Constitutional Court of Bosnia and Herzegovina
Encyclopedia
The Constitutional Court of Bosnia and Herzegovina is a special court sui generis
, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina
, as stated in Article VI, paragraph 3 of the Constitution ("The Constitutional Court shall uphold this Constitution"), and it is considered to be the highest judicial authority, since it has the appellate jurisdiction
over issues under the Constitution arising out of a judgment of any other court in Bosnia and Herzegovina
(Article VI, paragraph 3.b).
system which nevertheless has a history of having a constitutional court, since the former Yugoslavia
was the only country which had a system of the constitutional courts already in socialist regime. The first Constitutional Court in former Yugoslavia was created as early as 1963. This date coincided with the starting point of the history of a constitutional court in Bosnia and Herzegovina. In accordance with the federal structure of the former SFRY, not only was there a Constitutional Court at the federal level, but prior to the dissolution of former Yugoslavia, the six Republics and even the two Autonomous Provinces – Kosovo
and Vojvodina
– also had their own Constitutional Courts.
The Constitutional Court of Bosnia and Herzegovina was established for the first time on 15 February 1964 pursuant to the Constitution of 1963. Its existence was confirmed in the Constitution of 1974. The jurisdiction of this Constitutional Court consisted primarily of an abstract normative control. Thus, it would take decisions as to the conformity of the (Republic’s) laws with the Constitution, and as to the constitutionality and legality of other regulations and general and self-management acts. It would also be called upon to resolve disputes between the Republic and other political-territorial units, in particular, conflicts of jurisdiction as between the courts and other bodies of political-territorial units. The 'Law on the Constitutional Court' regulated issues concerning the organization, jurisdiction and procedures before this Constitutional Court.
The role and jurisdiction of the Constitutional court was redefined in the Dayton Peace Agreement (Annex IV - Constitution of Bosnia and Herzegovina, Article VI).
Essentially, the distinction between these various types of jurisdiction is based on the extent to which the Constitutional Court, in addition to the classical task of upholding constitutionality, also has, in certain types of disputes, a more direct relation with the judicial or legislative authority concerned.
The Constitutional Court has exclusive jurisdiction
to decide any dispute that arises under the Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina. In effect, the Court has to decide on positive or negative conflicts of jurisdiction, or any other disputes that may arise under relations between the state and entity authority and/or the institutions of Bosnia and Herzegovina.
Review of constitutionality of laws
The Constitutional Court has jurisdiction over issues whether any provision of an Entity's constitution or a law of an Entity is compatible with the Constitution of Bosnia and Herzegovina.
Although, the Constitution of Bosnia and Herzegovina explicitly focuses only on 'provisions of an Entity's law', this also implies a review of constitutionality of laws of Bosnia and Herzegovina in accordance with the general task of the Court to uphold the Constitution of Bosnia and Herzegovina.
In special cases, the Court also has jurisdiction to examine whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with the Constitution including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.
Referral of disputes
In both presented cases, under the Constitution, disputes may be referred only by the following authorized parties: a member of the Presidency, the Chair of the Council of Ministers, the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, one-fourth of the members of either chamber of the Parliamentary Assembly, or one-fourth of either chamber of a legislature of an Entity.
This implies that the Constitutional Court is the highest judicial body in the land. This confirms its role as being a special institutional safe-guard for the protection of the rights and freedoms enshrined in the Constitution.
This provision is effected through the Rules of the Constitutional Court so the Court, if it finds an appeal well-founded, may act in one of two ways: the Court may act as a court of full jurisdiction and it may decide on the merits or it may quash the challenged decision and refer the case back to the court that adopted the judgement for renewed proceedings. The court whose decision has been quashed is required to take another decision in expedient proceedings and, in doing so, it shall be bound by the legal opinion of the Constitutional Court concerning the violation of the appellant’s rights and the fundamental freedoms guaranteed under the Constitution.
Appellants, who believe that the judgement or other decision of any court is in violation of their rights, have the right to lodge an appeal after all legal remedies have been exhausted while the Court shall also consider the effectiveness of possible legal remedies.
and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law.
In general, the Constitutional Court may uphold a law pertinent to the lower court's decision or proclaim it invalid. The latter shall be required to proceed pursuant to the decision of the Constitutional Court.
The Constitutional Court here resolves a dispute in which a proposed decision of the Parliamentary Assembly, according to the opinion of a majority of the delegates representing any of the three constituent peoples in the House of Peoples, is considered to be destructive to the vital national interest, whilst at the same time all 'parliamentary means' for the resolution of this issue in the House of Peoples have been exhausted.
s, out of which four are selected by the House of Representatives of the Federation of Bosnia and Herzegovina
, two are selected by National Assembly of the Republic of Srpska, and the remaining three members are selected by the President of the European Court of Human Rights
after consultation with the Presidency of Bosnia and Herzegovina
(Article VI.1.a).
The Constitution
also states (Article VI.1.b) that the judges must be "distinguished jurists of high moral standing", and that any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights
cannot be citizens of Bosnia and Herzegovina or of any neighbouring state.
The term of judges that were initially appointed was five years, and were not eligible for reappointment. Judges subsequently appointed could serve until age 70, unless they resigned or were removed for cause by consensus of the other judges. The Constitution also states that for appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly could provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights, however it has still not changed that.
It should also be noted that the Constitution does not require the proportionality of the "constituent peoples" in the Court, however a constitutional custom developed by which a Constitutional court should have two judges from every of the constituent peoples (Bosniaks
, Serbs and Croats), besides the three foreign judges.
Current composition of the Court:
Judges:
The way the judges are selected has created controversies over the years. Since there are no other criteria or formal guidelines besides the criteria that judges should be "distinguished jurists of high moral standing", this has led to a situation that it is easier to become a judge of the national constitutional court then the judge of a lower court, since that position has more requirements and specific process of vetting. Also, political influence has a great part in the appointment of judges, so persons with very active political carriers have been chosen by the parliaments of entities, like the current judges Seada Palavrić
and Mirsad Ćeman (former long time members of SDA party
) or Krstan Simić (member of SNSD party before his selection). Judge Krstan Simić was subsequently dismissed from the Court by the consensus of other judges, because of his controversial correspondence with his former party leader.
The formal name of this item is U-5/98, but it is widely known as the "Decision on the constituency of peoples" , referring to the Court's interpretation of the significance of the phrase "constituent peoples" used in the Preamble of the Constitution of Bosnia and Herzegovina. The decision was also the basis for other notable cases that came before the court.
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
, whose main role is to be the interpreter and guardian of the Constitution of Bosnia and Herzegovina
Constitution of Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina is the highest legal document of Bosnia and Herzegovina. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, signed in Paris on 14 December 1995...
, as stated in Article VI, paragraph 3 of the Constitution ("The Constitutional Court shall uphold this Constitution"), and it is considered to be the highest judicial authority, since it has the appellate jurisdiction
Appellate jurisdiction
Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...
over issues under the Constitution arising out of a judgment of any other court in Bosnia and Herzegovina
Bosnia and Herzegovina
Bosnia and Herzegovina , sometimes called Bosnia-Herzegovina or simply Bosnia, is a country in Southern Europe, on the Balkan Peninsula. Bordered by Croatia to the north, west and south, Serbia to the east, and Montenegro to the southeast, Bosnia and Herzegovina is almost landlocked, except for the...
(Article VI, paragraph 3.b).
History
Bosnia and Herzegovina provides a rare example of a country in transition from a socialistSocialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
system which nevertheless has a history of having a constitutional court, since the former Yugoslavia
Yugoslavia
Yugoslavia refers to three political entities that existed successively on the western part of the Balkans during most of the 20th century....
was the only country which had a system of the constitutional courts already in socialist regime. The first Constitutional Court in former Yugoslavia was created as early as 1963. This date coincided with the starting point of the history of a constitutional court in Bosnia and Herzegovina. In accordance with the federal structure of the former SFRY, not only was there a Constitutional Court at the federal level, but prior to the dissolution of former Yugoslavia, the six Republics and even the two Autonomous Provinces – Kosovo
Kosovo
Kosovo is a region in southeastern Europe. Part of the Ottoman Empire for more than five centuries, later the Autonomous Province of Kosovo and Metohija within Serbia...
and Vojvodina
Vojvodina
Vojvodina, officially called Autonomous Province of Vojvodina is an autonomous province of Serbia. Its capital and largest city is Novi Sad...
– also had their own Constitutional Courts.
The Constitutional Court of Bosnia and Herzegovina was established for the first time on 15 February 1964 pursuant to the Constitution of 1963. Its existence was confirmed in the Constitution of 1974. The jurisdiction of this Constitutional Court consisted primarily of an abstract normative control. Thus, it would take decisions as to the conformity of the (Republic’s) laws with the Constitution, and as to the constitutionality and legality of other regulations and general and self-management acts. It would also be called upon to resolve disputes between the Republic and other political-territorial units, in particular, conflicts of jurisdiction as between the courts and other bodies of political-territorial units. The 'Law on the Constitutional Court' regulated issues concerning the organization, jurisdiction and procedures before this Constitutional Court.
The role and jurisdiction of the Constitutional court was redefined in the Dayton Peace Agreement (Annex IV - Constitution of Bosnia and Herzegovina, Article VI).
Jurisdiction
In general, the jurisdiction of the Constitutional Court is defined under Article VI.3 and Article IV.3 of the Constitution. Within its overriding duty to 'uphold' the Constitution of Bosnia and Herzegovina, it consists of five types of jurisdiction. The proceedings to be followed and type of decision to be given will depend upon the type concerned and the nature of the case.Essentially, the distinction between these various types of jurisdiction is based on the extent to which the Constitutional Court, in addition to the classical task of upholding constitutionality, also has, in certain types of disputes, a more direct relation with the judicial or legislative authority concerned.
Disputes arising under conflict of jurisdiction and an abstract review of constitutionality
Disputes arising under conflict of jurisdictionThe Constitutional Court has exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
to decide any dispute that arises under the Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina. In effect, the Court has to decide on positive or negative conflicts of jurisdiction, or any other disputes that may arise under relations between the state and entity authority and/or the institutions of Bosnia and Herzegovina.
Review of constitutionality of laws
The Constitutional Court has jurisdiction over issues whether any provision of an Entity's constitution or a law of an Entity is compatible with the Constitution of Bosnia and Herzegovina.
Although, the Constitution of Bosnia and Herzegovina explicitly focuses only on 'provisions of an Entity's law', this also implies a review of constitutionality of laws of Bosnia and Herzegovina in accordance with the general task of the Court to uphold the Constitution of Bosnia and Herzegovina.
In special cases, the Court also has jurisdiction to examine whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with the Constitution including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.
Referral of disputes
In both presented cases, under the Constitution, disputes may be referred only by the following authorized parties: a member of the Presidency, the Chair of the Council of Ministers, the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, one-fourth of the members of either chamber of the Parliamentary Assembly, or one-fourth of either chamber of a legislature of an Entity.
Appellate jurisdiction
The appellate jurisdiction of the Constitutional Court is established by the constitutional provision according to which 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”.This implies that the Constitutional Court is the highest judicial body in the land. This confirms its role as being a special institutional safe-guard for the protection of the rights and freedoms enshrined in the Constitution.
This provision is effected through the Rules of the Constitutional Court so the Court, if it finds an appeal well-founded, may act in one of two ways: the Court may act as a court of full jurisdiction and it may decide on the merits or it may quash the challenged decision and refer the case back to the court that adopted the judgement for renewed proceedings. The court whose decision has been quashed is required to take another decision in expedient proceedings and, in doing so, it shall be bound by the legal opinion of the Constitutional Court concerning the violation of the appellant’s rights and the fundamental freedoms guaranteed under the Constitution.
Appellants, who believe that the judgement or other decision of any court is in violation of their rights, have the right to lodge an appeal after all legal remedies have been exhausted while the Court shall also consider the effectiveness of possible legal remedies.
Referral of an issue by other courts
The Constitutional Court has jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law.
In general, the Constitutional Court may uphold a law pertinent to the lower court's decision or proclaim it invalid. The latter shall be required to proceed pursuant to the decision of the Constitutional Court.
Unblocking of the Parliamentary Assembly
The jurisdiction of the Constitutional Court in the case of 'blockage' of the work of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina concerning an issue of destructiveness to the vital national interest, represents in many ways atypical area of activity of a constitutional court, as this represents a close 'interface' between the “judicial” and “legislative” authorities.The Constitutional Court here resolves a dispute in which a proposed decision of the Parliamentary Assembly, according to the opinion of a majority of the delegates representing any of the three constituent peoples in the House of Peoples, is considered to be destructive to the vital national interest, whilst at the same time all 'parliamentary means' for the resolution of this issue in the House of Peoples have been exhausted.
Composition of the court
The Constitutional Court consists of nine judgeJudge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, out of which four are selected by the House of Representatives of the Federation of Bosnia and Herzegovina
House of Representatives of the Federation of Bosnia and Herzegovina
The House of Representatives of the Federation of Bosnia and Herzegovina is the legislative body of the Federation of Bosnia and Herzegovina, one of two entities of Bosnia and Herzegovina....
, two are selected by National Assembly of the Republic of Srpska, and the remaining three members are selected by the President of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
after consultation with the Presidency of Bosnia and Herzegovina
Presidency of Bosnia and Herzegovina
The Presidency of Bosnia and Herzegovina is the head of state of Bosnia and Herzegovina.-Overview:...
(Article VI.1.a).
The Constitution
Constitution of Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina is the highest legal document of Bosnia and Herzegovina. The current Constitution is the Annex 4 of The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement, signed in Paris on 14 December 1995...
also states (Article VI.1.b) that the judges must be "distinguished jurists of high moral standing", and that any eligible voter so qualified may serve as a judge of the Constitutional Court. The judges selected by the President of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
cannot be citizens of Bosnia and Herzegovina or of any neighbouring state.
The term of judges that were initially appointed was five years, and were not eligible for reappointment. Judges subsequently appointed could serve until age 70, unless they resigned or were removed for cause by consensus of the other judges. The Constitution also states that for appointments made more than five years after the initial appointment of judges, the Parliamentary Assembly could provide by law for a different method of selection of the three judges selected by the President of the European Court of Human Rights, however it has still not changed that.
It should also be noted that the Constitution does not require the proportionality of the "constituent peoples" in the Court, however a constitutional custom developed by which a Constitutional court should have two judges from every of the constituent peoples (Bosniaks
Bosniaks
The Bosniaks or Bosniacs are a South Slavic ethnic group, living mainly in Bosnia and Herzegovina, with a smaller minority also present in other lands of the Balkan Peninsula especially in Serbia, Montenegro and Croatia...
, Serbs and Croats), besides the three foreign judges.
Current composition of the Court:
- President: Seada PalavrićSeada PalavricSeada Palavrić is a current Judge of the Constitutional Court of Bosnia and Herzegovina.She was born in Tuzla on 10 November 1954. She graduated from the Faculty of Law at the University of Sarajevo in 1984 and passed the bar exam in 1995...
- Vice-President: David John FeldmanDavid Feldman (academic)David Feldman is the Rouse Ball Professor of English Law at the University of Cambridge and a Fellow of Downing College, Cambridge, as well as the author and editor of several books on British law. He was formerly the Acting Director of the Centre of Public Law and since early 2006 has been...
- Vice-President: Valerija GalićValerija GalicValerija Galić is a current Vice-President of the Constitutional Court of Bosnia and Herzegovina.She was born in Split, Croatia . She completed the First Grammar School in Sarajevo and graduated from the Faculty of Law of the University of Sarajevo on 13 April 1981...
Judges:
- Miodrag SimovićMiodrag SimovicMiodrag Simović is a current Judge of the Constitutional Court of Bosnia and Herzegovina.He was born in Foča on 3 November 1952. He graduated from the Faculty of Law in Novi Sad as one of the best students. In 1981, he obtained his master’s degree after completion of postgraduate studies in...
- Tudor PantiruTudor PantiruTudor Pantiru is a current Judge of the Constitutional Court of Bosnia and Herzegovina.He was born on 26 October 1951 in Baraboi, Moldavian SSR, Soviet Union. In 2001 he moved to Romania and currently lives in Bucharest. He earned his MA in Law at the Faculty of Law, State University of Moldova...
- Mato TadićMato TadicMato Tadić is a current Judge of the Constitutional Court of Bosnia and Herzegovina.After completing primary and secondary education, Tadić enrolled at the Faculty of Law in Sarajevo, University of Sarajevo...
- Constance GreweConstance GreweConstance Grewe is a current Judge of the Constitutional Court of Bosnia and Herzegovina.She was born on 14 December 1946 in Stuttgart . She earned her Bachelor degree at Frankfurt in 1966. Then she completed her studies in Law in Germany in period from 1966 until 1967 and in France at the Faculty...
- Mirsad Ćeman
- One member pending election
The way the judges are selected has created controversies over the years. Since there are no other criteria or formal guidelines besides the criteria that judges should be "distinguished jurists of high moral standing", this has led to a situation that it is easier to become a judge of the national constitutional court then the judge of a lower court, since that position has more requirements and specific process of vetting. Also, political influence has a great part in the appointment of judges, so persons with very active political carriers have been chosen by the parliaments of entities, like the current judges Seada Palavrić
Seada Palavric
Seada Palavrić is a current Judge of the Constitutional Court of Bosnia and Herzegovina.She was born in Tuzla on 10 November 1954. She graduated from the Faculty of Law at the University of Sarajevo in 1984 and passed the bar exam in 1995...
and Mirsad Ćeman (former long time members of SDA party
Party of Democratic Action
The Party of Democratic Action is a Bosniak national political party in Bosnia and Herzegovina.-History:The Party of Democratic Action was founded in May 1990 by Alija Izetbegović, representing the Bosnian Muslim population...
) or Krstan Simić (member of SNSD party before his selection). Judge Krstan Simić was subsequently dismissed from the Court by the consensus of other judges, because of his controversial correspondence with his former party leader.
Notable decisions
Decision on the constituency of peoples is the landmark case of the Constitutional Court of Bosnia and Herzegovina, instituted for an evaluation of the consistency of the Constitution of the Republika Srpska and the Constitution of the Federation of Bosnia and Herzegovina with the Constitution of Bosnia and Herzegovina. The four partial decisions were made in a year 2000, by which many of articles of the constitutions of entities were found to be unconstitutional, which had a great impact on politics of Bosnia and Herzegovina, because there was a need to adjust the current state in the country with the decision of the Court. There was a narrow majority (5-4), in the favor of the applicant.The formal name of this item is U-5/98, but it is widely known as the "Decision on the constituency of peoples" , referring to the Court's interpretation of the significance of the phrase "constituent peoples" used in the Preamble of the Constitution of Bosnia and Herzegovina. The decision was also the basis for other notable cases that came before the court.
See also
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- JurisprudenceJurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
- JudiciaryJudiciaryThe judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...