56 years since the Constitutional Court of BiH was constituted, and established in May 1997 after Dayton

SARAJevo, (Patria) - Precisely these days, while attacks on the Constitutional Court of BiH are ongoing, its decisions are not being respected, and a part of the political community in BiH is calling for its reorganization, the Constitutional Court is marking the 56th anniversary of its constitution based on the 1963 Constitution, which was also retained by the later 1974 Constitution. This Constitutional Court primarily had jurisdiction in abstract normative control, such as deciding on the conformity of (republican) laws with the Constitution and on the constitutionality and legality of other regulations and general self-management acts, as well as resolving disputes between the Republic and other socio-political communities, and conflicts of jurisdiction between courts and bodies of socio-political communities. The Law on the Constitutional Court regulated issues of organization, jurisdiction, and procedure before this Constitutional Court.

Viewed from a historical perspective and the problems of transition in socialist countries, Bosnia and Herzegovina is one of the rare examples that can be found in the history of constitutional courts, as the former Yugoslavia is the only country that had a system of constitutional courts even during the socialist regime. The first Constitutional Court in the former Yugoslavia was established in 1963, which is also the starting point of the history of constitutional judiciary in this country. In line with the federal structure, in addition to the Constitutional Court at the federal level, six republics, and even two autonomous provinces – Kosovo and Vojvodina, also had their own constitutional courts before the dissolution of the former SFRY.

Constitutional Court of BiH after the Dayton Peace Agreement

The Constitution of Bosnia and Herzegovina (as Annex 4 of the General Framework Agreement for Peace in Bosnia and Herzegovina), which entered into force on December 14, 1995, provides the constitutional and legal framework for the establishment and functioning of the Constitutional Court on completely new political and legal foundations compared to the previous period.

First and foremost, the Preamble of the Constitution of Bosnia and Herzegovina details the fundamental normative principles, such as respect for human dignity, freedom, and equality; peace, justice, tolerance, and reconciliation; and democratic bodies of authority and fair procedures as the best means for creating peaceful relations within a pluralistic society. Then, Article II of the Constitution not only contains the broadest catalogue of human rights and fundamental freedoms but also declares the European Convention for the Protection of Human Rights and Fundamental Freedoms directly applicable in Bosnia and Herzegovina. Furthermore, the Convention has priority over all other laws.

The institution of the Constitutional Court is established by Article VI of the Constitution, which regulates its jurisdiction, organizational structure, procedures, and the finality and binding nature of its decisions. By defining the normative prerequisites for entering the democratic political system and modifying the internal structure of the state, the Constitution has thus innovated the constitutional status of the Constitutional Court and made it compatible with the standards of constitutional judiciary – both as an independent guardian of the Constitution and as an institutional guarantor for the protection of human rights and freedoms established not only by the catalogue in Article II of the Constitution but also by the instruments of Annex I of the Constitution of Bosnia and Herzegovina.

Structure of the Constitutional Court of BiH

The Constitutional Court consists of nine judges, of whom six judges are elected by the parliaments of the entities (the House of Representatives of the Federation of Bosnia and Herzegovina elects four, and the National Assembly of Republika Srpska elects two), and the remaining three are elected by the President of the European Court of Human Rights, after consultations with the Presidency of Bosnia and Herzegovina. Prominent legal professionals of high moral standing can be elected as judges of the Constitutional Court. Anyone who meets such qualifications and has the right to vote can be a judge of the Constitutional Court. Judges elected by the President of the European Court of Human Rights cannot be citizens of Bosnia and Herzegovina or any neighboring country. The mandate of judges appointed in the first convocation is five years, unless they resign before that or are removed for just cause by the consensus of the other judges. Judges of subsequent convocations can hold their positions until the age of 70, unless they resign before that or are removed by the consensus of the other judges.

The Court was established after the election and appointment procedures were completed, with the first session of the Constitutional Court in May 1997. The main task of this session was to make the Court operational. The Rules of Procedure were adopted at a session held on July 29, 1997. In the meantime, the Rules of Procedure have been amended and supplemented six times, until the Court adopted the Rules of the Constitutional Court of Bosnia and Herzegovina at a session held on July 23, 2005. These Rules were in force until April 2014, when new Rules entered into force. The Constitutional Court elects its president and three vice-presidents from among the judges by secret ballot. The Presidency of the Court, i.e., the president and three vice-presidents, are elected on a rotational basis. The mandate of the President of the Court lasts for three years. The Court's Rules also contain provisions on disqualification and immunity. The function of a judge is incompatible with membership in a political party or political organization in Bosnia and Herzegovina, membership in the legislative, executive, or other judicial authorities in Bosnia and Herzegovina or the entities, or with any other function that may affect the impartiality of a judge.

A judge may be dismissed before the end of their term if they request it, if they are sentenced to imprisonment, if they permanently lose the ability to perform their duties, or if they perform public or professional duties incompatible with the function of a judge of the Constitutional Court. The Court determines the existence of grounds for dismissing a judge before the end of their term, given that judges can be dismissed based on the consensus of the other judges. The Court realizes its organization and activities on the principle of financial independence.

A majority of all members of the Court constitutes a quorum. The Court makes decisions by a majority vote of all members in the Plenary Session and the Grand Chamber. The Minor Chamber, consisting of the President of the Constitutional Court and two Vice-Presidents, decides unanimously on interim measures. Decisions of the Constitutional Court are final and binding and are published in the "Official Gazette of Bosnia and Herzegovina" and in the official gazettes of the entities and Brčko District.

The seat of the Constitutional Court is in Sarajevo.