The Constitutional Court of Bosnia and Herzegovina ( sh-Latn-Cyrl, Ustavni sud Bosne i Hercegovine, Уставни суд Босне и Херцеговине) is the interpreter and guardian of the
Constitution of Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina ( Bosnian, Croatian and Serbian: ''Ustav Bosne i Hercegovine'' / Устав Босне и Херцеговине) is the highest legal document of Bosnia and Herzegovina. The current Constitution is the A ...
, It has the
appellate jurisdiction over issues arising out of a judgment of any other court in the country, including the constitutional courts of the two entities and the
Court of Bosnia and Herzegovina :''This article refers to the Court of Bosnia and Herzegovina, a domestic court which includes international judges and prosecutors and a section for war crimes; it should not be confused with the separate International Criminal Tribunal for the For ...
.
History
Bosnia and Herzegovina provides a rare example of a country in transition from a
socialist
Socialism is a left-wing economic philosophy and movement encompassing a range of economic systems characterized by the dominance of social ownership of the means of production as opposed to private ownership. As a term, it describes the ...
system which nevertheless has a history of having a constitutional court, since the former
Yugoslavia
Yugoslavia (; sh-Latn-Cyrl, separator=" / ", Jugoslavija, Југославија ; sl, Jugoslavija ; mk, Југославија ;; rup, Iugoslavia; hu, Jugoszlávia; rue, label=Pannonian Rusyn, Югославия, translit=Juhoslavija ...
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 ( sq, Kosova or ; sr-Cyrl, Косово ), officially the Republic of Kosovo ( sq, Republika e Kosovës, links=no; sr, Република Косово, Republika Kosovo, links=no), is a partially recognised state in Southeast Euro ...
and
Vojvodina
Vojvodina ( sr-Cyrl, Војводина}), officially the Autonomous Province of Vojvodina, is an autonomous province that occupies the northernmost part of Serbia. It lies within the Pannonian Basin, bordered to the south by the national capital ...
– 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
The General Framework Agreement for Peace in Bosnia and Herzegovina, also known as the Dayton Agreement or the Dayton Accords ( Croatian: ''Daytonski sporazum'', Serbian and Bosnian: ''Dejtonski mirovni sporazum'' / Дејтонски мир ...
(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 jurisdiction
The Constitutional Court has
exclusive jurisdiction
Exclusive jurisdiction exists in civil procedure if one court has the power to adjudicate a case to the exclusion of all other courts. The opposite situation is concurrent jurisdiction (or non-exclusive jurisdiction) in which more than one court ...
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 Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
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 interest of constituent peoples, represents in many ways a typical 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
judges, out of which four are selected by the
, 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
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
after consultation with the
Presidency of Bosnia and Herzegovina (Article VI.1.a).
The
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
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
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
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.
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,
Serb
The Serbs ( sr-Cyr, Срби, Srbi, ) are the most numerous South Slavic ethnic group native to the Balkans in Southeastern Europe, who share a common Serbian ancestry, culture, history and language.
The majority of Serbs live in their na ...
s and
Croat
The Croats (; hr, Hrvati ) are a South Slavic ethnic group who share a common Croatian ancestry, culture, history and language. They are also a recognized minority in a number of neighboring countries, namely Austria, the Czech Republic, Ge ...
s), besides the three foreign judges.
Current composition of the Court:
*
Valerija Galić (2002, president 2012–2015, vice-president 2015–2022, president 2022–)
*
Miodrag Simović
Miodrag Simović (born 3 November 1952 in Foča) is a Bosnian judge and academic, member of the Constitutional Court of Bosnia and Herzegovina. He declared ethnic affiliation as a Bosnian Serb.
Biography
Simović graduated with honours from the ...
(2003, president 2009–2012, vice-president since 2021)
*
Mirsad Ćeman
Mirsad Ćeman (born 1955 in Miljanovci, Tešanj) is a Bosnian lawyer and politician, judge of the Constitutional Court of Bosnia and Herzegovina. He declared ethnic affiliation as a Bosniak.
Biography
Ćeman graduated in Law from the Universi ...
(2008, president 2015–2018, vice-president since 2018)
*
Zlatko M. Knežević (2011, vice-president 2015–2018, president 2018–2021)
*
Seada Palavrić (2005, president 2008–2009)
*
Helen Keller (, 2020, vice-president since 2022)
*
Angelika Nussberger (, 2020)
*
Ledi Bianku (, 2022)
Former Judges:
*
Mato Tadić (2002–2022, president 2003–2006, vice-president 2015–2021, president 2021–2022)
*
Hatidža Hadžiosmanović (2002–2008, vice-president 2005–2006, president 2006–2008)
*
Tudor Panțîru
Tudor Panțîru (born 26 October 1951) is a Moldovan and Romanian judge, politician and diplomat, former President of the Constitutional Court of Moldova, and former international judge of the Constitutional Court of Bosnia and Herzegovina (2002 ...
(/, 2002–2022)
*
Margarita Caca-Nikolovska (, 2011–2020, vice-president 2015–2020)
*
Giovanni Grasso
Giovanni Grasso (11 November 1888 – 30 April 1963) was an Italian stage and film actor. He appeared in more than 80 films between 1910 and 1955. He was born and died in Catania, Sicily, Italy. Born into a family of marionettists, he was ...
(, 2016–2020)
*
Constance Grewe (, 2004–2016)
*
David Feldman (, 2002–2011)
*
Joseph Marko (, 1997–2002)
*
Louis Favoreu (, 1997–2002)
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
Mirsad Ćeman (born 1955 in Miljanovci, Tešanj) is a Bosnian lawyer and politician, judge of the Constitutional Court of Bosnia and Herzegovina. He declared ethnic affiliation as a Bosniak.
Biography
Ćeman graduated in Law from the Universi ...
(former longtime 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.
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.
[Constitutional Court of Bosnia and Herzegovina, U-5/98 (Partial Decision Part 3), p. 36, ]Sarajevo
Sarajevo ( ; cyrl, Сарајево, ; ''see names in other languages'') is the capital and largest city of Bosnia and Herzegovina, with a population of 275,524 in its administrative limits. The Sarajevo metropolitan area including Sarajevo ...
, 1 July 2000
The formal name of this item is ''U-5/98'', but it is widely known as the "Decision on the constituency of peoples" ( sh, Odluka o konstitutivnosti naroda), 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
*
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
*
Constitutionalism
Constitutionalism is "a compound 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".
Political organizations are constitutional ...
*
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of econo ...
*
Jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
*
Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
*
Rule of law
*
Rule According to Higher Law
References
External links
Constitutional Court of Bosnia and HerzegovinaConstitution of Bosnia and Herzegovina
{{DEFAULTSORT:Constitutional Court Of Bosnia And Herzegovina
Law of Bosnia and Herzegovina
Bosnia
Bosnia and Herzegovina
Bosnia and Herzegovina ( sh, / , ), abbreviated BiH () or B&H, sometimes called Bosnia–Herzegovina and often known informally as Bosnia, is a country at the crossroads of south and southeast Europe, located in the Balkans. Bosnia and H ...
Courts and tribunals established in 1964
1964 establishments in Yugoslavia