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Strasbourg, 23 October 2001
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CDL-INF (2001) 20
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PROPOSAL
FOR A LAW ON THE MERGER
OF THE HUMAN RIGHTS CHAMBER
AND THE CONSTITUTIONAL COURT
OF BOSNIA AND HERZEGOVINA
Adopted by the Venice Commission
At its 48th Plenary Meeting,
(Venice, 19-20 October 2001)
-
to
the constitutional obligation of Bosnia and Herzegovina under Article II.1 of
the Constitution to ensure the highest level of internationally recognised human rights and fundamental freedoms, as well
as to ensure that any amendment of the Constitution does not eliminate or
diminish these rights and freedoms;
-
to
Article II.1 of the Constitution of Bosnia and Herzegovina read together with
Article XIV of the Annex 6 of the Dayton Peace Agreement and to the Agreement
of the 10th of November 2000 between the Parties to Annex 6;
Considering that the possibility
offered to victims of human rights violations directly to seek judicial protection and obtain redress of
those violations from a highest judicial authority at the level of the State concerned is the cornerstone of
international human rights protection;
Decides as follows:
Article 1
The Human Rights Chamber established
as part of the Commission on Human Rights provided for in Annex 6 to the Dayton
Peace Agreement shall be merged
with the Constitutional Court of Bosnia and Herzegovina in accordance with the
following provisions:
Article 2
[Six months after / On] the date
of entry into force of the European Convention on Human Rights and Fundamental
Freedoms for Bosnia and Herzegovina, the Human Rights Chamber’s competence to
receive applications, as provided for in Article VIII of Annex 6 to the Dayton
Peace Agreement, shall cease. [The Constitutional Court is invested with the same powers and
competences as the Human Rights Chamber for Bosnia and Herzegovina under Annex
6 of the Dayton Peace Agreement.]
Article 3
The Human Rights Chamber shall
continue to deal with all cases which are pending before it on the date
mentioned in Article 2. All cases introduced to the Chamber after the said date
shall be deemed to have been introduced
before the Constitutional Court of Bosnia and Herzegovina and will be dealt
with by the latter in accordance with Article VI of the Constitution, the
Constitutional Court’s Rules of Procedure and other relevant legislation on the
Constitutional Court.
Article 4'
The Human Rights Chamber shall
terminate its operation 18 months after the date of ratification of the
European Convention on Human Rights, but in any case not before 31 December
2003. All cases pending before the Chamber at the time of the termination of
its operation shall be transferred to the Constitutional Court and will be
dealt with by the latter in accordance with Article VI of the Constitution, the
Constitutional Court’s Rules of Procedure and other relevant legislation on the
Constitutional Court.
Article 5
In the framework of proceedings before the Constitutional Court, the
Court may, on its own initiative or upon request of the parties or of the
Ombudsman of Bosnia and Herzegovina, invite the latter to submit observations
and conclusions concerning a case pending before it.
Article 6
Any appeal under Article VI.3.b. of the Constitution must be lodged
within six months from the date on which the decision complained of becomes
final and enforceable or, where appropriate, within six months from the date on
which the appellant/applicant is notified of such decision, or, in the absence
of an available effective remedy against the act, decision or omission
complained of, within six months from the date on which the alleged
violation has occurred / the date of the alleged violation.
Article 7
In the framework of
proceedings relating to alleged human rights violations under Article VI.3.b,
the Constitutional Court may, when it finds that a violation has occurred,
order any competent authority to refrain from particular action or to take
specific action with a view to redressing the violation found.
The
Court shall also be competent to take cognisance of any claims for compensation
relating to costs, pecuniary and non-pecuniary damage and interest. The decision
may state the amount of the compensation to be paid to the victim of the
violation, and interest if appropriate, and specify the authority responsible
for payment.
In the framework of proceedings relating to
alleged human rights violations under Article VI.3.b and in order to avert
potential serious and irreversible damage to fundamental rights and freedoms,
the Court may order provisional measures. These may consist of injunctions to
any authority to refrain from particular
action or to take specific action. Orders for provisional measures may be
issued without oral proceedings. Their validity shall cease, at the latest,
when the Court’s final decision on the case is issued.
Article 9
The Chamber and the
Court shall retain their respective staffs and separate financial
resources until six months before the termination of the Chamber’s operation.
On that date the Chamber’s staff and material resources and assets, with
the exception of the Executive Officer and other international staff and
financial resources necessary for the functioning of the Chamber until the
termination of its operation, are transferred to the Constitutional Court.
Article 10
The funding of the Constitutional Court of Bosnia and Herzegovina shall
be provided for in the State budget and shall ensure the independent and
comprehensive exercise of the Court’s constitutional judicial tasks. The State
budget shall annually allocate in a separate item funds needed to enable
activity of the Constitutional Court, that shall be managed by the
Constitutional court autonomously.
Article 11
Following the date referred to in
Article 2, a co-coordinator shall be appointed by the Presidents of the
Constitutional Court and the Human Rights Chamber jointly, after consultation with the High Representative, with a view to
advising the Presidents of both institutions on all legal and material
issues relating to the merger operation.
EXPLANATORY NOTE
General comment
Introduction
- 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).
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 leading to the 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, when Bosnia and Herzegovina will be subject
to the control mechanisms of this instrument, namely, the European Court of
Human Rights.
- 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. This transfer should take the form of a
“merger” of the (Human Rights) Chamber with the Constitutional Court,
ensuring not only the transfer of competence but also an effective transfer
of expertise, experience, procedural and other capacities and resources.
- At its 42nd
Plenary Meeting (Venice, 31 March – 1st April 2000), the Commission concluded
that the proposed “merger”
should consist of the termination
of the Chamber’s operation and transfer of its competences (and
possibly of its docket), together with its human and financial resources,
to the Court. The proposed merger should not take place before the ratification by Bosnia and Herzegovina
of the ECHR, after which Bosnia and Herzegovina will be subject to
the control mechanisms of this instrument, namely the European Court of
Human Rights. In order to achieve access
to the Court under the same conditions as to the Chamber
in cases of a lack of effective remedies, the Court’s appellate
jurisdiction (Article VI, 3 (b) of the Constitution) could be construed in
such a way as to enable the Court to deal not only with human rights
issues arising out of a judgment but also with similar issues arising out
of the lack of judgment, such as denial of justice. As the case-law
of the Court did not so far contain any indication of a development in
this sense, it was difficult to conclude, at that time, that the
competence of the Chamber to deal with allegations of human rights
violations under Article II para 2 of Annex 6 coincided with the
“appellate jurisdiction” of the Court. The Commission found that Article
VI, 3 (b) of the Constitution should be amended in order to ensure that
the Constitutional Court’s “appellate jurisdiction” comprises appeals
against judgements as well as appeals challenging the lack of judgements (CDL-INF (2000) 8).
- Following
its conclusions above and upon the initiative of the Office of the High
Representative the Venice Commission convened two meetings in Paris in
March 2001 (CDL 2001 (32)) and in Bled, Slovenia, on 10-12 June 2001 (CDL (2001) 62def) with a view to preparing a draft law on the merger. The issue of the merger of the Human Rights Chamber and the Constitutional Court was further discussed with representatives of the Government of
Bosnia and Herzegovina and of the Entities in a meeting held in Sarajevo,
on 11 October 2001.
As to the use of the
term “merger”
- The
Venice Commission considered whether the terms “transfer of competencies”
could possibly be more appropriate to designate the proposed operation.
Although, one could consider that the draft law deals principally with the
issue of transfer of Human Rights Chamber competencies, the term “merger”
has been chosen in order to illustrate the whole mechanism of this
transfer, which includes not only the transfer of competences but also an
effective transfer of expertise, and experience, procedural and other
capacities and resources. Therefore the Commission upholds the use of the
term “merger” rather than transfer considering that this transfer is
achieved by a merger rather then by a transfer in a stricto sensu sense.
As to the proposed
merger and its timing
- The
Commission has repeatedly indicated the reasons that advocate for the
proposed merger (see above).
- It
is however aware that other solutions may be found to accommodate the
existence of two highest judicial authorities in Bosnia and Herzegovina.
These include the continuation of the Chamber as a permanent judicial
institution of Bosnia and Herzegovina together with the Constitutional
Court and there may be good reasons for such an approach both from a legal
point of view and
from the view of judicial policy. In fact, a specialised human rights
court can be regarded as a powerful domestic remedy for human rights cases
and simultaneously as an effective filter for human rights cases that are
likely to be brought to the European Court of Human Rights after
ratification of the European Convention of Human Rights by Bosnia and
Herzegovina. Moreover, despite the partial overlapping of competencies and
the risk of conflicting jurisprudence, the Court and the Chamber seem to
have reached a certain equilibrium in the distribution of competencies and
for the time being no appeals from one institution to the other seem
admissible.
- This
equilibrium may however be disturbed after the accession of Bosnia and
Herzegovina to the Council of Europe and the ratification of the European
Convention of Human Rights, which are the working hypotheses of the merger
proposal.
- Indeed,
it will no longer be possible to consider the (Human Rights) Chamber as a
quasi-international judicial institution embodied in the judicial system
of Bosnia and Herzegovina. The Chamber will have to be regarded as a
“court” in Bosnia and Herzegovina, within the meaning of Article 6. 3 (b)
of the Constitution and, consequently, appeals from the Chamber to the
Constitutional Court will be possible.
- Alternatively,
it might be possible for the (Human Rights) Chamber to be regarded as an
international institution created by the Dayton Peace Agreement (an
international treaty). This will
avoid appeals from the Chamber to the Constitutional Court but may also
exclude individual applications to the European Court of Human Rights in
Strasbourg, as this Court cannot deal with matters that have been
submitted to other procedures of international investigation or settlement
(Article 27 ECHR). Of course, such a result would be mostly unwarranted.
- Finally,
it would be still possible to envisage a continuation of the present
situation with both institutions at the top of the judicial pyramid of
Bosnia and Herzegovina. However, this would also prolong the existing
“forum shopping”
situation and will create a definite risk of conflicting jurisprudence with
unpredictable legal but also political consequences. If the two
institutions were to be maintained, it would be necessary to amend the
Constitution of Bosnia and Herzegovina, and in particular Article VI, with
a view to entrusting direct human rights litigation – and possibly also
competence to decide issues upon referral by other courts - exclusively to
the Human Rights Chamber. It should also be ensured that the permanent
Human Rights Chamber, if it is to be regarded as an effective remedy for
human rights violations, should not only decide on whether there has been
a breach of human rights by the State or an Entity,
but should have an “appellate jurisdiction” and thus be empowered to quash
and annul any acts (possibly also normative acts) or decisions or
judgments that are in breach of human rights and freedoms guaranteed in
Bosnia and Herzegovina.
- The
Commission is of course at the disposal of the authorities of Bosnia and
Herzegovina and the Office of the High Representative to consider further
any of the above possible options. It is however convinced that the
proposed merger is a more adequate response to the concerns and
problems that can arise after the ratification of the European Convention
on Human Rights by Bosnia and Herzegovina.
- Moreover,
the Commission strongly recommends that the decision as to the
future of the Human Rights Chamber, be it its merger with the
Constitutional Court or any other of the above options, be taken before
the ratification of the European Convention of Human Rights.
- Finally,
the argument has been raised in the discussions on the merger that the
judicial system of Bosnia and Herzegovina may not be in a position to
secure an effective domestic protection of human rights should the Human
Rights Chamber cease to operate in its present form. The Commission should
stress that it has no competence to assess the functioning and the
effectiveness of the judicial system of Bosnia and Herzegovina and its
entities as a whole. The Commission has worked on the hypothesis of Bosnia
and Herzegovina acceding to the Council of Europe and becoming a party to
the European Convention of Human rights. This presupposes that Bosnia and
Herzegovina is capable to respond to the requirements of the
Statute of the Council of Europe, to respect the rights and freedoms
enshrined in the Convention and abide by the judgments of the European
Court of Human Rights. The proposal on the merger is made on this
assumption.
As to the normative
level of the proposed merger
- The
question whether the proposed merger requires a constitutional amendment,
or a law, or a mere amendment of the Rules of procedure of the Court has
been raised.
- The
view was expressed that the Constitutional Court, is already
constitutionally able to take upon itself all competences of the Chamber
of Human Rights without any amendment of the Constitution or adoption of a
law on the merger.
- In
the Commission’s view, the necessity of amending the rules of procedure of
the Court in order to allow the Court to cope with an increased volume of
Human Rights cases should, of course, be stressed. However, amending the
Court’s Rules of procedure seems not sufficient. The Commission would
clearly prefer defining in a specific norm the role of the Constitutional
Court in the protection of Human Rights in Bosnia and Herzegovina after
the ratification of the ECHR and the cessation of activities of the Human
Rights Chamber.
- The
Commission would have no objection to see the merger provided for by a
constitutional amendment, if a
favourable political
climate and conditions are present. A constitutional amendment would have
the advantage of clarifying in a most appropriate way the competences of
the Constitutional Court in human rights matters. Such a constitutional
amendment should contain in substance the provisions currently set out in
Articles 1 to 4 of the draft.
- Nonetheless,
the Commission considers that there exists already a constitutional basis
for the merger that allows for this operation without necessarily going
through a constitutional amendment. Actually, Article II.1 of the
Constitution enshrines the obligation of Bosnia and Herzegovina to ensure
the highest level of human rights and refers in this respect to the Human
Rights Commission established under Annex 6. Article XIV of Annex 6,
dealing with the fate of the Human Rights Commission after the end of a
five year period, refers in turn to a transfer of responsibility for the
operation of the Commission to the institutions of Bosnia and Herzegovina.
Therefore, Article II.1 of the Constitution, combined with Article XIV of
Annex 6 permits that the role, competence and powers of the Human Rights
Commission be taken up by institutions of Bosnia and Herzegovina. However,
this constitutional permission does not suffice for the merger operation
but requires further legislative action to determine the institution(s) in
Bosnia and Herzegovina that are to take up the role, tasks and powers of
the Human Rights Commission, the time of the transfer of competencies, the
means by which the transfer of responsibilities will be realised. The law on the merger aims at responding
to the need for such a legislative action.
As to the inclusion of procedural regulations
in the draft law of the merger:
- The
Commission is fully aware that the proposed draft deals in Articles 7, 8,
9 with procedural issues that could be considered as already stipulated or
to be stipulated in the Rules of procedure of the Constitutional Court.
Nevertheless, the Commission considers it essential to include these
provisions in the Law on the merger in order to guarantee the highest
level of protection. These provisions, dealing essentially with the
fundamental right of access to the Constitutional Court should preferably
be foreseen on the level of the law of the merger rather than on the level
of Rules of Procedure.
- In
this respect, the Commission recalls that all European Constitutional
Courts or bodies of equivalent jurisdiction dealing with human rights
issues see their activities and procedures mainly regulated in a specific
law; which is often only completed by internal rules of procedure adopted
within the Court. The main reason for dealing with procedural aspects in a
law is the need to guarantee the legal certainty of the use of legal
avenues in the field of judicial protection of human rights.
As
to the transfer of capacities
- The
Commission considers that the success of the merger will depend on the
human and financial resources dedicated to the Constitutional Court in
order to deal with the case load that might follow from the merger. The draft law provides for the transfer
of staff and material resources from the Chamber to the Court. The
Commission would urge the competent authorities to allocate to the
Constitutional Court sufficient financial and human resources for the
fulfilment of its tasks.
- Furthermore
– and in order to ensure a certain degree of continuity - the Commission
recommends that the competent authorities consider the possibility of
appointing former judges of the Human Rights Chamber to sit as judges in
the Constitutional Court.
*
* *
Proposals for further normative action
- The
Commission further considers that the Rules of Procedure of the
Constitutional Court of Bosnia and Herzegovina should be amended where
necessary in order to secure the following:
- Procedural requirements
In the event that no
appealable judicial decision is available, it shall be sufficient for the
applicant/appellant to show that no such decision could be obtained.
- Sessions of the Court
The Court shall be permanently in
session. The duration of judicial vacations shall be determined by the Court
with due regard to the needs of its business.
- Possibility for the Court to decide
cases in panels
The Court may consider and decide
cases brought before it under VI.3.b. in chambers composed of [five (?)]
judges. A chamber may at any time decide to refer a case to the Plenary Court.
The Court may set up three-member
panels that can decide unanimously and in summary proceedings that an
appeal/application under VI.3.b is clearly inadmissible or manifestly
ill-founded.
The questions falling within the
competence of the Court under Article VI.3.a and 3.c. shall be considered and
decided by the Plenary Court.
- The pre-hearing investigation
The Court shall have the widest
possible powers of inquiry and investigation. It may, in particular:
1.
correspond
directly with any state authority and other public authority of the State or
the Entities, in particular the Ombudsman of Bosnia and Herzegovina and the
State Prosecutor;
2.
hear
parties and request them and any public authorities to communicate to it all
documents and information concerning the case;
3.
take
evidence from any person whose testimony it deems useful;
4.
establish
facts on site;
5.
appoint
experts;
The Court may, by means of an order,
delegate to the Judge rapporteur specific powers of inquiry and investigation,
which it shall determine.
- Amicus Curiae
An amicus curiae brief that
brings to the attention of the Court relevant matter not yet brought to its
attention by the parties may be accepted by the Court and admitted to the case
file.
The amicus
curiae brief shall be submitted in writing [accompanied by the written consent
of all parties] within the time allowed for filing a brief. The amicus curiae brief
shall identify the party supported, if any. The amicus curiae may be invited to
participate in the oral proceedings, in accordance with the Rules of Procedure
of the Constitutional Court.
- Rule on dealing with some cases as
a priority
The
Court shall deal with appeals/applications in the order in which they become
ready for examination. The Court may in view of particular circumstances,
decide to hear a case as a matter of priority.
- The
Commission considered also the possibility of including an Article that
would allow the Constitutional Court to impose fines and penalties. It
finds that this issue should be regulated at the level of a law, but not
necessarily in the Law on the merger. The possibility of imposing fines
and penalties should be included in a legal norm, that could read as
follow:
“The Constitutional Court has the
power to impose penalties or fines when:
1.
Officials
and other persons refuse to abide by or unduly delay or otherwise hinder or
prevent the execution of provisional measures and decisions of the Court;
2.
Officials
and other persons without valid reasons, fail to comply with requests and
orders of the Court, in particular with any order to present documents or other
material, to approve documents or texts of acts, or to carry out
investigations;
3.
Without
valid reasons, a witness or expert fails to attend, refuses to attend, or does
not inform of his/her incapacity to appear before the Court;
4.
An
expert, without valid reasons, refuses or delays to provide the findings;
5.
An
applicant/appellant deliberately lodges a frivolous application/appeal
Orders and judgements of the Constitutional Court imposing financial
penalties or fines shall be enforceable.
The above provisions do not exclude
criminal liability of possible offenders pursuant to the criminal legislation
applicable.”
- It
may be advisable to consider the relations between the Constitutional
Court and the State Prosecutor of Bosnia and Herzegovina, in particular as
regards the Court’s power to entrust the Prosecutor with factual
investigation tasks.
Specific comments
27. Article 2: It is necessary to have a
clear date on which the competence of the Human Rights Chamber to receive
applications should cease. This should be the date of ratification of ECHR by
Bosnia and Herzegovina although the possibility of having a later date (six
months after the ratification of ECHR) is also retained, as an alternative. A
proposal that the Chamber should cease to receive applications alleging that
violations of Human Rights have taken place after the date of ratification
(termination of the Chamber’s ratione temporis competence) was
abandoned. It was felt that the determination of the time when the alleged
violation occurred may raise delicate issues of fact and law and would oblige
the Chamber to deal with an considerable number of cases just to decide whether
it is competent or not. For reasons of clarity, the proposal was retained that
after a specific date (date of ratification of ECHR or six months after) the
Chamber will no longer be competent to register any case and all cases
addressed to the Chamber will be channeled to the Constitutional Court.
28. In fine of Article 2: This provision
is a response to the finding of the Venice Commission's Working Group on the
merger that the Constitutional Court’s competence to deal with human rights
violations in the absence of any judgment by another court in Bosnia and
Herzegovina and where no effective remedies are available was questionable. The
Venice Commission Working Group on the Merger had raised this issue in the
following terms:
“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. 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.”
(CDL (2000) 47 fin)
29. The Commission notes with particular attention that since the above Working
Group's Report, the Constitutional Court has decided cases under Article VI 3
b) of the Constitution adopting an extensive interpretation of this provision.
In its judgment in the case U 23/00 (case Ms MV) it held the following:
“Under Article VI.3 (b) of the
Constitution of Bosnia and Herzegovina, the Constitutional Court shall have
appellate jurisdiction over issues under this Constitution arising out of a
judgment of any other court in Bosnia and Herzegovina. In this context, the
term ”judgment” is to be interpreted extensively. The term includes not only
all kinds of decisions and rulings but also a failure to take a decision where
such failure is claimed to be unconstitutional. In the present case, the
Constitutional Court interprets M. V.’s appeal as challenging the Municipal
Court’s failure to decide on her claim for compensation”.
30. Having regard to the above case-law, the Commission is of the
opinion that the provision of Article 3 has no other effect than reminding the
Constitutional Court’s responsibility to ensure protection of human rights
taking into account (as in the above case U 23/00) the role and powers that the
Constitution in its Article II.1 and Annexe 6 had given to the Human Rights
Commission and Chamber. Any ambiguity whatsoever as to the powers of the
Constitutional Court to examine cases that the Chamber would have been
competent to examine under Annex 6 is thereby definitely lifted.
31. Articles 3 and 4: The Human Rights
Chamber will continue to deal with its docket. It will continue to operate for
18 months after the ratification of ECHR, but in any case until 31 December
2003 (as required by the Agreement to extend Annex 6 to the Dayton Peace
Agreement). After that, all cases will be transferred to the Constitutional
Court.
32. Article 5: regulates the relations
between the Constitutional Court and the Ombudsman of Bosnia and Herzegovina
with a view to allowing the latter to take an active part in proceedings before
the Constitutional Court, where necessary. The provision aims at giving the
Ombudsman locus standi before the Constitutional Court although he/she is not
allowed to initiate proceedings (as is the case under Annexe 6).
33. Articles 6 to 8: These provisions
regulate the procedural aspects of access to the Constitutional Court. They aim
at reproducing the procedural rights of applicants before the Human Rights
Chamber in the form of appellants’ rights before the Constitutional Court (see
also par. 20-21 above).
34. Articles 9 to 11: These provisions
regulate the technical aspects of the merger. The Human Rights Chamber will
keep its separate staff and resources until six months before the termination
of its operation. All staff and resources will then be automatically
transferred to the Constitutional Court. This solution was regarded as easier
to put into practice than the progressive merger suggested in the Working
Group’s Report.
35. However, the Chamber will keep its Executive Officer and other
international staff and financial resources necessary for its functioning until
the termination of its operation.
36. The fact that there is no longer any provision for the progressive
pooling of the Court’s and Chamber’s respective secretariats makes the
proposals for a common Registrar and a common Director General in the Working
Group’s Report (CDL (2000) 47 fin) superfluous. On the other hand, it was felt
that the co-operation between the two institutions should start at a very early
stage and that this could be facilitated by a “co-coordinator” to be appointed
by the Presidents of the two institutions after consultation with the High
Representative. The co-coordinator will have advisory functions as far as legal
and organisational issues of the merger are concerned. He/she will have in
particular to contribute towards building within the Court the necessary
capacities for dealing with a considerable number of individual human rights
cases, transferring experience and working methods from the Chamber to the
Court as appropriate and to assist in the effective managing of the transfer of
cases, of staff, of financial resources and other assets from the Chamber to
the Court. In the participants’
opinion, the co-coordinator should be appointed as soon as possible after the
ratification of ECHR and should remain in office for some time after the termination
of the Chamber’s operation, but no more than six months after that date. This
means that he/she would be appointed for approximately 18 months. However, it
is not necessary for the co-coordinator to be permanently in Sarajevo, although
a permanent presence will be required during the critical merger period. The
co-coordinator should be a lawyer with important working experience in highest
judicial bodies, preferably constitutional courts or equivalent courts that
deal with a considerable number of human rights cases.
37. The proposal to dismiss all staff of the two institutions and to
re-appoint them as appropriate was not retained. Consequently, all staff of the
Chamber shall be automatically transferred to the Court.
38. The question of
harmonising the salaries and other remuneration or
compensation of judges and staff of the two institutions should be addressed
separately.
