The Role of the Constitutional Court of Bosnia and Herzegovina in the Protection of Constitutionality in Bosnia and Herzegovina

Abstract

The Constitutional Court of Bosnia and Herzegovina is the guardian of the constitutional and legal system and the protector of the constitutional rights in Bosnia and Herzegovina. Its competences have been set forth in Article VI. 3 of the Constitution of Bosnia and Herzegovina. According to the Constitution of Bosnia and Herzegovina, the Constitutional Court is a special body of high authority ivhose primary competence is to oversee the constitutionality of laws as well as human rights and fundamental freedoms guaranteed under the Constitution of Bosnia and Herzegovina. It is beyond doubt that the Constitution of Bosnia and Herzegovina determined the position of the Constitutional Court to act in terms of organization and operation as an authority independent of all other instances of power in Bosnia, and Herzegovina. Since the Constitutional Court, pursuant to its competences, oversees all other instances of power, it is bound only by the Constitution of Bosnia and Herzegovina and its Rules of Procedure that it adopts, pursuant to the powers under the Constitution of Bosnia and Herzegovina.

In its case-law, the Constitutional Court has strived to limit itself to interpretative activism while being careful not to become a court of third or fourth instance. Consequently, as a rule, the Constitutional Court does not dwell on the issue whether the courts established the facts correctly and fully when appellate jurisdiction is in question, nor does it assess the evidence. The Constitutional Court finds that the facts on whose existence the assessment of a violation of a constitutional right depends are relevant facts.

After the European Convention for the Protection of Human Rights and Fundamental Freedoms was incorporated in the constitutional and legal system of Bosnia and Herzegovina, accompanied by a number of international agreements for protection of human rights that in a way complement the Constitution of Bosnia and Herzegovina, it may be freely said that the Constitutional Court is the strongest protector of human rights.

Following the ratification of the European Convention, large steps were taken for Bosnia and Herzegovina both toward inclusion in the European integrations and by allowing its internal legal system to be subject to independent bodies of the. Council of Europe. By doing so, Bosnia and Herzegovina undertook to harmonize its legal system with the standards set out in the European Convention and in the case-laiv of the European Court of Human Rights. In the light of the aforesaid, particular relevance is assigned to the institute of appeal before the Constitutional Court, xuhich represents the final level of protection of human rights and fundamental freedoms in Bosnia and Herzegovina. Namely, although this would be assessed by the European Court of Human Rights, submission of a request to the European Court of Human Rights prior to the termination of a procedure before the Constitutional Court would be held inadmissible, and such requests would be rejected - due to failure to exhaust domestic legal remedies. In this way, appellate jurisdiction would gain significance and a decision on an appeal would be the last opportunity for Bosnia and Herzegovina to correct human rights violations within its judicial system, which should be the ultimate goal of all human rights protection instrument.

In conclusion, it may be asserted that the Constitutional Court, in the light of specific social, economic and political conditions in Bosnia and Herzegovina in which it has been operating until present day, has used in a conscientious and daring manner its constitutional powers for the protection of human rights and fundamental freedoms guaranteed under the Constitution of Bosnia and Herzegovina. The overall decisions in those cases make an actual contribution of the Constitutional Court to protection and recognition of the rule, of law in Bosnia and Herzegovina. Therefore, in order for the Court to protect the rule of law in an efficient manner, it is crucial that, in its relation towards the bodies of the legislative, executive and judicial authorities, organizational and functional independence of the Constitutional Court, is ensured, both constitutionally and actually. It is also crucial that all of the authorities in Bosnia and Herzegovina are applying and implementing the decisions of the Constitutional Court regardless of their standpoint on certain decisions in terms of their interests or values. The Constitutional Court would only in that manner be able to integrate itself completely into the contemporary European and world developments concerning the constitutional and judicial protection.