The Constitutional Court of Bosnia and Herzegovina decided on a number of requests for review of constitutionality and appeals lodged for alleged violation of human rights and fundamental freedoms on the second day of its 95th plenary session.
For the illustration purposes, we highlight the following with regards to the work of the Constitutional Court of Bosnia and Herzegovina at its 95th plenary session:
In case no. AP 2052/12, the appellant, Mr. Zdravko Maric from Bratunac, in an appeal lodged with the Constitutional Court of Bosnia and Herzegovina, claimed that the impugned decisions were in violation of the right under Article II(3)(e), (f), (k) and (m) of the Constitution of Bosnia and Herzegovina and Article 6(1) and Article 8 of the European Convention and Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 of the European Convention.
The appellant was of the opinion that his rights had been violated because, as he claimed, the administrative bodies and Cantonal Court had established the facts in an arbitrary and erroneous manner, i.e. that they had arbitrarily interpreted the relevant provisions of the Law on Cessation of Application of the Law on Abandoned Property when they had concluded that he was not entitled to the repossession of the apartment in question.
Having examined the appeal, the Constitutional Court concluded that there was a violation of the 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, where the competent authorities and the court, in the circumstances of the case at hand and while interpreting the relevant provision of the substantive law, reached an arbitrary conclusion which resulted in depriving the appellant of his property in a manner in which the standard of lawful interference was not satisfied. Accordingly, the Constitutional Court granted the appeal of Zdravko Maric and quashed the judgment of the Cantonal Court of Sarajevo, no. 09 0 U 001407 08 U of 3 April 2012.
The Constitutional Court referred the case back to the Cantonal Court in Sarajevo, which is obligated to take a new decision under expedited procedure in line 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.
In case no. AP 3312/12, the Constitutional Court partially granted an appeal of Mr. Mladen Milic from Banja Luka and found 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 for the Protection of Human Rights and Fundamental Freedoms and quashed the verdict of the Court of Bosnia and Herzegovina, no. S1 2 K 002735 12 Krz3 of 23 April 2012, in the part related to the application of substantive law with regards to the criminal offence of war crime against civilians referred to in Article 173(1)(c) of the Criminal Code of Bosnia and Herzegovina.
The Constitutional Court noted in its decision that the fact that the verdict of the Court of Bosnia and Herzegovina, no. S1 2 K 002735 12 Krz3 of 23 April 2012, was quashed in the part as referred to in the previous paragraph shall not have any impact on depriving the appellant of liberty, holding or detaining him, which falls under the exclusive jurisdiction of the Court of Bosnia and Herzegovina. The Constitutional Court of BiH referred the case back to the Court of Bosnia and Herzegovina, which is to follow an expedited procedure and take a new decision in accordance with the standards laid down in this decision, and in accordance with Article II(3)(e) of the Constitution of Bosna and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedom.
Furthermore, the Constitutional Court dismissed as ill-founded the appeal in relation to other aspects of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
In particular, in verdict of the Court of BiH, no. S1 1 k 002735 11 Krl of 28 October 2011, the appellant was found guilty of the criminal offence of crime against civilians referred to in Article 173(1)(c) of the Criminal Code of Bosnia and Herzegovina in conjunction with Article 180(1) of the CCBiH and the first-instance court sentenced him to 10 years’ imprisonment.
In the appeal lodged with the Constitutional Court, the appellant claimed that the impugned verdicts were in violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and right to private and family life under Article II(3)(f) of the Constitution of BiH and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The appellant is of the opinion that the ordinary courts adopted erroneous conclusions as to the appellant’s responsibility for the criminal offence as all presented evidence led to the same conclusion, namely that the Court of BiH should have acquitted the appellant of criminal accountability. The appellant also referred to the appeal against the first-instance verdict and is of the opinion that the appeal should have been granted and the appellant should have been acquitted of criminal responsibility as the appellant is not the perpetrator of the criminal offence. According to the appellant, he could not be responsible for the act committed by another person. He therefore refers to the violation of the principle in dubio pro reo.
Having examined the appeal, the Constitutional Court concluded that there had been 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 for the Protection of Human Rights and Fundamental Freedoms as the reasoning of the challenged judgements, as regards the mandatory application of the more lenient law was reduced to the application of the CC BiH and CC SFRY exclusively with regard to the consideration of which of the two abovementioned laws stipulated more severe sanction for the perpetrator (the appellant), given that the main argument was that the CC SFRY stipulates (also) the death penalty for the said criminal offence. Neither of the two Division Panels of the Court of BiH which decided on this case had given the reasoning which of the two of the above laws stipulated more lenient sanction for the criminal offence of war crimes against civilians. That, in the opinion of the Constitutional Court, was mandatory in the view of tendency of the Court of BiH to decide on more lenient punishment for the appellant (since the pronounced sentence was below the legally prescribed minimum) and, exactly for that reason, it was necessary to compare Article 173 of the CC BiH and Article 142 of the CC SFRY, i.e., to the present the reasoning for which of the two laws stipulate (also) more lenient sanction for the appellant, and then to decide which law is more lenient from the aspect of the legally prescribed minimum of the sanction provided for and, accordingly, to apply more lenient law.
The Constitutional Court also concluded that the violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and (2) of the European Convention had not occurred, given that there was nothing in the challenged judgements that would indicate the arbitrariness in the establishment and evaluation of facts in terms of the appellant’s criminal liability as well as the violation of in dubio pro reo principle. During the entire course of proceedings the appellant had the professional legal aid, thus, he was not brought to unequal position in relation to the other party by any means whatsoever.
All decisions on the requests for review of constitutionality and appeals that were taken at the session shall be submitted to the applicants and appellants within a time-limit of one month and posted on the official website of the Constitutional Court of Bosnia and Herzegovina.
