The Constitutional Court held today its 113th ordinary session at which it considered requests for review of constitutionality and appeals.
In Case U-21/18, in deciding on the request lodged by Mr. Mladen Bosic, Chair of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina at the time of filing the request, for review of constitutionality of the provisions of Article 48 and Article 48a of the Law on Amendments to the Law on Agricultural Cooperatives (Official Gazette of the Republika Srpska, 106/09 and Official Gazette of the Republika Srpska, 78/11), the Constitutional Court established that the contested provisions of the Law on Amendments to the Law on Agricultural Cooperatives were compatible with Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court concluded that the contested provisions of the mentioned Law were not in violation of the principle of proportionality, the reason being that (although agricultural cooperatives, by accepting the obligation to conclude the encumbered lease agreement, are objectively placed in a more difficult position than the one they were in under the previous legal arrangements), the principle of public interest prevails over this principle and that principle consists of conversion of property, and, as such, it complies with the principle of "wide margin of appreciation" of the competent legislature.
In case no. no. U 24-18, the Constitutional Court rejected as inadmissible the request filed by 27 representatives in the House of Representatives of the Parliament of the Federation of Bosnia and Herzegovina for review of the constitutionality of the Instruction Amending the Instruction on the Procedure for Administering Indirect Elections for the Bodies of Authority in Bosnia and Herzegovina under the BiH Election Law (Official Gazette of BiH, 91/18), since the Constitutional Court of Bosnia and Herzegovina is not competent to take a decision.
The Constitutional Court concluded that the impugned Instruction on Amendments is an implementing regulation, passed by the CEC in order to implement the Election Law in the process of administering indirect elections for the bodies of authority in Bosnia and Herzegovina, which determined the preliminary number of delegates to the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina to be elected from cantonal assemblies. Accordingly, and taking into account the fact that it concerns a temporary provision, the Constitutional Court concludes that in the present case it is not about a general act the constitutionality of which could by reviewed by the Constitutional Court within the meaning of Article VI(3)(a) of the Constitution of Bosnia and Herzegovina. Moreover, taking into account the content of the request in the case at hand and Article 31 of the Rules of the Constitutional Court, the Constitutional Court does not find any reason why the impugned implementing act of the CEC would raise an issue of violation of human rights and fundamental freedoms. Therefore, the Constitutional Court, taking into account the mentioned circumstances and in particular the jurisprudence related to interpretation of its jurisdiction, concluded that it is not competent to decide on the review of constitutionality of the impugned act of the CEC within the meaning of Article VI(3)(a) of the Constitution of Bosnia and Herzegovina.
In case no. AP-1180/15, the Constitutional Court concluded that there is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention, because the decisions of the regular courts, when establishing the amount of the pecuniary damage for the confiscated machines and equipment, interpreted and applied all the relevant factors exclusively to the detriment of the appellants, which resulted in the fact that the respective proceeding cannot be regarded as fair “in entirety” within the meaning of the standard to a fair trial.
In case no. AP-2916/16, the Constitutional Court concluded that the challenged judgments are in violation of the appellant’s right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms as the ordinary courts, when deciding on the case, disregarded the constitutional obligation of direct application of the European Convention for the Protection of Human Rights and Fundamental Freedoms and binding decisions of the European Court of Human Rights and Constitutional Court of Bosnia and Herzegovina (in regards to the compensation in cases concerning military apartments). Therefore, such an interference with the appellant’s right to peaceful enjoyment property cannot be regarded as “lawful”.
All decisions taken at the session today will be delivered to the appellants within one month time limit and will be published as soon as possible on the official website of the Constitutional Court of Bosnia and Herzegovina.
