EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
amicus curiae opinion
(Proceedings before the European Court
of Human Rights)
ON THE
NATURE OF THE PROCEEDINGS
BEFORE THE HUMAN RIGHTS CHAMBER
AND THE CONSTITUTIONAL
COURT
OF BOSNIA AND
HERZEGOVINA
Adopted by the Commission
at its 63rd plenary session
(Venice, 10-11 June 2005)
On the basis of comments by
Mr Pieter van DIJK (Member, The Netherlands)
Mr
Peter JAMBREK (Member, Slovenia)
Mr
Giorgio MALINVERNI (Member, Switzerland)
Mr Franz MATSCHER (Member, Austria)
I.
Introduction
1.
By a letter dated 11 April 2005 , the European Court of Human Rights
(Second Section) (hereinafter “the European Court”) granted the Venice
Commission leave to make written submissions under Article 36 § 2 of the
Convention in the proceedings pending before it in respect of the case Jelićič
v. Bosnia and Herzegovina.
2.
The Court asked the following questions:
- Are Annexes 4 and 6 to the 1995 General
Framework Agreement for Peace in Bosnia and
Herzegovina unilateral
undertakings given by Bosnia and
Herzegovina or are they
international treaties?
- Were proceedings before the Human Rights
Chamber “domestic” within the meaning of Article 35 § 1 of the Convention
or did they amount to “another international procedure” within the meaning
of Article 35 § 2 b) of the Convention?
- Are proceedings before the Constitutional
Court “domestic” within the meaning of
Article 35 § 1 of the Convention or do they amount to “another
international procedure” within the meaning of Article 35 § 2 b) of the
Convention?
3. A
working group composed of Messrs Van Dijk, Jambrek, Malinverni and Matscher was
accordingly set up. The rapporteurs submitted their comments on these matters
to the Commission at its 63rd Plenary Session (Venice, 10-11 June 2005). The Commission instructed
the Secretariat to prepare a consolidated opinion on the basis of these
comments, and to submit it to the European Court.
II.
Whether Annexes 4 and 6 are unilateral
undertakings or international treaties
4.
The Dayton Peace Accords are composed of the “General Framework
Agreement” (GFA) and the 12 annexes, which supplement it.
5.
The GFA was signed by three sovereign states – the (then) Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia. It is thus subject to international law
pursuant to Article 1 of the Vienna Convention on the Law of Treaties.
6.
Annexes 1A, 2, 3, 6 and 7 were signed by the Republic of Bosnia and Herzegovina and by the two territorial entities making
up the Republic - the Federation of Bosnia and Herzegovina and the Republika Srpska. Annex 4 was
not signed by the parties : declarations on behalf of the Republic of BiH, the Federation of BiH and
the Republika Srpska “approving” the Constitution were attached to it. Annexes
5 and 9 were only signed by the Entities. Annexes 1A and 2 were also “endorsed”
by the Republic of Croatiaand the Federal Republic of Yugoslavia.
Annexes 1B on regional stabilisation and 10 on civilian implementation were
signed by the Republic of BiH,the Entities, the Federal Republic of Yugoslavia
and the Republic of Croatia.
7.
The Federation of Bosnia and Herzegovina and the Republika Srpska not being “states”
from the standpoint of international law, the issue arises, and was raised by
the European Court,
as to whether or not the Annexes to the GFA are subject to the rules of
international law.
8.
The Commission notes that the GFA only contains 11 articles, which
mostly set out the obligation for the three parties thereto to “welcome and
endorse” and to “fully respect and promote fulfilment of the commitments” made
in the annexes; to “agree to and comply fully” with their provisions (Articles
VI, VII and VIII GFA); to “co-operate fully with all entities involved in the
implementation of this peace agreement” (Article IX GFA).
9.
The substance of the commitments is contained in the Annexes: it is therefore
clear, in the opinion of the Venice Commission, that the Parties to the GFA
intended the latter to constitute a framework agreement, and the Annexes to
provide its substance.
10.
The Commission observes that the Constitutional Court of Bosnia and
Herzegovina itself had recourse to the Vienna Convention in order to interpret
the Constitution (Annex 4).
11. In conclusion, the Commission is of the
opinion that the Annexes to the GFA are to be considered an integral part
thereof, so they must be considered as international treaties. Their character
and interpretation are therefore governed
by international law, in particular the Vienna Convention on the Law of
Treaties.
III.
Whether
the proceedings before
the Human Rights Chamber were “domestic” within the meaning of Article 35 § 1
of the Convention or “international” within the meaning of Article 35 § 2 b) of
the Convention
12.
The above conclusion that
the Annexes to the GFA are “international treaties” does not necessarily imply that
the institutions established by these annexes share their international
character. This depends on a number of factors, which will be listed and
examined hereafter.
13.
Some elements seem to indicate that the Chamber was an “international
body”.
14. Firstly, the composition of the
Human Rights Chamber is partly, in fact in the majority, international. Under Article VII (2) of Annex 6, of the
14 members of the Chamber, 4 are appointed by the Federation of Bosnia and Herzegovina, 2 by the
Republika Srpska and 8 by the Committee of Ministers of the Council of Europe.
15. Secondly, the Chamber was not
“domestic” in the ordinary sense of this term. Indeed, the Constitutional Court in this respect stated: “the Chamber is an
institution of a special nature. According to Article II.1 of the Agreement on
Human Rights, the Chamber is one of the two parts of the Commission on Human
Rights for Bosnia and Herzegovina. According to Article XIV of the Agreement
on Human Rights, the Commission on Human Rights will only function in its
present form during a transitional five-year period, unless the Parties to the
Agreement agree otherwise. In the legal terminology of the Agreement on Human
Rights, the Chamber is neither a court nor an institution of Bosnia and Herzegovina. Indeed, Article XIV of the Agreement
specifically refers to the transfer of responsibility to “the institutions of Bosnia and Herzegovina””. The Court added: “It is significant that
the Constitution of Bosnia and Herzegovina refers to the concept of a “court in Bosnia and Herzegovina” not only in Article VI.3 (b) but also in
Article VI.3 (c). The latter provision provides for the jurisdiction of the
Constitutional Court over issues referred by “any court in Bosnia and
Herzegovina” concerning whether a law, on whose validity its decision depends,
is compatible, in particular, with this Constitution or the European Convention
for the Protection of Human Rights and Fundamental Freedoms and its Protocols.
It is quite certain that the authors of this provision did not intend the Human
Rights Chamber to be included among those institutions which should be
competent to refer human rights issues to the Constitutional Court of Bosnia
and Herzegovina for preliminary consideration.””
16.
The Venice Commission itself previously expressed the opinion that the
Chamber was “a quasi-international sui generis body integrated into the
legal order of Bosnia and Herzegovina for a transitional period,
until the effective integration of this State has been achieved and has acceded
to the Council of Europe, ratified the European Convention on Human Rights and
recognised the human rights protection mechanism of the Strasbourg organs”.
The Commission considered therefore that the Human Rights Chamber was not to be
regarded as a “court of Bosnia and
Herzegovina within the meaning of Article VI, para 3 (b) of the Constitution of
Bosnia and Herzegovina.”
17.
The Commission also expressed the view that, pending the accession of Bosnia and Herzegovina to the Council of Europe and the ratification of
the ECHR by it, the Human Rights
Commission
represented “a provisional monitoring
mechanism reproducing the Strasbourg bodies (the European Commission and Court of Human
Rights) in Bosnia
and Herzegovina.” Indeed, Annex 6 expressly refers to Resolution
(93)6 of the Committee of
Ministers of the Council of Europe.
18.
The circumstance that the Human Rights Chamber was designed to operate as some sort of “trailblazer” for
the European Court of Human Rights explains a number of features of the
Chamber, but does not mean that it was an international court.
19.
In the Commission’s opinion, in fact, other elements are decisive for
concluding that the Chamber was a national, not an international body.
20.
It is to be noted, in the first place, that Committee of Ministers Resolution
(93)6 underlined that specially appointed qualified persons
would sit “on a court or other body responsible for the control of respect for
human rights set up by this state within
its internal legal system (emphasis added)”.
21. It
was in fact the intention and perception, both of the Contracting Parties of
the GFA and of those that signed Annex 6, that the Chamber would be established
and function as a domestic body within the legal system of Bosnia and Herzegovina.
22. Indeed, the HR Chamber was
undoubtedly an institution endowed with domestic jurisdiction comparable to the
jurisdiction of the Constitutional Court, in the area of human rights. In fact, these
two institutions were the only judicial institutions at the level of the
central State.
23.
The conditions for
the jurisdiction of the Chamber, listed in Article VIII § 2 [in particular sub
(a) (previous exhaustion of domestic remedies and six-month time-limit), (b) (ban
on examination of matters already submitted to “another procedure of
international investigation or settlement”) and (d) (possibility of deferring
consideration if the matter is pending before “any other international human
rights body”)] must be understood in connection with this role of temporary
monitoring mechanism “anticipating” the functions of the European Court of
Human Rights. The obligation to exhaust domestic remedies must be interpreted
as referring to the need to exhaust the remedies which were available in each Entity.
24.
The supervisory role of the High Representative, of the Secretary
General of the Council of Europe and of the OSCE (Articles IX § 2 and XI § 5)
must also be understood in the particular context of Bosnia and Herzegovina,
where the involvement of international actors not only in the civilian
implementation, but also in respect of the international police force, the
return of refugees and displaced persons and the supervision of elections, was
very important.
25. In the Commission’s opinion, the
decisive feature of the Human Rights Chamber ruling out its international
nature is that its mandate did not concern obligations between States,
but obligations undertaken by the State of Bosnia and Herzegovina, the
Federation of Bosnia and Herzegovina and the Republika Srpska : the Chamber
therefore exercised its supervision within the national boundaries of
Bosnia and Herzegovina only. Therefore, it had to be considered “as being part
of the whole system of protection of human rights and fundamental freedoms in Bosnia and Herzegovina”.
26.
The Commission notes with respect to the meaning of “another procedure
of international investigation or settlement” in the European Convention, that
the European Commission on Human Rights expressed the view that the term
“international investigation or settlement” referred to institutions and
procedures set up by States.
27.
In the Commission’s view, the international jurisdiction of the
institution or procedure is implicit in the requirement that it should be set
up by States. Indeed, this was the case with the only bodies which have so far
been found by the Strasbourg bodiesto constitute other “procedures of international investigation or settlement”: the
United Nations Human Rights Committee
and the Committee on Freedom of Association of the International Labour
Organization (ILO).
28.
It follows, in the Venice Commission’s view, that, notwithstanding
certain elements which could suggest that the Human Rights Chamber was an
international body (see paras. 14-17 above), the proceedings before the Human
Rights Chamber may not be considered as “another international procedure”
within the meaning of Article 35 § 2(b) of the European Convention on Human
Rights. On the contrary, they must be considered as “domestic” within the
meaning of Article 35 § 1. It follows that for the period between 12 July 2002,
when the European Convention on Human Rights entered into force in respect of
Bosnia and Herzegovina, and 31 December 2003, when the mandate of the Human
Rights Chamber ended,
the need to exhaust domestic remedies prior to applying to the European Court
made it necessary to apply to the Human Rights Chamber.
IV.
Whether
the proceedings before
the Constitutional Court are “domestic” within the meaning of Article
35 § 1 of the Convention or “international” within the meaning of Article 35 §
2 b) of the Convention
29.
What was said in reply to question 2 concerning the Human Rights Chamber
applies a fortiori to
proceedings before the Constitutional Court of Bosnia and Herzegovina.
30.
Despite its partly international composition (according to Article IV of
Annex 4, four of the nine members of the Court are selected by the House of
Representatives of the Federation of BH, two by the assembly of the Republika
Srpska and the remaining three by the President of the European Court of Human
Rights), the Constitutional Court was devised as a domestic court for the
Republic of Bosnia and Herzegovina, based upon its Constitution, and not as
some international tribunal. This is abundantly clear from the regulation of
its function in Article VI (3) of the Constitution.
31.
It is to be noted in particular that, according to 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” (emphasis added). This
undoubtedly points to concluding that the Constitutional Court is itself a court of Bosnia and Herzegovina.
32. In addition, similarly to the Human
Rights Chamber, the jurisdiction ratione loci of the Constitutional Court is limited to the territory of Bosnia and Herzegovina. In this respect, the Commission refers to
the reasoning developed above in connection with the nature of the proceedings
before the Chamber.
35. The proceedings before the Human
Rights Chamber may not be considered as “another international procedure”
within the meaning of Article 35 § 2(b) of the European Convention on Human
Rights. On the contrary, they must be considered as “domestic” within the meaning
of Article 35 § 1.
