
for other reasons.
18.
It follows from the above that there is no obstacle to
transferring the Chamber’s ratione temporis competence to the
Court.
Ratione personae
19.
Because of the Chamber’s quasi international character, the
defendants in the proceedings before the Chamber are the parties to Annex 6,
namely Bosnia and Herzegovina (the State), the Federation of Bosnia and
Herzegovina and the Republika Srpska. Therefore, although the Chamber may hear
any person allegedly responsible for human rights violations, its decisions can
only indicate that one or more of these three parties have acted in
breach of their obligation to respect human rights. Nevertheless the Chamber
has the possibility to identify clearly in the operative part of its decision the
authority responsible for the redress of the violation and specify the measures
it should take (cf. Article XI, para 1 (b) of Annex 6.
20.
The range of parties potentially involved in the proceedings
before the Constitutional Court is of course much wider, because of the
particular nature of the constitutional proceedings, and may include, for
example, individual municipalities or cantons (of the Federation). Article 11
of the Rules of Procedure of the Court indicates as possible participants in
the proceedings before it in the frame of its appellate jurisdiction "the
appellant and the court whose decision is the object of the lawsuit". It
further states that "on a specific issue the Court shall determine other
participants according to the principle of adversarial proceedings". This
enables the Court to widen further the range of participants in the proceedings
before it and above all to include the appellant’s opponent in the previous
proceedings. Besides, it allows the Constitutional Court to hear the authority
involved and/or allegedly responsible for a human rights violation, to define
this authority’s responsibility in detail and determine the steps needed to
redress the violation.
Access to the Chamber and to the Court
21.
Access to the Chamber and the Court is regulated in different
ways in Annex 6 and in the Constitution.
22.
Annex 6 provides for inter-Party applications for human rights
violations to be brought before the Chamber (Article VIII). Human rights
disputes between Entities or between the State of Bosnia and Herzegovina and
its Entities have not so far been brought before the Chamber. In any case,
Article VI 3 (a) of the Constitution provides that the Constitutional Court
shall have jurisdiction to decide "any dispute that arises under this
Constitution" between the entities or between Bosnia and Herzegovina and
an entity or entities. Clearly this may include inter-Party human rights
disputes.
23.
Annex 6 also provides that the Chamber shall receive
applications "by referral from the Ombudsman on behalf of the
applicant". In a total of 3,449 cases registered by 31 December 1999, only
155 were referred to the Chamber by the Ombudsman. However, although few in
number the Chamber continues to receive applications by the Ombudsman. The new
draft law on the State Ombudsman of Bosnia and Herzegovina provides that the
Ombudsman shall have the power to bring cases before « the highest
judicial authority of the State competent to deal with human rights
issues » as provided for in the laws concerning appeals to this authority.
Since the Ombudsman is not included in the list of authorities and persons who
have the power, under Artcle VI of the Constitution, to bring cases before the
Constitutional Court, a constitutional amendment will be necessary if the
Ombudsman is to have the power to initiate proceedings before the Court after
the proposed merger.
24.
Annex 6 further provides in its Article VIII para 1 that the Chamber
"shall receive … directly from any … person, non governmental
organization, or group of individuals claiming to be the victim of a violation
by any Party (to Annex 6) or acting on behalf of alleged victims who are
deceased or missing for resolution or decision applications concerning alleged
or apparent violations of human rights". The Constitution does not contain
any equivalent provision but expressly provides that "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".
25.
A comparison of the above provisions shows that an alleged
victim of human rights violations may have direct access to the Chamber,
whereas access to the Court requires the previous intervention of some other
court in the country. In other words, on a strict reading, only the Chamber and
not the Court may have original jurisdiction to deal with human rights abuses.
26.
However, the above provisions must be read in conjunction with
several other provisions contained in Annex 6 and in the Rules of procedure of
the Court referring to exhaustion of other remedies before validly addressing
the Chamber or the Court. Article VIII of Annex 6 provides in this respect,
that the Chamber shall decide which applications to accept "taking into
account" the criterion "whether effective remedies exist and the
applicant has demonstrated that they have been exhausted". The Court’s
rules of procedure (Article 11) also provide that "the Court examines the
appeal only if all other legal remedies against the appealed decision have been
exhausted, according to the laws of the entities". In accordance with the
above rules, before lodging a complaint either with the Chamber or with the
Court, a victim of a human rights violation will have to use and exhaust the
legal remedies available in the legal order of Bosnia and Herzegovina.
27.
On the other hand, if no remedy exists before a court in
Bosnia and Herzegovina, or if such a remedy exists in theory but is ineffective,
the alleged victim will still be able to lodge an admissible application with
the Chamber, whereas it is unclear whether his/her application will come within
the Constitutional Court’s appellate jurisdiction.
28.
Two separate questions arise in this respect: Firstly, whether
the constitutional provision on the Court’s appellate jurisdiction (Article VI,
3 (b) of the Constitution) can be construed in such a way as to enable the
Court to deal not only with human rights issues arising out of a judgement, but
also with similar issues arising out of the lack of a judgement,
such as cases of denial of justice. The case-law of the Court does not
so far contain any indication of a development in this sense. Although it
cannot be excluded that case-law may develop in this direction, it is not
possible to conclude already at this stage that the competence of the
Chamber to deal with allegations of human rights violations under Article II
para 2 of Annex 6 coincides with the "appellate jurisdiction" of the
Court.
29.
The second question concerns the requirement as to the
exhaustion of other (domestic) remedies in the law and practice of the two
institutions. It follows from Article VIII, para 2 (a) of Annex 6, that the
Chamber is only required "to take (this criterion) into account". The
terms used in Court’s rules of procedure are stricter: "the Court examines
the appeal only if all other legal remedies against the appealed decision have
been exhausted". Moreover, the criterion in Annex 6 refers to
"effective" remedies whereas the Court’s rules refer to "all other
legal remedies". The number of cases rejected under the domestic remedies
rule by the Chamber has been relatively small, due at least in part to doubts
as to the effectiveness of existing remedies before the ordinary courts or
other authorities. Thus, in the case CH/96/17 Blentić and others v.
RS, the Chamber held that remedies leading to judgements that could not be
effectively enforced could not be regarded as "effective" and did not
need to be exhausted. However, when a remedy is clearly available and there are
no reasons to believe that it is ineffective, the Chamber applies the rule (see
e.g the Chamber’s decisions in the cases CH/97/54 Mitrović v. FBH
and CH/98/663 Mutapčić v. BH and FBH. In contrast, the Court’s
interpretation of the term "remedies" in its Rules of Procedure would
appear to include extraordinary remedies as well. By its decision of 5 June
1998 in case U-12/97 it rejected the appeal against a judgement of the High
Court of Bijeljina because the appellant had failed to apply for "revision"
prior to filing his appeal to the Constitutional Court.
30.
Having regard to the fact that the Constitutional Court’s
case-law as to the rule of exhaustion of remedies is not yet developed, it is
not possible to assess already now whether the application of this rule by the
Court will prove to be stricter in practice than the Chamber’s. In any case,
there is nothing to prevent the Court from adopting a more flexible
interpretation of this rule or, if necessary, revise the wording of Article 11
of its rules of procedure.
31.
The same applies to time limits for the introduction of cases
before the two institutions. Pursuant to Article VIII para 2 of Annex 6, the
Chamber shall decide which applications to accept taking into account the
criterion whether the application has been filed within six months from
the date on which the final decision complained of was taken. In accordance
with Article 11 of the Court’s rules of procedure the Court will only deal with
the appeal if it is lodged within 60 days after the appellant has
received the challenged decision. This difference can be explained at least in
part by the differences in nature between human rights proceedings and
constitutional appeals proceedings. It is to be underlined in addition that the
60 days time limit was recently introduced in the Court’s rules of procedure in
substitution for the previous 30 days time limit, which was found to be too
short. The Working Group does not consider that the 6 months time limit
necessarily offers more protection than the 60 days time limit. Long appeal
time limits in domestic proceedings may sometimes hinder rather than accelerate
the protection granted to individuals by unduly prolonging the proceedings. Be
that as it may, having regard to the fact that the Court can at any time amend
its Rules of procedure, the 60 day time limit cannot be regarded as an obstacle
to the transfer of competences from the Chamber to the Court.
32.
The working group has refrained from considering or comparing
the accessibility of Chamber and Court procedures on the basis of the
percentage of complaints declared inadmissible for non-compliance with
procedural requirements of admissibility. Such a comparison would be pointless
given that by the time when the Court became operational (no sooner than
October 1997), the Chamber had already been functioning for some time, and had
become known among the legal profession and the public. The following
statistics are given for purposes of information only: As of 31 December 1999,
the Chamber had given 170 decisions on admissibility (separate
admissibility decisions or decisions determining both admissibility and merits)
in which it found 103 applications to be inadmissible; the proportion of
complaints declared admissible by the Chamber is far greater than that of the
European Commission of Human Rights. Out of 44 decisions given by the
Constitutional Court until November 1999, 34 reject the complaint for reasons
of admissibility. Obviously, this high percentage is due to the fact that
numerous cases relate to requests addressed to the Court by individuals for
review of the constitutionality of laws. A procedure for constitutional review
existed before the entry into force of the Annex 4 Constitution but is
no longer provided for. In an attempt to make potential applicants more
familiar with its new prerogatives, the Court has repeatedly stated in its
decisions, that it would have been competent to consider the issues raised by
the complainant in the context of its appellate jurisdiction, subject to the
exhaustion of other legal remedies.
33.
To sum up, the diverging ways in which access of individuals
to the two institutions is provided need not in principle be an obstacle to the
transfer of competence. Should be the Court’s stricter admissibility
requirements be considered an obstacle to the proposed transfer, the rules of
procedure of the Court can be changed to reflect the more flexible and
pragmatic admissibility practice of the Chamber.
34.
In order to avoid reducing the protection of human rights
afforded to individuals in Bosnia and Herzegovina under Annex 6, the
Constitutional court’s "appellate jurisdiction" should be construed
in such a way as to enable the court to rule in the absence of an effective
remedy at a lower level. If this cannot be achieved by means of interpretation
of the Court’s "appellate jurisdiction" (for instance by virtue of
the direct application in the national legal order of Article 6 and 13 of the
ECHR), then Article VI, para 3 of the Constitution should be amended.
Effects and execution of judgements
35.
Under Annex 6, the Chamber shall consider applications
concerning human rights violations. In its decision the Chamber may find
that a decision, a fact or act imputable to the State or its entities is in
breach of a provision guaranteeing human rights (Article XI, para 1 (a)). This
finding is of a declaratory nature and has no other immediate effect. However,
pursuant to Article XI, para 1 (b), if the Chamber finds a violation, it shall
address in its decision what steps shall be taken by the respondent Party to
remedy the violation, including orders to cease and desist or monetary relief.
The Chamber may thus order the respondent Party to take all necessary steps
"by way of administrative or legislative action" to annul a decision
or to amend a provision which was found to be in breach of human rights
guaranteed in Annex 6. The Chamber’s orders are often detailed. For instance,
in its decision in case CH/97/67, Zahirović v. BH and FBH,
the Chamber ordered the respondent Party to "undertake immediate steps to
ensure that the applicant is no longer discriminated against in his work … and
that he be offered the possibility of resuming his work on terms equal with
those enjoyed by other employees". In case CH/96/26, Islamic Community
of Banja Luka v. RS, it "ordered the respondent Party not only
"to swiftly grant the applicant … the necessary permits for reconstruction
of seven of the destroyed mosques at the location where they previously
existed" but also "to allow the applicant to erect enclosures around
the sites of the 15 destroyed mosques and to maintain these enclosures"
and to "take all necessary action to refrain from destroying or removing
any object remaining" there. In case CH/98/756, DM v. FBH, the
Chamber ordered "that the respondent Party through its authorities take
immediate steps to reinstate the applicant into her house". The Chamber’s
power to issue such orders is clearly wider than the power of the European
Court of Human Rights, under Article 41 of the ECHR, to grant just satisfaction.
36.
Furthermore, the Chamber has the power to award compensation
for "pecuniary and non-pecuniary injuries" and has done so in almost
all cases where it found violations of human rights.
37.
Parties to Annex 6 are bound to "implement fully
decisions of the Chamber" and in its decisions the Chamber habitually
orders the Party found in breach of its obligations under Article 6 to report
to it within a set time limit on the steps taken to give effect to its orders.
In its annual reports of 1996-97 and 1998 the Chamber has expressed serious
concerns about the lack of implementation of its decisions by the State and the
entities. Despite an improvement in compliance in 1999 and early 2000, in
particular as regards the FBH, the Chamber still does not consider the record
of implementation to be satisfactory (see also: "Report on the Conformity
of the Legal Order of Bosnia and Herzegovina with the Council of Europe
Sandards" by Franz Matscher and Marc Vila Amigo AS/Bur/BIH (1999) 1
; see also Human Rights Reports regularly issued by the OHR, http://
www.ohr.int).
38.
Under the Constitution of Bosnia and Herzegovina, the
Constitutional Court has appellate jurisdiction and jurisdiction to decide
whether a provision or a law is compatible with the Constitution or the ECHR and
its Protocols. The Constitutional Court of Bosnia and Herzegovina has so far
given 47 decisions in cases brought before it under Article VI.3 of the
Constitution of Bosnia and Herzegovina. The execution of decisions declaring an
act incompatible according to Article VI.3 (a) or (c) of the Constitution
differs from the of execution of decisions of the Court’s appelate jurisdicton
under Article VI 3 (b) of the Constitution.
39.
In case of execution of a decision declaring an act
incompatible, the authority which adopted the incompatible act may be granted a
period, within which to adapt it accordingly; if the incompatibility was
not eliminated within the set period, the Court shall declare, in a decision,
that the incompatible provisions cease to be valid. Such provisions shall cease
to be valid on a day on which the later decision of the Court is published in
the "Official Gazette of Bosnia and Herzegovina" (Article 59 of the
Rules of the Procedure of the Constitutional Court").
40.
As regards the execution of decisions given in the framework
of the Court’s appelate jurisdiction , Article 72 of the Court’s Rules of
Procedure provides that every interested person or body may request the
execution of the decision of the Court. Moreover, upon the request by a party, the
Court shall confirm by a ruling that the decision of the Court has not been
executed and shall undertake further measures for the purpose of execution. So
far, the Court has not received any request to take action in respect of non
execution of its decisions given in cases of individual appeals.
41.
It has to be stressed that, by contrast to the Chamber, some
of the Court’s decisions either have immediate effect or take effect on
the date stipulated in the Court’s judgement and may require no further implementation.
Thus, in the context of its appellate jurisdiction, the Constitutional Court
does not merely find that the challenged decision is in breach of the human
rights provisions of the Constitution but also directly annuls the said
decision and may confirm the validity of a lower instance decision. In the
cases U-6/98 and U-2/99, the Court annulled judgements of the Supreme Court of
the RS and confirmed previous decisions of the Municipal Court of Banja Luka.
The Court further ordered, not the RS but the "defendants" (i.e. the
applicants’ opponents in the proceedings before the Municipal court and the
Supreme Court of RS) "to hand over the apartment located in Banja
Luka" to the applicant "free of persons and personal belongings,
within 15 days of the entry into force of the judgement, otherwise the decision
would be forcefully implemented". The Court’s decisions were served to the
appellant in the case U: 2/99 on 20 November 1999; the decision in the case U:
6/99, was received by the appellant on 25 November 1999. The Court has not yet
received any information or complaint that its above mentioned decisions were
not implemented. However, due to the relatively small number of cases of this
sort decided by the Court, it is too early to make an assessment of the
authorities’ compliance with the Court’s decisions,
42.
Moreover, there is no obstacle to the Court’s ordering the
payment of compensation for pecuniary or non-pecuniary damages or the
restoration of viously existing situation (restitutio in integrum).
Article 69 of the Court’s Rules of procedure expressly refers to this
possibility.
43.
Finally, in the context of its jurisdiction under (a) and (c)
of Article VI 3 of the Constitution, the Court’s decision again has immediate
effect: The provisions found to be incompatible with the Constitution cease to
be valid on the date specified in the Court’s judgement (see Article 56 of the
Court’s Rules of procedure and the Court’s judgement of 14 August 1999 in the
case U 1/99 declaring several articles of the law on the Council of Ministers
not in conformity with the Constitution). Of course, it remains to be seen how
the authorities and, above all, the legislative authorities will comply with
the Constitutional Court’s judgements when their effective implementation will
require positive legislative action on their behalf.
44.
In any case, having regard to the above and despite the
relatively small number of cases decided by the Constitutional Court on the
merits of the complaint, it can be expected that the proposed transfer of
competences will increase the immediate effect of several decisions given in
the context of human rights litigation.
Provisional measures
45.
Article X, para 1 of Annex 6 empowers the Chamber to order
provisional measures. In practice the Chamber generally orders a provisional
measure only where there is some prima facie indication that a protected
right might have been infringed and it appears likely that the applicant will
suffer serious or irreparable harm if an order for provisional measures is not
made. Requests for provisional measures have been frequently made in cases
concerning threatened evictions and numerous orders have been made to preserve
the applicants’ position in such cases. In the case CH/98/1330 Hasanaj and
others v. BH and FBH, the Chamber ordered the respondent authorities to
preserve the applicants’ health by improving the conditions in a refugee camp
and considering their transfer to other premises. In another case
(CH/98/230-231) the Chamber ordered the respondent party (RS) to allow
independent medical examination of the applicant in prison. In the above
mentioned Islamic Community case the Chamber made a provisional order
protecting the sites of the mosques from further interference
46.
The Constitution does not provide for provisional measures to
be ordered by the Constitutional Court. However, Article 70 of the Court’s
Rules of procedure reads as follows: "The Court may until the final
decision has been made, fully or partially suspend the execution of decisions,
laws (acts) or individual acts, if their execution may have detrimental
consequences which cannot be overcome".
47.
The provisional orders of the Chamber should, like
recommendations of the Ombudsperson, effectively be implemented by
authorities both at the State level and at the level of the Entities. Due to
the very broad application of these measures by the Chamber it is possible to
protect individuals against violations even though the applications might be
considered inadmissible due to the non-exhaustion of domestic remedies later.
Having regard to the importance, in practice, of provisional measures, as
appears from the Chamber’s experience, it would be advisable to grant the Court
the power, not only to suspend the execution of challenged decisions, laws, or
individual acts, but also to order positive action as a provisional measure. It
would further be advisable to enshrine this power of the Constitutional Court
in an instrument binding all authorities in BH, i.e., in a law on the
Constitutional Court of BH to be adopted by the Parliamentary Assembly of the
State (see below). Finally, it must be avoided that the broad protection
accorded by means of provisional measures be diminished by the application, by
the Constitutional Court, of criteria which may turn out to be more restrictive
and thus less functional.
Amicable Resolutions
48.
According to Article IX of Annex 6, the Chamber may at any
stage during the proceedings facilitate an amicable resolution of the matter.
In a case concerning termination of employment of a university teacher
during the war, the Chamber facilitated an amicable solution enabling the
applicant to be reinstated in her former position (CH/97/35, Malić v.
FBH).
49.
There is no equivalent provision in the rules concerning the
Court. Naturally, if the case is settled during the proceedings, the Court
shall strike the case off its list of cases. However, it is unlikely that the
Court itself takes action to "facilitate" the settlement of the case.
50.
The amicable resolution of human rights disputes will still be
one of the main duties of the human rights Ombudsperson. Moreover, it is
acceptable to leave the initiative for friendly settlements to the parties to a
dispute. Therefore, the fact that the Court might not be in the position to
"facilitate" an amicable resolution of the dispute should not be
considered as an impediment to the suggested transfer of competence.
Competence to deal with human rights issues
upon referral by another court
51.
Under Article VI, 3 (c) of the Constitution the Court is
competent to decide on issues "referred by any other court of Bosnia and
Herzegovina concerning whether a law, on whose validity its decision depends,
is compatible with (the) Constitution, with the European Convention on Human
Rights and its Protocols, or with the laws of Bosnia and Herzegovina".
Annex 6 does not provide for any equivalent competence of the Chamber. In this
respect, the suggested transfer of competence adds a new dimension to the
mechanism for protection of human rights at the level of the State. The referral
practice already tested in the application of the EC Treaty by the Court of
Justice of the European Community is likely to contribute to the growth of
human rights case-law of the Constitutional Court and its consistent
applications by all lower courts. A matter that may have to be dealt with by
the Strasbourg Court is whether for the purposes of Article 35, para 1 of the
European Court of Human Rights, the domestic remedies have been exhausted when
the Constitutional Court has given its authoritative interpretation.
Conclusion
52.
It follows from the above considerations that the suggested
transfer of competences of the Human Rights Chamber to the Constitutional Court
of Bosnia and Herzegovina can in principle be achieved without any diminution
of the protection granted by the Dayton Peace Agreement. This need not require
amendments to the Constitution in force, although such amendments might clearly
set out the Court’s competence to deal with individual applications, clarify
the State Ombudsman’s (Ombudsperson’s) relations with the Constitutional
Court and improve the provisions concerning the composition of the Court (see
also chapter II).
53.
The transfer will however require normative action. Although
it is true that the possibility of the Constitutional Court following a dynamic
interpretation of its "appellate jurisdiction" cannot be excluded, it
would be preferable to frame and guide this potential evolution by normative
action taken at the State level of Bosnia and Herzegovina. This would require a
constitutional law on the Constitutional Court and several amendments to the
Court’s Rules of Procedure. These substantial undertakings must be accomplished
prior to the suggested merger.
Working methods and human and financial
resources
Working methods
54.
There are obvious differences between the working methods of
the Chamber and the Court, mostly due to the different nature of the
proceedings before them but also to the spectacular difference in workload.
However, these are not likely to make the merger impossible. In this respect it
should be underlined that although Annex 6 contains some rules as to working
methods the Constitution does not contain any and, consequently, practical
adaptations will be easily achievable where necessary by amendments in the
Rules of procedure of the Court. The following is an outline of working methods
of the two institutions:
55.
The Chamber is composed of fourteen members (judges); four are
appointed by the Federation of Bosnia and Herzegovina, two by the Republika
Srpska and the remaining eight by the Committee of Ministers of the Council of
Europe. The President is designated from among the international members.
Pursuant to Annex 6, the Chamber normally sits in Panels of 7 members. When an
application is decided by a Panel, the full Chamber may decide upon motion of a
party to the proceedings or of the Ombudsman to review the decision. No review
is possible of a decision of the Plenary Chamber.
56.
The Chamber holds several panel and plenary sessions per year.
From its creation until December 1999, the Chamber held 42 sessions. In 1998 it
held 11 plenary sessions and 8 sessions of each of its panels. Panel sessions
are in principle combined with plenary sessions. In practice, the Chamber
sessions take place every month (except in August) and take about one week
57.
The Chamber may reject a case as inadmissible de plano
or communicate it to the respondent Government for written observations on the
admissibility and merits. Although the Chamber may take a separate decision as
to the admissibility of an application its practice in communicated cases is to
decide both aspects of the case (admissibility and merits) in a single
decision.
58.
The Chamber can hold public hearings. In practice, it is only
exceptionally that the Chamber will do so, in cases raising particularly
difficult issues of fact or law in order to secure adversarial submissions by
the parties and submission of evidence by witnesses and experts or in cases
raising new or unfamiliar issues. The Chamber’s decisions on the merits are
delivered at public hearings.
59.
The Chamber can decide to give priority to a certain case.
Under Annex 6, Article VIII (2) (e) its is supposed to do so if the case
contains allegations of especially severe or systematic violations or
allegations of discrimination on prohibited grounds.
60.
The Chamber may also request the Ombudsperson to make use of
her investigative powers or ask international field monitors (for instance, the
IPTF) to assist with investigation.
61.
The Chamber may also accept or invite written or oral
submissions from amici curiae, for instance entity Ombudsmen or NGOs.
62.
The Chamber considers the cases introduced before it on the
basis of a report drawn up by its Registrar containing a proposal as to the
procedural steps to be taken and eventually a draft decision on the
admissibility and merits.
63.
The Chamber’s decisions are given in English and in the local
language(s), these being also the working languages.
64.
The use of an "application form" requesting the
applicant to give information relevant to assessing the compliance with
admissibility requirements and to present his/her complaints in a comprehensive
and accurate way (a practice used by the European Court of Human Rights)
facilitates the preparation of the case by the Registry.
65.
The Constitutional Court is composed of 9 judges. Four of them
are appointed by the Federation and two by the Republika Srpska. The remaining
three are internationals appointed by the President of the European Court of
Human Rights. It is submitted that this procedure for nomination, were it to
continue after ratification of the ECHR, might raise delicate problems.
66.
The question has arisen in the Constitutional Court whether it
is necessary for it to function to have its full complement of judges as laid
down in the Annex 4 Constitution. The Working party is of the opinion that
should this question again arise in the future, the Constitutional Court should
not be hindered in its normal operation if a judge is temporarily prevented
from sitting or if a judge’s seat become vacant. If it should appear that
problems of this nature cannot be resolved under the rules in force, the
proposed law on the Constitutional Court should provide for such eventualities.
67.
The Court always sits in Plenary.
68.
In 1999 the Court has held 7 plenary sessions despite the fact
that the institution was not operational between February and June 1999
(because judges from RS suspended their participation). The Court’s sessions
are relatively short, as they usually do not last more than 2 days. The Court’s
Secretariat foresees an increase in the frequency and duration of sessions in
2000.
69.
The Court may also hold public hearings. However, in
principle, most of proceedings are in writing. The Court has held only one
public hearing until now.
70.
The Court has not yet made or asked for any factual
investigations in any cases it has dealt with.
71.
The Court’s decisions deal with both admissibility and merits.
Up to December 1999, the Court has given decisions in 44 cases of which 10 only
deal with the merits of the complaint, the remainder having been found
inadmissible.
72.
The Court deals with cases on the basis of a report drawn up
by a judge rapporteur. The President appoints judges as rapporteurs by
alphabetical order. The judge rapporteur is assisted by one or two legal
advisers. The rapporteur presents the factual and legal aspects of the case and
a draft decision. Following the Court’s vote, a drafting committee composed of
2 judges, two advisers and a proofreader draws up the final version of the Court’s
judgement.
73.
The Court may also decide, in summary ("expedited")
proceedings, not to include a case in its list of cases when it is clearly
inadmissible (see Article 17 in fine of the Court’s Rules of procedure)
74.
The Court’s judgements are given in the local language(s) and
in English. The Court however also uses French in its proceedings, as an
internal working language.
75.
It is clear that the Chamber deals with a much greater number
of cases. By 31 December 1999, the Chamber had issued 292 decisions concerning
admissibility and merits (as well as decisions on claims for compensation,
requests for review and strike outs) on more than 408 applications. Statistics
also show an important development in the Chamber’s capacity to deal with
applications: The number of decisions issued through 1998 was 86 (involving 78
applications) whereas 206 decision were issued in 1999 alone (involving
330 applications).
76.
Similarly, the number of registered applications also
increased. At the end of 1998, 1.496 applications had been introduced before
the Chamber; by 31 December 1999, this number had risen to 3.449. The majority
of these cases concerned one of four issues: JNA apartments, abandoned
property, pensions and frozen bank accounts.
77.
In comparison, the Court’s caseload is at present
substantially lower. At the end of 1999, the Court had dealt with 44 cases and
its docket amounted to about 40 cases. These numbers are likely to increase in
2000 because of the growing awareness of the legal profession of Bosnia and
Herzegovina of the Court’s appellate jurisdiction and of its power to consider
constitutional issues upon referral by other courts. The Court is expected to
be able to cope with this increase at least as long as both institutions remain
operational and the main body of cases is channelled to the Chamber. As from
the proposed merger however, the Court will have to face the important flow of
new applications brought before the Chamber and it will almost certainly have
to adapt its working methods.
78.
As to the proposed merger and in order to cope with the
important increase of cases brought before it:
·
The Court will have to meet regularly and its sessions
will have to be much longer. Moreover, in a not too distant future, the Court
should expect to be in permanent session.
·
The Court should consider the possibility of dealing
with some of the cases in panels rather than in plenary in order to speed up
proceedings; the possibility of a panel referring the case to the plenary where
important issues are raised should be provided for. The possibility of
appealing a panel judgement to the Plenary should be excluded.
·
The Court should institute one or more committees,
composed of 3 or 4 members empowered to dismiss (by unanimous decision) cases
that are clearly inadmissible or do not have any prospect of success. The
committees’ decisions should not be subject to appeal.
·
The Court should be empowered to order other BH
authorities to undertake investigations for the purpose of the proceedings
before it, where necessary. Although the Ombudsperson is the institution
entrusted with this task under Annex 6, it may be advisable, having regard to
the re-orientation of the Ombudsperson’s activities (see the above mentioned
Venice Commission proposal), to entrust this task to the proposed Office of the
Prosecutor of the Court of Bosnia and Herzegovina, were it to be created (see
information document Appendix 8) or other executive authorities.
·
The possibility of amicus curiae submissions
should be provided for.
·
The Court should consider setting rules for dealing
with particular cases in priority.
Other administrative practices of the Chamber,
such as the use of forms, might help the Court and its Registry to cope with
the influx of appeals after the merger.
11.
The Court’s capacity to adapt its working methods to an
important increase of work will however mostly depend on its human and
financial resources. In its proposal, the Venice Commission, stated that
"the Constitutional Court suffers from a tremendous lack of funding".
The present report considers this problem in the following paragraphs.
Human resources
12.
The capacity and experience of members of the Chamber in
dealing with human rights cases is given. Therefore, when reference is made to
human resources in the following paragraphs only the capacity and experience of
staff members is considered.
13.
The same applies to judges of the Constitutional Court.
14.
The Working Group notes that the Chamber is expected to
terminate its operation by the end of 2002 (see below, paras 107 ff)) ; the
tenure of the Constitutional Court judges will come to an end in May 2002 and,
as matters now stand, will not be renewable (Article VI, 1 c) of the
Constitution). Consequently, there is a risk that experience and expertise in
human rights litigation acquired since the establishment of the two
institutions may be lost. Special care should be taken to avoid that. The
possibility should therefore be considered of appointing to the Constitutional
Court experienced members, especially national members, of the Human Rights Chamber
after May 2002. Similarly, if a procedure for amending Article VI of the
Constitution is envisaged, consideration might be given to revising the
provision whereby the initially appointed judges of the Constitutional Court
cannot be re-appointed. This would enable the competent authorities (national
or other) to appoint to the new Constitutional Court experienced judges
already serving in this court and further ensure continuity after the end of
the 5 year period.
15.
The Human Rights Chamber’s Secretariat is at present comprised
of 34 staff members of which 6 are internationals. The Secretariat includes the
Registrar, the Deputy Registrar and 9 other lawyers; the Executive Officer, a
Financial Officers, 9 interpreters and translators, 2 file managers, assistants
and other administrative staff. The Chamber’s Registrar, 4 members of the legal
staff and the executive officer are non-BiH nationals. Most of the staff are
based in Sarajevo. 9 of the Chamber’s staff members including 2 lawyers are
based in the Chamber’s office in Banja Luka. A list of members of the Chamber’s
staff, the Organisational Chart of the Chamber and the "Staff Rules"
appear in Appendix 6.
16.
The Registrar of the Chamber is a legal secretary of the
European Court of Human Rights seconded to the Chamber. He/she is responsible
for managing the case work of the Chamber, supervising the work of the lawyers,
preparing the Chamber’s sessions and performing any other legal work that may
need doing. The Registrar’s responsibilities include the drafting of legal
memoranda and draft decisions. Because of his/her important legal tasks, the
Registrar is (and has to be) a lawyer with significant experience in the field
of judicial protection of Human Rights under the ECHR.
17.
The Constitutional Court’s Registry has 21 staff members.
These include the acting Secretary General, 6 local legal advisers and 2
interpreters/translators. The Secretary General, who is a BiH national, is
presently seconded by the Office of the High Representative. The 6 legal
advisers, BiH nationals also, are officials of the former Constitutional Court
of the Republic of Bosnia and Herzegovina (see Appendix 7).
18.
The Court’s Registry includes 3 international legal advisers
of which one is put at the Court’s disposal by the Phare assistance programme
of the European Union, the two others being remunerated by means of the
contributions made to the Court by the Austrian and the German Government. It
is expected that the Phare programme will finance staffing by another 2 lawyers
(1 national and 1 international) and 3 interpreters/translators in 2000.
19.
It follows from the above that the Court’s staff is not
dramatically less numerous than the Chamber’s. It is however obvious that the
court’s staff has not the required number of experienced human rights lawyers
and administrative staff (including file management assistants and translators)
to face the expected increase of cases after the suggested merger. In this
respect it should be noted that most of the Court’s legal advisers (actually,
all local lawyers of the Court) are not human rights lawyers but rather
specialists of public and constitutional law of the former SFRY and SRBiH.
A re-organisation of the court’s staff combined with internal training in ECHR
law and drafting will be necessary.
Financial resources
20.
The Human Rights Chamber has faced serious difficulties in
securing adequate funding in a timely manner. Although Annex 6 provides that
the Chamber will be financed by Bosnia and Herzegovina, the international
community has recognised that this goal is not achievable. The result is that
the Chamber is primarily financed by voluntary contributions from foreign
Governments and international organisations. It is to be noted that Bosnia and
Herzegovina has contributed to the Chamber’s funding already since 1997, but
its contribution has so far not exceeded 8% of the funds received (see
Appendix).
21.
The uncertainty as to the future of the Chamber after December
2000 causes further funding difficulties, donor governments being reluctant to
commit funds for an institution likely to disappear.
22.
The Chamber’s draft budget for 2000 amounts to 4,182,711 KM.
The costs concerning the (international and national) members of the Chamber
(including salaries and travel expenses and other allowances) amount to
1,681,254. It is noted that international members’ retainers are higher than
national members’ salaries. Expenses concerning the international staff
(including salaries, subsistence allowances and accommodation costs) amount to
550,200 KM. Most of the international staff are not paid directly from
the Chamber’s budget but rather they are paid by individual Governments through
secondments. The Chamber includes these items in its budget in the event that
Governments discontinue funding secondments. Expenses concerning all national
staff amount to 907,080 KM. In an external audit report of July 1999, it was
noted that "the level of salaries granted by the Chamber is far above
national standards of Bosnia and Herzegovina. Yet they correspond more or less
to the salaries granted by other international organisations located in
Sarajevo". It should be noted that approximately 35% of the Chamber’s
budget for 2000 was paid by May 2000.
23.
The Constitutional Court’s financial situation is not at all
secure and in any case cannot be regarded as sufficiently stable to allow the
Court to deal effectively with an increasing number of cases. The Court is in
principle financed by Bosnia and Herzegovina. The appropriation for the
Constitutional Court in the State’s budget in 1998 was of KM 700.000,- and in
1999 of KM1,000,000.-. It is however stressed that no more than 60% of these
amounts were paid.
24.
The Court’s draft budget for 2000 totals for an amount of KM
1,300,000.-which is far lower than the Chamber’s draft budget. Apparently, the
BH budget for 2000 allocates KM 1,203.900 to the Constitutional Court.
25.
Until now a substantial part of the Court’s budget, like the
Chamber’s, depends on contributions by foreign Governments and international
organisations; the Phare programme has made a voluntary contribution of
approximately KM 1,000,000 (40% of which was used for the salaries and other
allowances of internationals seconded to the Court ). It is expected that the
Phare programme could make another voluntary contribution of KM 1,200,000 in
2000. Contributions have also been made by the French, German and Swedish
Governments. Other Governments have declared their intention to make
contributions; but no payments had been effected by the end of 1999.
26.
National and international judges of the Constitutional Court
receive the same salaries (international judges are however exempted from
taxation). Salaries of Constitutional Court judges are significantly lower than
the corresponding salaries of national members of the Chamber. Also salaries of
legal and linguistic staff of the Court are less than those of the
corresponding Chamber staff.
27.
The Court has in the past had difficulties in meeting the
costs of its elementary functioning (including telephone and electricity
bills). Although the situation has improved, it is not yet satisfactory (in
December 1999, staff salaries of October had not yet been paid). Financial
independence of the Court is still far away.
Conclusion
28.
In view of the above, the working group concludes that the
present human and financial resources of the Court are manifestly insufficient
to ensure the effective handling of the case load of human rights cases which
may be expected after the suggested transfer of competences. What is needed is
therefore a merger of both human and financial resources of the institutions
together with changes in working methods and training of local legal staff.
III Proposal for a merger scheme
29.
The merger can be carried out in two distinct phases, as
follows: During the first phase, a formalised co-operation shall be instituted
between the Constitutional Court and the Human Rights Chamber with a view to
preparing the judges and the staff of both institutions for the merger. The
second phase will be a transitional period, during which the Chamber shall
cease to receive new cases but will continue to discharge its backlog. During
this phase all new cases shall be forwarded to the Constitutional Court. The
transitional period shall start after the ratification of the European
Convention on human rights by Bosnia and Herzegovina and acceptance of the
jurisdiction of the European Court of human rights in cases concerning Bosnia
and Herzegovina and after the entry into force of the Constitutional Law on the
Constitutional Court. The transfer will be concluded when the Chamber shall
definitely end its operation.
Formalised
co-operation
30.
The formalised co-operation should start already now. During
this phase the revision of the Constitutional Court’s Rules of Procedure should
be undertaken, as well as drafting of the relevant merger legislation.
31.
The Constitutional Court’s Rules of Procedure should provide
for the possibility of dealing with some of the cases in panels rather than in
plenary in order to speed up proceedings; the possibility of a panel referring
the case to the plenary where important issues are raised should be provided
for. The possibility of appealing a panel judgement to the Plenary should be
excluded. Moreover the institution of one or more committees, composed of 3 or
4 members empowered to dismiss (by unanimous decision) cases that are clearly
inadmissible or do not have any prospect of success should be provided for. The
committees’ decisions should not be subject to appeal. It would be desirable
that the Court’s Rules of Procedure include rules for dealing with particular
cases in priority and rules on amicus curiae submissions.
32.
In this phase, co-operation of legal and administrative staff
of both institutions shall begin together with training of legal and
administrative staff in the law, case-law and legal and administrative
practices of both institutions.
33.
There will be many procedures to work out during this
phase including harmonising the legal and administrative work of the staff,
which will entail an enormous effort in itself. In addition to working out
proposals for harmonising the salaries of the staff of the two institutions it
will be necessary to deal with many other issues such as compatibility of
computer systems, case management systems etc. It will probably be necessary to
obtain the services of information technology experts.
34.
The judicial mechanism created by Annex 6 should remain
unchanged in this phase. The possibility of "forum shopping", whereby
persons claiming that their human rights are violated will be able to choose
between lodging an application with the Chamber or appealing to the
Constitutional Court, which results from the overlapping of competences of the
two judicial institutions is unavoidable as long as the Chamber and the Court
both receive new cases.
Transitional
period
35.
In the second phase, the Human Rights competence ratione
temporis shall cease. The ratification of the ECHR by Bosnia and
Herzegovina and the entry into force of the Constitutional Law on the
Constitutional Court are both necessary conditions for the proposed merger and
for the beginning of the transitional period. Ideally, the ratification of
ECHR and the adoption of the Constitutional Law should coincide and the
Working Group has proceeded on this assumption. In any case, the two events
should be as close as possible to each other in time. Although the drafting and
passing of the suggested Constitutional Law may be a lengthy procedure, the
Working Group finds that the entry into force of the Constitutional Law should
be no later than June 2002.
36.
The Constitutional law on the Constitutional Court of Bosnia
and Herzegovina envisaged here should be adopted by the Parliamentary Assembly
of Bosnia and Herzegovina. This law should regulate the termination of the
Chamber’s operation, the appointment of judges to the Constitutional Court (as
required by Article VI para 1 (d) of the Constitution) and some aspects of
admissibility of appeals to the Constitutional Court (exhaustion of other
effective remedies and time-limits for appeals, the Court’s power to undertake
investigations for the purposes of the proceedings before it) as well as
several aspects of the Court’s relations with other State and entity
institutions, such as
·
the Constitutional Court’s power to order provisional
measures including positive action and the obligation to abide by the
Constitutional Court’s orders on provisional measures;
·
individual (disciplinary or criminal) liability for non
compliance with the Court’s orders and judgements;
·
co-operation with other national authorities, including
the Prosecutor of the State Court of Bosnia and Herzegovina and the Ombudsman
of Bosnia and Herzegovina;
·
the responsibility of Bosnia and Herzegovina to ensure
adequate funding independence.
The Constitutional Law shall give an
authoritative interpretation of the Court’s appellate jurisdiction under
Article VI, 3 (b) of the Constitution to comprise appeals in cases where no
judgement from another court can be obtained.
The Constitutional Law will effect the
"transfer of responsibility for the continuing operation of the Human
Rights Commission to the authorities of Bosnia and Herzegovina", as laid
down in Article XIV of Annex 6.
11.
Applications concerning facts, acts or decisions post-dating
the date of ratification and of entry into force of the Constitutional law
shall be automatically forwarded to the Constitutional Court.
12.
The Chamber should finish dealing with all the cases pending
before it within a fixed time limit after the expiration of which it shall
definitely cease its operations. Although it is difficult to predict when this
could occur, the following indication is given:
13.
More than 4.500 cases were pending before the Chamber by the
end of May 2000 and it is expected that the number of pending cases will be
higher by the end of this year. Many of the currently pending cases (up to
2.000) belong to series of similar (or identical) cases: these concern JNA
apartments, abandoned property, frozen bank accounts or pension rights. Even
the most optimistic assessment of the Chamber’s situation (based on its present
resources and workload) leads to the conclusion that, if the ratification of
ECHR and the adoption of the Constitutional Law were to take place at the
beginning of 2001, the Chamber would not be able to discharge all these cases
it has before June 2002 at the earliest.
14.
In any case, there should be a set period for the Chamber to
discharge its backlog. The Working Group would suggest setting end of 2002 as
final date of the Chamber’s operation. Cases still pending before the Chamber
as of the end of that period should be transferred to the Court.
15.
In order to avoid loss of experience and to secure a measure
of continuity after the end of the initial 5 year period of the Constitutional
Court (May 2002) competent authorities might consider appointing members of the
Chamber to the Constitutional Court. Similarly, it would be worth considering
amending Article VI of the Constitution to allow for the re-appointment
of some of the serving judges of the Constitutional Court.
16.
As of the date on which the ECHR has been ratified and the Law
on the Constitutional Court is in force, a pooling of the Chamber’s and
Court’s Secretariat and resources should start.
17.
All Chamber and Court staff should be placed under the
authority of a Common Registrar and a Common Director General.
18.
During the transitional period, the Registrar should be an
international seconded by the European Court of Human Rights. He/she will be
responsible for case management and the work of the lawyers of both
institutions. It will be the responsibility of the Registrar to ensure that
both institutions have the legal resources necessary to conduct their
respective work. He/she will report to the Presidents of the Chamber and the
Court. The Registrar’s task will be to organise the progressive redirection of
legal staff from Chamber work to Constitutional Court work as the Chamber’s
workload decreases. It will be for the Registrar to decide the various stages
of this operation.
19.
We would consider it necessary that the Registrar continue to
be seconded by the European Court of Human Rights. The Registrar’s expertise is
essential for the transfer of experience to and training of local lawyers. As
long as the two institutions function with a merged Registry, his/her authority
will be instrumental in the smooth running of the Registry. The international
Registrar’s functions will come to end when the Chamber ceases to be.
20.
Similarly, during the same transitional period, one Director
General would be responsible overall for the administration of both
institutions. The Director General will report to the Presidents of the Chamber
and the Court. His/her task will be to organise a progressive reallocation of
all human and material resources from the Chamber to the Constitutional Court.
It will be for the Director General to decide the various stages of this
operation. The Working Group would recommend that the Director General be an
international appointed by the Registrar of the European Court of Human Rights.
He/she should be assisted by one or two national administrators.
21.
During the transitional period the Chamber and the
Constitutional Court shall retain their respective staff and separate financial
resources.
22.
In order to maintain continuity the staff, especially national
staff, should be encouraged to stay on. This applies to experienced non-legal
staff (secretariat, translation, interpretation, administrative support and
other support) as well as to legal staff. The legal position of the staff should
also be settled in an appropriate way. The possibility of the Chamber’s
national staff to retain a special salary position perhaps for a certain
additional period should be seriously considered.
Last
phase: Termination of the Chamber operation
23.
The transitional period shall come to an end not later than
end of 2002. At this time the Chamber shall definitely cease its operation and
all remaining cases will be transferred to the Court.
24.
All remaining financial resources and assets of the Chamber
shall be transferred to the Court.
25.
The international Registrar and Director General shall be
automatically dismissed. In addition, the staff of both institutions shall be
automatically dismissed and re-appointed in accordance with the procedures and
criteria provided for in the Law on the Constitutional Court.
26.
Bosnia and Herzegovina shall bear the sole responsibility for
the operation of the Constitutional Court after the end of the transitional
period.
Recapitulation
1.
The working group finds that the transfer of functions
of the Human Rights Chamber to the Constitutional Court of Bosnia and
Herzegovina can essentially be achieved within the constitutional provisions
governing the Constitutional Court as already in force, without diminishing the
protection of human rights granted under Dayton Peace Agreement.
2.
The transfer of functions should only take place after
ratification of ECHR by Bosnia and Herzegovina and after a Constitutional Law
on the Constitutional Court regulating the merger procedure, the termination of
the Chamber’s operations and some aspects of the Constitutional Court’s
functioning and competence is passed by the Parliamentary Assembly of Bosnia
and Herzegovina.
3.
Minor amendments to Article VI of the Constitution may
clarify or improve some aspects of the Constitutional Court’s functioning and
competence, in particular as regards its composition after the expiry of the
mandate of its initial members, its relations with the Ombudsman (Ombudsperson)
of Bosnia and Herzegovina and its appellate jurisdiction and. However, these
amendments need not be regarded as a conditio sine qua non for
the proposed merger.
4.
The transfer could be carried out in two distinct
phases as described in Chapter 3 of this report. The final transfer should
coincide with a merger of the two institutions’ human and financial resources.
5.
Bosnia and Herzegovina should bear sole responsibility
for the operation of the Constitutional court after the merger procedure.
Time schedule
First phase : Formalised co-operation
From the present until ratification of ECHR and entry into
force of the Constitutional Law on the Constitutional Court BiH
Formalised
co-operation between the Constitutional Court and the Human Rights
Chamber with a view to transferring the competences of the Chamber to the
Court. Revision of the Court’s Rules of Procedure. Drafting of the
Constitutional Law on the Constitutional Court of BiH. Harmonisation of working
methods in the registries. Training courses for the staff of the two
institutions.
Second phase : Transitional period
From ratification of the ECHR and entry into force of the Law on the
Constitutional Court to December 2002
End
of the Chamber’s competence ratione temporis. All cases outsidethe
Chamber’s ratione temporis competence are forwarded to the Constitutional
Court. Chamber to clear up its backlog. Chamber staff to be progressively
redirected to work on Constitutional Court cases as Chamber’s backlog gradually
disappears. Operation of the common Registrar and Director General.
Third phase: Termination of the Human Rights
Chamber operation
From December 2002 onwards
Extinction
of the Human Rights Chamber; transfer of all cases still pending before it to
the Constitutional Court. Transfer of all the Chamber’s remaining financial
resources and assets to the Court. Automatic dismissal and re-appointment of
the staff of the two institutions. Operation of the new Constitutional Court
under the sole responsibility of the State of Bosnia and Herzegovina.
