International Conference "The Constitutional Court: between Negative Legislator and Positive Activism - 50th Anniversary of the Constitutional Justice in Bosnia and Herzegovina

Sarajevo, 26 March 2014

Madam President of the Constitutional Court, dear Madam Galić, honourable judges, excellencies, ladies and gentlemen,

It is a great honour and a real pleasure to be here today to mark this important anniversary of the Constitutional Court of Bosnia and Herzegovina. As the representative of the Secretary General of the Council of Europe, the oldest and largest pan-European organisation I would like to convey to you warm congratulations and best wishes from Mr Thorbjørn Jagland. I would also like to express my personal gratitude to you, Madam President, for extending an invitation to me to be with you on such an important day.

The anniversary of the Constitutional Court of Bosnia and Herzegovina is a significant occasion to remember the fundamental role that the judges of the Constitutional Court have played in safeguarding the fundamental human rights and freedoms enshrined in the European Convention of Human Rights and in the national Constitution as well as to emphasise good practices in this field. It is also an important occasion to explore further possibilities of cooperation with the Council of Europe aimed at enhancing the culture of human rights in this country.

The Constitutional Court of Bosnia and Herzegovina has stood at the forefront of this development.

It is with pride that the judges of the Constitutional Court can look back on the numerous cases in which their legal analysis and sound judgment have been subsequently confirmed by the European Court of Human Rights. Indeed, this is also true for those who were judges in the Human Rights Chamber and the Human Rights Commission . Remember, among many others, the important case of Karanović , the case of Šekerović and Pašalić  and the pilot case of Suljagić , where the European Court confirmed the reasoning of the Human Rights Chamber and its successor the Constitutional Court, which already found the same violations of the Convention. All these cases testify to the great expertise of the Constitutional Court of Bosnia and Herzegovina.

It is interesting to note that in all these cases, the Constitutional Court ordered implementation of general measures aimed at preventing similar violations. Nevertheless, the competent authorities failed to abide by these orders. It was this disrespect of judicial authority which compelled the individuals concerned to come to Strasbourg and seek justice before the European Court of Human Rights. Enforcement of the judicial decisions in Bosnia and Herzegovina has since been a key area for the Council of Europe and for its Committee of Ministers when it supervises the execution of the judgments of the Strasbourg Court.

I would like to stress that ensuring efficient implementation of judicial decisions, including those of the Constitutional Court,  is an essential element not only of the rule of law, but also of the principle of subsidiarity, the importance of which has now been further emphasised through Protocol N°15. Pursuant to this fundamental principle for the functioning of the Convention system, it is the member states which have the primary responsibility to secure the rights and freedoms enshrined in the Convention.

Let me recall in this respect that Bosnia and Herzegovina used to be a beneficiary country in the Human Rights Trust Fund project aimed at removing obstacles to the enforcement of domestic judgments. The project ran for three years from 2009 to 2012. The activities under this project and the ensuing measures taken by the authorities made it possible for the Committee of Ministers to close its examination of many important cases, such as Jeličić , Karanović and Šekerović and Pašalić.  This experience confirms what we have seen in many other contexts, namely that structured and streamlined cooperation between national authorities and the Council of Europe is a major asset in resolving difficult issues linked to human rights and the rule of law – indeed to democracy.

Madam President,

I would like also to point out that Bosnia and Herzegovina is a country which is investing its best efforts to implement international standards in safeguarding human rights. Apart from some notorious cases, such as Sejdić and Finci , the authorities are doing their best to tackle sometimes very complex issues. I would like to refer in this respect to the swift reaction of the authorities of Bosnia and Herzegovina in the cases of Al Husin  and Al Hamdani . These cases concern the politically sensitive issue of the detention of former mujahedeen fighters on security grounds in the absence of a deportation order. The authorities of Bosnia and Herzegovina rapidly secured legislative amendments ensuring that no such detention is possible in practice before the issuance of deportation orders.

It should also be noted that all judgments of the European Court of Human Rights concerning Bosnia and Herzegovina are translated into the three official languages of the country and published in the Official Gazette. They can also be found online on the website of the Government Agent. This is certainly an example of good practice, as wide dissemination of the judgments of the European Court of Human Rights in languages spoken by the population is conducive to raising awareness on the fundamental human rights and freedoms enshrined in the Convention and enhancing human rights culture in the country.

Madam President,

At the end of my intervention, I would like to stress that the Council of Europe will always be ready to extend technical assistance and other cooperation activities relevant for the respect of human rights, the rule of law and democracy. In this respect, on behalf of the Council of Europe, the Secretary General and on my personal behalf, let me once again congratulate you and all distinguished judges of the Constitutional Court with this anniversary. I trust that the Constitutional Court will remain a vigorous guardian of the Convention standards in Bosnia and Herzegovina and I am looking forward to exploring further possibilities for cooperation between the Council of Europe and Bosnia and Herzegovina, including with the Constitutional Court.

I wish you many happy years of service for the benefit of citizens of this country and for Europe.

Thank you!