Dopustivost apelacija protiv odluka ustavnih sudova entiteta u Bosni i Hercegovini
In this paper I consider if it is possible to file an appellation (constitutional complaint) to the Constitutional Court of Bosnia and Herzegovina against one of the entity's Constitutional Court’s decision on a normative abstract review procedure. The paper is based on the decision of the Constitutional Court of Bosnia and Herzegovina in case AP-2567/16 rendered in December 16, 2018. Here, the Court decided that the appellation was inadmissible because the Court does not have a jurisdiction in these types of cases. It argued that it is not in accordance with the “spirit” of the Constitution of Bosnia and Herzegovina to have jurisdiction in these cases. I argue that it is not possible to have en generale and a priori conclusion that appellations should be inadmissible. Instead, the Court should use the standard test regarding the admissibility conditions and decide on the question of admissibility. After the introductory remarks, I present the summary of the decisions of the Constitutional Court of Bosnia and Herzegovina (AP-2567/16) and the Constitutional Court of Federation Bosnia and Herzegovina (U 15/10). Afterwards, I summarize the legal opinions of several authors regarding this issue. In the fourth part I analyze the admissibility of the appellation in the case of AP-2567/16 using standards from the admissibility test developed in the case-law of the European Court for Human Rights. The test points out that state can interfere into a person’s rights in various ways – by ordinary court’s judgment, non-facere, even mere parliamentary act (statute) can be regarded as an act of interference. I argue that the decision of the Constitutional Court of Federation Bosnia and Herzegovina can be seen as an act which interferes into the property of appellants. Therefore, it seems that the appellation should have been declared admissible. In the fifth part, I argue that the manner in which the Constitutional Court of Bosnia and Herzegovina has changed its jurisprudence is not in accordance with the European standards introduced by the European Court for Human Rights and the Consultative Council of European Judges. In the sixth part I present the case-law of the German Federal Constitutional Court which shows that constitutional complaint against a decision of а constitutional court of federal unit or parliament act can be admissible. In the seventh part I analyze the merits of the case and argue that the decision of the Constitutional Court of Federation Bosnia and Herzegovina lacks quality in its substance that it can be regarded as an arbitrary one. Bearing in mind that interference into person’s property should be based on a law, which must be clear and non-arbitrary I conclude that the lawfulness condition from the ECtHR’s case-law is not fulfilled. Thus, there was a violation of the right to property. Therefore, it is possible to argue that an appellation against a decision of entity’s Constitutional Court may be admissible in special case like the one I have analyzed in this paper.
More...
