[A] judgment [...] is not an end in itself, but a promise of future change, the starting point of a process which should enable rights and freedoms to be made effective!
The foregoing is a statement made by a distinguished judge of the European Court of Human Rights, Françoise Tulkens from Belgium, in Dialogue between judges, Council of Europe, Execution and effects of judgments of the European Court of Human Rights: the role of the judiciary.
Indeed, not a single decision of the Constitutional Court of Bosnia and Herzegovina is an end in itself. Each decision of the Constitutional Court that has determined unconstitutionality or a violation of individual or collective human rights and fundamental freedoms is a promise of future change, that is, an act of not allowing the changes to happen if they are unconstitutional. A decision is indeed the starting point of a process that should enable the rights and freedoms determined in the Constitution of BiH and the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols that have supremacy over all other laws, to be made effective.
The foregoing implies that a decision of the Constitutional Court of BiH has a value only if it is enforced, because it is only then that its consequences ensue and its purpose is achieved. An appellant or an applicant requesting constitutional review will have achieved the goal for which the appeal or request was lodged only with the enforcement of a decision of the Constitutional Court.
Compliance with the arguments contained in the reasons of the Constitutional Court’s decisions ensures their high-quality enforcement and is not just essentially important for the protection of human rights and freedoms, but also favors good administration and promotes the constitutional principle of the rule of law. For the enforcement of the Constitutional Court’s decisions it is, therefore, necessary to establish a model of responsibility through cooperation of all levels of government. A complete implementation of the Constitutional Court’s decisions ensures its authority in the society. The media also play an important role in the building of that respect. The more the society respects the Constitutional Court as an institution, the more difficult it becomes for political stakeholders and other competent public authorities to disregard its decisions. In a well-functioning democratic state with strong guarantees of human rights and rule of law, political stakeholders naturally respect the decisions and reasons of a Constitutional Court, even if they have an effect on the interests of the ruling politicians and political parties.
For that reason it is necessary that all levels of government in BiH are constantly on alert for the sake of achieving the common goal and interest of all its citizens, that is, the protection and fulfillment of the constitutional obligation under Article I(2) of the Constitution of BiH – Bosnia and Herzegovina as a democratic state. Finally, it should always be borne in mind that the Constitutional Court’s decisions shall be final and binding pursuant to Article VI(5) of the Constitution of BiH, and that the non-compliance with the referenced constitutional provision makes illusory the protection of human rights and freedoms and the rule of law in Bosnia and Herzegovina.
In addition to the foregoing, one should also not lose sight of the consequences of non-enforcement of the Constitutional Court’s decisions when it comes to the reputation of the State of Bosnia and Herzegovina in the world and the interest of all its citizens and, finally, the financial effects of the non-enforcement. In other words, citizens may file an application with the European Court of Human Rights because of the non-enforcement of the Constitutional Court’s decisions and they have been doing it for quite some time now. As a rule, when that Court finds that a decision of the Constitutional Court has not been enforced without a justified reason, it determines a new violation of the rights of the applicant and, again as a rule, awards compensation of non-pecuniary damage for a violation of the applicant’s rights caused by the failure to enforce the Constitutional Court’s decision. This implies a large amount of money that would be more wisely spent on the enforcement of the Constitutional Court’s decision, that is, on the funding of the law-enforcement, judicial, health care, and education authorities, etc. Each time the European Court finds a of a violation of the rights and freedoms of the citizens of BiH as a result of non-enforcement of decisions taken on the citizens’ appeals with the Constitutional Court, this places Bosnia and Herzegovina higher on the list of countries where human rights and freedoms are jeopardized also by the non-enforcement of the Constitutional Court’s decisions. This additionally damages the country’s global reputation.
For that reason, the Constitutional Court of BiH additionally contributes to the enforcement of its own decisions by providing even greater transparency of its work. Therefore, on the Constitutional Court’s website you may examine the summary of all decisions adopted by the Court in the cases of abstract review of constitutionality, with breakdown by all levels of government. These are as follows: the State of Bosnia and Herzegovina, the Entity of the Federation of Bosnia and Herzegovina, the Entity of the Republika Srpska, the Brčko District of Bosnia and Herzegovina, and the cantons in the Federation of Bosnia and Herzegovina. Thus, it is possible to see whether a decision has been enforced and, if not, at which stage the enforcement procedure is or whether this involves a non-enforcement.
We hope that this summary will meet our expectations that are we have of the professional community, investigative journalists, members and delegates in the parliaments of all levels of government and the executive authorities, as well as the other competent government bodies. We therefore wish all of us a success in the future work on the enforcement and the assistance in the enforcement of the decisions of the Constitutional Court of BiH!
