SPEECH BY THE PRESIDENT OF THE CONSTITUTIONAL COURT OF
BOSNIA AND HERZEGOVINAON THE OCCASSION OF THE INTERNATIONAL HUMAN RIGHTS DAY
DECEMBER 10th, 2008
"All human beings are born free and equal in dignity and rights. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. "
These are the first provisions of the Universal Declaration on Human Rights proclaimed by the United Nations on December 10th
1948, when the world, following aharsh experience of the Second World War and mass violations of the human rights and fundamental freedoms, understood the need to create conditions and mechanisms that would prevent such horrors from repeating.
We celebrate this date as the International Human Rights Day and on this occasion we invited you, Your Excellencies, esteemed guests, ladies and gentlemen hoping to remind ourselves of the fundamental principles engraved in the Universal Declaration as well as in numerous other regional mechanisms for human rights protection, with the European Convention for the Protection of Human Rights and Fundamental Freedoms taking a special place.
We invited you with an idea to ask ourselves whether today, 60 years after the world said "No" to illegal deprivation of lives, personal safety, freedom of movement, inequalities, prohibitions based on difference in race and color of skin, in ethnicities, property status, we indeed live in the world as “conceived”by the Universal Declaration.
The recent history of Bosnia and Herzegovina and other numerous countries in the world in which mass violations of the fundamental human rights and freedoms and particularly right to life either occurred or are occurring as we speak, indeeddisproves everyone whose answer is affirmative to this question. I therefore find that we have an obligation to continuouslyturn attention to necessity of protecting human rightsso that the ideas from Universal Declaration are not onlydead letters. We have this obligation particularly towards the future generations whose education and development must be characterized by the spirit of safety, tolerance and equal rights for all.
The obligation I refer to has been committed to the Constitutional Court of Bosnia and Herzegovina andI can proudly say that our daily work consists of promotion and protection of the principles from the Universal Declaration, which have found their place in the Constitution of Bosnia and Herzegovina as well as in the European Convention for the Protection of Human Rights and Fundamental Freedoms having the power of constitutional provisions in Bosnia and Herzegovina.
I wish to take this opportunity to brieflypresentto you the work of the Constitutional Court by referring to several fundamental guidelines concerning its position and significant case-law.
By defining normative prerequisites for entering into the democratic political system and modifying internal structure of the state, the Constitution of Bosnia and Herzegovina opened the way for the Constitutional Court of Bosnia and Herzegovina and made it compatible with the standards of the constitutional judiciary – at the same time being an independent guardian of the Constitution and institutional guarantor of the protection of the human rights and fundamental freedoms established not only through the catalogue of rights enumerated in Article 2 of the Constitution but also instruments of Annex I to the Constitution of BiH. This twofold role of the Constitutional Court developed through time and evolved throughthe creation rich case-law, having significant rolein the constitutional development of the legal system in Bosnia and Herzegovina, on other side and strengthening the human rights and fundamental freedoms protection mechanisms, on the other side.
Through its dynamic and progressive interpretation of the Constitution and acting as aguardian of the Constitution, the Constitutional Court contributed to the improvement of the legal framework necessary for strengthening of the functionality of the state and its constitutional and legal system, legal security and systematic protection of the rights withoutdiscrimination.
In that sense I refer to several important, even historical, decisions. By these the Constitutional Court gave dynamic and progressive interpretation of the Constitution of BiH, availing itself of the fact that the Constitution contains certain antinomieswhich were used for progressive approach instead of being interpreted as an obstacle to further constitutional and legal development. By exercising its jurisdiction of constitutional review, the Constitutional Court of BiH overcame its role of “negative legislator”and, in respecting democratic authorities, it has started giving answers to the questionsas to how the society should evolve in order to make an impact on its Constitution and principles of human rights and fundamental freedoms.
One of the first such decisions is certainly the “Constituent Peoples”Decision taken in the proceedings relating to the constitutional review of the Entity Constitutions in relation to the Constitution of Bosnia and Herzegovina. In that Decision, the Constitutional Court of BiH established, amongst other things, that territorial arrangement of the entities «must not serve as an instrument of ethnic segregation», and that the constitutional principle of collective equality of the constituent peoples «prohibits any special privilege for one or two of these peoples, any domination in governmental structures or any ethnic homogenisation through segregation based on territorial separation”.
I also must refer to decisions by which the Court decided on the constitutionality of the Law on State Border Service and Law on the Court of Bosnia and Herzegovina, significant for at least two reasons. First, taking into account the fact that these laws were imposed by the decisions of the High Representative for BiH – since the Constitutional Court took the viewthat in the situations when the High Representative intervenes in the legal system of the state substituting the state legislative authority, the law imposed should be considered as local law subject to examination by the Constitutional Court pursuant to Article VI(3)(a) of the Constitution of BiH.
Further, deciding the essence of those cases, the Constitutional Court found that formation of the State Border Service guarantees the fundamental principle of the right of a State to self-defense, which is inherent to the notion of sovereignty and territorial integrity of the State, making thus the Law on the State Border Service in compliance with Article III(2) of the Constitution of BiH and with the responsibilities provided for by Article III(1) of the Constitution and supplemented by Article III(5) of the Constitution.
In addition, it was found that establishing the Court of BiH represents greater contribution to strengthening of the rule of law, which is one of the fundamental principles necessary for functioning of the democratic state. It furtherfound that Bosnia and Herzegovina, functioning as a democratic state, was authorized “to establish, in the areas under its responsibility, other mechanisms, besides those provided in the Constitution of Bosnia and Herzegovina, and additional institutions that were necessary for the exercise of its responsibilities, including the setting up of a court to strengthen the legal protection of its citizens and to ensure respect for the principles of the European Convention”.
By referring to these, perhaps, most illustrative examples from the rich case-law of the Constitutional Court of BiH, I would like to reiterate the significant role of the Constitutional Court in consistently guaranteeingequality of the constituent peoples on the entire territory of Bosnia and Herzegovina, securing sovereignty, territorial integrity and international subjectivity of the state and strengtheningthe legal security and rule of law.
On the other hand, another constitutionally defined role of the Constitutional Court – as institutional guarantee of the human rights and fundamental freedoms is not less significant. This role is defined by the Constitution as appellate jurisdiction of the Constitutional Court.
The appeal before the Constitutional Court (known as «constitutional lawsuit » in other countries) represents the last level of protection of human rights and fundamental freedoms in Bosnia and Herzegovina, and the Constitutional Court of Bosnia and Herzegovina became the most senior national mechanism for protection of human rights and fundamental freedoms.
The Constitutional Court basis its case-law on the case-law and standards of the former European Commission and European Court of Human Rights as well as the case-law of the constitutional courts of the majority of the European countries. Principally, the Constitutional Court does not examine the issue of regularity and lawfulness of the challenged individual act, but deals with violations of specific, often restrictively understood, constitutional issues. Such practice is motivated primarily by the need to confine its activity within the scope of its constitutional jurisdiction, that is, protection of constitutional and not subjective rights of the citizens.
In order to secure full protection of the human rights and fundamental freedoms, the Constitutional Court has gradually taken stances and evolved regarding its case-law on certain crucial issues which may implicate possible violation of constitutional rights, whereby its decisions contributed not only towards protecting individual rights in the present case, but also to rectifying systemic causes of human rights violations. I shall recall but a few such decisions.
The Constitutional Court has played a significant role when it comes to the protection of the right to property, particularly in cases relating to the restitution of apartments to pre-war occupancy right holders within the context of enabling the return of refugees and displaced persons to their homes. To that end, while deliberating on these issues, the Constitutional Court took a position that occupancy right, that is to say apartments with occupancy right constitute sui generis property, or economic value within the meaning of «property» included in the protection as referred to in Article 1 of Protocol No. 1 to the European Convention.
In cases relating to missing persons, the Constitutional Court concluded that the fact that not even ten years after the end of the war in Bosnia and Herzegovina, had the competent authorities submitted to the appellants information on the fate of their family members who went missing during the war in Bosnia and Herzegovina, violates their right to prohibition of inhuman treatment under Article 3 and the right to private and family life under Article 8 of the European Convention. Therefore the Constitutional Court ordered the competent authorities to instantly establish and enable efficient operation of institutions founded by the Law on Missing Persons, in particular the Institute for Missing Persons, the Fund for providing assistance to the families of missing persons and the Central Registry of Missing Persons in Bosnia and Herzegovina.
In cases of the so-called «war damage» the Constitutional Court found that the manner and time limits, laid down by the Law on Public Debt in Republika Srpska for the reimbursement of war damage under the legally binding judgments, violated the right to a fair trial, for in some cases reimbursements were made impossible, and in other cases the law placed “excessive burden on individuals” thereby violating the principle of proportionality between the public interest of the community and fundamental rights of individuals.
In cases of «old foreign currency savings» deposited exclusively with the banks in BiH and their business branches in the territory of the present day Entities, the Constitutional Court concluded that, by failing to adopt a framework law to regulate the issue of the old foreign currency savings payments, Bosnia and Herzegovina failed to protect effectively the appellants' right to property.
In terms of requests relating to the «old foreign currency savings» in «foreign banks», the Constitutional Court found that neither Bosnia and Herzegovina nor its Entities were responsible for payment of the old foreign currency savings deposited with the said banks. However, it found that BiH is responsible for failing to meet positive obligation to effectively protect the appellants' rights to property, and that it is obliged to take political measures, propose, request and advocate with the states whose banks are holding the deposited funds of its citizens in order for such states to take appropriate measures to resolving this issue of the old foreign currency savings, particularly to encourage resumption of negotiations on this issue as part of its negotiations on succession of the former Yugoslavia.
Respect for human rights and fundamental freedoms, despite constant progress, has not reached a satisfactory level in Bosnia and Herzegovina yet. In this regard, one needs to emphasize the fact that the ordinary courts, when adopting their decisions, are still not sufficiently mindful of the application of the human rights standards under the Constitution of BiH and the European Convention.
In particular, the practice of direct application of the European Convention by the ordinary courts has not taken hold yet to a sufficient extent, although the Convention and its Protocols, as I have already said, have in Bosnia and Herzegovina the power of the constitutional provisions. Conversely, under Article II(6) of the Constitution of BiH, ordinary courts are obliged to directly apply the European Convention and its Protocols.
Also, ordinary courts do not avail themselves of their constitutional authorization to request a decision from the Constitutional Court on whether the law, which they should apply to a specific case, is in compliance with the Constitution of BiH, the European Convention and its Protocols, or with the laws of BiH; or in terms of existence or scope of some general rule of international public law crucial for the decision of an ordinary court.
Conversely, thanks to, among other things, great contribution of the international community in the training and awareness raising projects, the awareness of citizens about their rights and protection mechanisms has significantly increased.
These are the factors contributing significantly toward the increase in a number of cases forwarded to the Constitutional Court arising under its appellate jurisdiction. The Constitutional Court receives annually over 3,500 cases, as was the case last year, or over 4,000 cases, which we anticipate to receive by year’s end.
At the same time, due to constant upgrades in organizational solutions, the Constitutional Court of Bosnia and Herzegovina managed to decide a total of 3,030 cases from January to November 2008, most of which concerned the appellate jurisdiction. Considering the trend of increased influx of cases, it is certainly necessary to carefully examine the issue of how to strike a balance between the efficient protection of human rights guaranteed by the Constitution in individual (specific) cases and allowing the Constitutional Court to efficiently exercise its fundamental constitutional tasks.
With that goal in mind, it is certainly necessary to continue with education and persistence on consistent application of the standards of human rights and fundamental freedoms in judicial proceedings before ordinary courts.
From its very beginning to this day, the Constitutional Court has conscientiously and bravely availed itself of its constitutional powers of protecting human rights and fundamental freedoms guaranteed by the Constitution, and the total of decisions in these cases make for a real contribution of the Constitutional Court of Bosnia and Herzegovina toward the protection and promotion of the rule of law in Bosnia and Herzegovina.
For the Constitutional Court to continue with effective protection of human rights and fundamental freedoms, i.e. with consistent implementation of the principle of the rule of law, it is necessary that its organizational and operational independence and autonomy be secured constitutionally and de facto in its relations to the bodies of legislative, executive and judicial authority, and that all authorities in BiH apply and implement decisions of the Constitutional Court regardless of their interests or positions regarding a specific decision. Only in this way, will the Constitutional Court be able to take part in contemporary European and even global trends relating to the constitutional and judicial protection, and to give its full contribution toward the constitutional and legal development of BiH and more efficient protection of human rights and fundamental freedoms.
Thank you for your attention!
Now, please allow me to invite you to join the Constitutional Court of Bosnia and Herzegovina for some refreshments!
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