In general

The Constitutional Court is a domestic institution of appellate jurisdiction in the view of the rights and freedoms guaranteed by the Constitution of Bosnia and Herzegovina, and in that sense, regardless of the fact that the proceedings were not finalized, it has to point out violations of rights guaranteed by the European Convention and the Constitution of Bosnia and Herzegovina.
•    Decision No. U 34/01 of 22 June 2001, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 20/01; the criminal proceedings were not conducted by the  court  established  under  law;  the  proceedings  initiated  upon an objection as to the subject matter jurisdiction; the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The rule that the time-limit should be calculated from the date on which the judgment was communicated to the defendant and not to his attorney cannot be considered to be of such a nature as to raise an issue of violation of Article 6 paragraph 1 of the European Convention.
•    Decision No. U 36/01 of 3 November 2001, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 7/02; criminal proceedings, a time limit on pursuing a legal remedy; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The ordinary courts’ failure to resolve a plea of immunity, as an important preliminary issue in the criminal proceedings, constitutes a violation of the appellant’s right to a fair trial.
•    Decisions Nos. U 59/01, U 60/01 and U 61/01 of 10 May 2002, published in the Official Gazette of Bosnia and Herzegovina, 24/02;  the criminal proceedings; immunity; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established;
•    Decision on Admissibility and Merits No.  AP 412/04 of 29 October 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 19/05; the criminal proceedings; a plea of immunity, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The legislative body must not regulate the statute of limitations in a manner which would result in an essential impossibility or unjustified difficulties in the exercise of the rights in question, but this mechanism is necessary to secure legal certainty.
•    Decision on Admissibility and Merits No. U 158/03 of 22 September 2003, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 5/05

Even if some rights could clearly be classified as being in the field of public law which falls outside the scope of Article 6 of the European Convention, it is necessary to secure, within the national framework, the minimum procedural guarantees of the conduct of proceedings in accordance with Article 6 of the European Convention, and the ultimate obligation falls particularly on judicial bodies which have the constitutional obligation, regardless of the character of the dispute, to secure full compliance with the requirements of Article 6 of the European Convention.
•    Decision No. U 148/03 of 28 November 2003, paragraph 51, published in the Official Gazette of Bosnia and Herzegovina, 1/04; administrative proceedings and administrative dispute; the application of Article 6 in the proceedings related to customs duties, a violation of Article 6 of the European Convention and Article II(3) of the Constitution of BiH established

The European Convention protects, in principle, individuals, non-governmental organizations or associations of citizens. Therefore, Article 6 of the European Convention does not provide for the protection for the state authorities and institutions vested with public powers. Moreover, the European Convention stipulates that state authorities at all levels are obliged to act in accordance with the rights and obligations mentioned therein. Consequently, the Constitutional Court holds that the appellant (the Federal Ministry of Defence) does not enjoy the protection under Article 6 paragraph 1 of the European Convention.
•    Decision No. U 5/02 of 21 January 2004, paragraph 25, published in  the Official Gazette of Bosnia and Herzegovina, 6/04; administrative proceedings, the repossession of the apartment; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The dispute concerns an economic issue and it falls within the scope of Article 6 paragraph 1 of the European Convention in case where the appellant is entitled to seek in accordance with laws the repayment of the overpaid customs levy, which is to be deemed his property and which embodies a “civil right”. In view of the above, the Constitutional Court concludes that Article 6 of the European Convention is applicable to the present case.
•    Decision No. U 46/03 of 23 April 2004, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 38/04; administrative proceedings and administrative dispute on the repayment of the overpaid levies

The appellant has not stated any procedural error or irregularity that might have an effect on the fairness of the proceedings, nor is there any other element that might make it unfair. Contrary to the allegations stated in the appeal, the case file reveals that the appellant was given the possibility to represent his interests in all proceedings at all levels and, based on the fully clear reasons stated in the challenged decisions enacted in accordance with law, it may be concluded that there are no evidence that the courts acted unfairly or contrary to Article 6 paragraph 1 of the European Convention.
•    Decision on Admissibility and Merits No. U 61/03 of 19 March 2004, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 15/04;
•    Decision on Admissibility and Merits No. U 68/03 of 17 May 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 34/04;
•    Decision on Admissibility and Merits No. U 105/03 of 26 August 2004, paragraphs 24 and 25, published in the Official Gazette of Bosnia and Herzegovina, 48/04;
•    Decision on Admissibility and Merits No. AP 910/04 of 15 June 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 73/05
 
The Constitutional Court’s task is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Judgment by the European Court of Human Rights in the case of Doorson vs. the Netherlands, 26 March 1996, Reports on Judgments and Decisions 1996-II, paragraph 67).
•    Decision on Admissibility and Merits No. AP 71/02 of 28 April 2004, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 34/04; non- contentious proceedings to issue an order cancelling the lease agreement related to the business premises at issue

There is no violation of the right to a fair trial in the situation where the appellants’ claims were dismissed for a failure to comply with the legal time-limit.
•    Decision No. AP 28/02 of 15 June 2004, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 38/04; administrative proceedings for repayment of money paid for special customs duties

As to the issue of witnesses and evidence, Article 6 paragraph 1 of the European Convention does not require that the court deals with all arguments put forward by the parties during the course of proceedings, but only with those the court considers to be relevant. The court has to take into account the arguments of the parties to the proceedings, but there is no need for all of them to be reflected in the reasoning of the judgment (see Constitutional Court, Decision No. U 62/05 of 5 April 2002, paragraph 19, the Official Gazette of Bosnia and Herzegovina, 24/02). Discretionary power enjoyed by each court contributes to the efficient conduct of the proceedings.
•    Decision on Admissibility and Merits No. AP 45/02 of 30 June 2004, paragraph 63, published in the Official Gazette of Bosnia and Herzegovina, 41/04; the transfer of the occupancy right from the grandfather to the grandson, the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In the course of evidentiary proceedings, the County Court heard the criminal intelligence service authorized officers and the relevant investigative judge, who explicitly claimed that the appellant had presented his defence and admitted the crime without being subjected to compulsory powers or threat. In addition, the investigative judge’s conclusion was based on his direct observations of signs of physical coercion or a fear of the accused. Consequently, there is no violation of the right to a fair trial.
•    Decision on Admissibility and Merits No. U 50/03 of 21 July 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 41/04

The Constitutional Court holds that the appellant had the opportunity in the course of proceedings as a whole to present all evidence serving to establish the facts decisive in rendering the court judgments. Furthermore, the courts took into account all allegations and assertions and examined the appellant’s claims on the basis of applicable legal provisions and provided sufficiently clear reasons for their decisions within the meaning of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention. In the view of the Constitutional Court there is no indication that the proceedings were conducted unfairly nor is there any indication of any procedural violations as regards the respect of the principle of fair trial.
•    Decision on Admissibility and Merits No. AP 91/02 of 23 July 2004, paragraph 20, published in the Official Gazette of Bosnia and Herzegovina, 43/04;
•    Decision on Admissibility and Merits No. AP 152/02 of 15 June 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 40/04

Given that the appellant, in his appeal, complains of a violation of his right to a fair trial based on the improper composition of the court of first instance and given that there are no other indications that the court proceedings were conducted unfairly, the Constitutional Court concludes that there is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention.
•    Decision on Admissibility and Merits No. AP 216/03 of 29 September 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 54/04
There is no violation of the right to a fair trial on the ground that the appellants had no opportunity to question the expert at the main trial.
•    Decision on Admissibility and Merits No. AP 280/03 of 27 October 2004, published in the Official Gazette of Bosnia and Herzegovina, 54/04

The fairness of the proceedings is assessed on the basis of the proceedings as a whole.
•    Decision onAdmissibility and Merits No. AP 381/04 of 27 October 2004, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, the facts established by the court of first instance are challenged; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
•    Decision on Admissibility and Merits No. AP 404/04 of 23 March 2005, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 32/05; the proceedings to establish the amount of compensation; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The ordinary court’s decision not to merge the litigations does not constitute a violation of the right to a fair trial, as it relates to the procedural decision taken by the court pursuant to the Civil Procedure Code.
•    Decision on Admissibility and Merits No. AP 289/04 of 30 November 2004, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 19/05

The ordinary court’s interpretation related to the appellant’s disapproval in respect of the gift agreement does not constitute a violation of the right to a fair trial under Article II(3)(e)of the Constitution of BiH and Article 6 paragraph 1 of the European Convention.
•    Decision on Admissibility and Merits No. AP 545/03 of 17 December 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 34/05; the cancellation of the gift agreement based on the disapproval

There is an excessive burden placed on individuals by the legal provision stipulating that the claims which are established in the legally binding court judgments will be settled by issuing of bonds with the maturity date of up to 50 years which justifiably imposes the question whether any of the citizens who will possess such type of bonds will live to charge these bonds and thus exercise their rights.
•    Decision on Admissibility and Merits No. AP 288/03 of 17 December 2004, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 8/05; delayed enforcement of the legally binding court judgments of the Republika Srpska

The fact that the ruling terminating the appellant’s employment, on the basis of which his employment contract ceased ex lege, was delivered to the appellant after he had finished serving his prison sentence does not in itself constitute a breach of the right to a fair trial since the appellant had and used the legal remedies stipulated for the protection of his rights.
•    Decision  on Admissibility  and  Merits  No. AP 119/04  of  9  December  2004, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 15/05

The consideration of the validity of indictment and evidence collected without an investigative judge is irrelevant where the indictment has already entered into force and the appellant has failed to file an objection in order to correct any possible failures in proceedings before the ordinary courts with regard to the lawfulness of the indictment.
•    Decision on Admissibility and Merits No. AP 476/04 of 17 December 2004, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 34/05; criminal proceedings, compensation of the costs of the criminal proceedings, there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The public interest in terms of the limitation of the right by regulation of certain time limits is reflected in the efficient functioning of the legal system and legal certainty; the appellant’s failure to comply with the legally prescribed time limits, prevented the ordinary courts to decide on the merits of the appellant’s claim, which is not in opposition to the requirements set out in Article 6 paragraph 1 of European Convention.
•    Decision on Admissibility  and Merits No. AP 150/04 of  17 February  2005, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 36/05

Enforcement of a judgment issued by any court should be considered as an integral part
of the “trial” within the meaning of Article 6 of the European Convention.
•    Decision on Admissibility and  Merits No. AP 464/04 of 17 February 2005, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 40/05; impossibility to enforce the legally binding court decision awarding compensation for non-pecuniary damages suffered due to the death of the appellants’ family member, access to courts; a violation of Article 6 of the European Convention and Article II(3)
(e) of the Constitution of BiH established

The appellant’s assertions that the court of first instance failed to establish the facts correctly and completely do not give rise to a constitutional issue falling within the Constitutional Court’s jurisdiction.
•    Decision on Admissibility and Merits No. AP 74/04 of 23 March 2005, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 27/05

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in case where the ordinary courts in the relevant case used evidence collected by the judicial and police authorities of the Federal Republic of Germany as transfer of evidence is based on the bilateral agreement between former SFRY and the Federal Republic of Germany.
•    Decision on Admissibility and Merits No. AP 91/04 23 March 2005, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 30/05

The appellant’s complaints relating to a violation of his right to a fair trial due to the Supreme Court’s failure to answer all the allegations stated in the appeal, are ill-founded given that the Supreme Court’s judgment contains the sufficient reasons and explanations affirming the dismissal of the appellant’s appeal as well as the essential reasons on the basis of which the Supreme Court upheld the Count Court’s judgment.
•    Decision on Admissibility and Merits No. AP 108/04 of 23 March 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 30/05

The appellant had the opportunity to exercise his employment rights in court proceedings in two jurisdictions. The courts carried out evidentiary proceedings and the appellant took part in those proceedings so he could present his position in respect of the decisive facts. The courts gave the clear and sufficient reasons for their decisions.
•    Decision on Admissibility and Merits No. AP 351/04 of 23 March 2005, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 32/05; the decertified police officer

There is no violation of the right to a fair trial in case where the public powers are exercised ex officio, as stipulated by the law, in order to corroborate evidence presented in court proceedings with regard to the question whether the former rulings constituting certain rights were rendered in accordance with the law, which embodies the special procedure dealing exclusively with the legal issues and not with the establishment of the facts.
•    Decision on Admissibility and Merits No. AP 556/04 of 15 June 2005, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 69/05; administrative proceedings, the determination of the right to family disability allowance; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in case where the ordinary courts in the relevant case, while deciding on a motion of immunity, establish that the disputed statement of the holder of immunity, in abstracto, exceeds the framework of activities for which he was granted immunity under the positive legal regulations.
•    Decision on Admissibility and Merits No. AP 963/05 of 22 July 2005, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 57/06

The principles of the right to a fair trial relate also to the proceedings where the right to immunity is to be decided given that, in case where the request for immunity is dismissed and civil proceedings are continued, the issue of immunity cannot be raised any longer. In view of the above, the Constitutional Court holds that the appeal in this case is admissible as to the right under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention, although the final decision has not yet been taken in civil proceedings.
•    Decision on Admissibility and Merits No. AP 963/05 of 22 July 2005, paragraph 20, published in the Official Gazette of Bosnia and Herzegovina, 57/06;
•    Decision on Admissibility and Merits No.  AP 412/04 of 29 October 2004, paragraph 18; published in the Official Gazette of Bosnia and Herzegovina, 19/05; the motion of immunity raised as a preliminary issue

The appellants’ right to a fair trial is not breached since they had the opportunity to present their allegations, facts and evidence in court proceedings in three jurisdictions and the court judgments are the result of the court’s impartial and independent efforts. In addition, the court’s interpretation of the legal provisions is not arbitrary.
•    Decision on the Merits No. AP 972/04 of 13 September 2005, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 3/06;
•    Decision on the Merits No. AP 1073/04 of 13 September 2005, paragraph 20 et seq., published in the Official Gazette of Bosnia and Herzegovina, 94/05

The ordinary courts offered the complete and clear reasoning for their decisions in the relevant case where they decided that the legal requirements necessary to join the proceedings were not met and that the appellant’s allegation were ill-founded as to the violation of his right to a fair trial on that ground that the proceedings were conducted by the County Court in Banja Luka independent of the proceedings pending before the County Court in Doboj.
•    Decision on the Merits No. AP 934/04 of 13 October 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 20/06

The use of evidence collected at an earlier stage of the proceedings does not in itself constitute a violation of the right to a fair trial if the convicting judgment is not based solely on that evidence.
•    Decision on the Merits No. AP 1064/04 of 13 October 2005, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 94/05

The execution of a legally binding ruling ordering enforcement, rendered in administrative proceedings, is an integral part of the right to a fair trial.
•    Decision on the Merits No. AP 602/04 of  13  October 2005,  paragraphs  31 and 32, published in the Official Gazette of Bosnia and Herzegovina, 17/06; administrative proceedings, non-enforcement of the legally binding ruling, access to courts; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In case where the charges were dropped as a result of the amnesty, there are no charges that could be “determined” within the meaning of Article 6 paragraph 1 of the European Convention and, therefore, this provision cannot be applied.
•    Decision No. U 24/01 of 28 September 2001, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 5/02; amnesty; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

A principle of ne bis in idem is not breached in case where the challenged convicting and previous acquitting judgment relate to the various loans taken at different times and in different loan amounts by the appellant in cooperation with a number of persons, although these actions were classified in both proceedings as the criminal offence of fraud.
•    Decision on Admissibility and Merits No. AP 954/06 of 5 April 2007, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 70/07; criminal proceedings, the criminal offence of fraud; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court considers that the principle ne bis in idem is not violated in the present case given that the previous judgments rendered in the proceedings in which the subsidiary prosecutors participated as suspects and the convicting judgments against the appellant do not relate to the same person. Consequently, the challenged judgments cannot have a res iudicata effect.
•    Decision on Admissibility and Merits No. AP 1828/06 of 28 March 2008, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 99/08; criminal proceedings, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Given that the guarantees of a fair trial, according to the case-law of the European Convention, apply to all registration procedures related to ownership, the Constitutional Court will give the same guarantees in proceedings conducted upon the appeals lodged with this court.
•    Decision on Admissibility and Merits No. AP 2706/06 of 14 October 2008, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 99/08; the case-law of the Constitutional Court has been changed as to the admissibility of appeals related to the registration of the ownership right and it has been concluded that such appeals are ratione materiae compatible with the Constitution of Bosnia and Herzegovina; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes 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 paragraph 1 of the European Convention in the case where the reasoning of the judgment rendered by the ordinary court includes an arbitrary interpretation and calls into question the right under the Constitution of Bosnia and Herzegovina to have civil rights and obligations determined by a court, as the enforcement of the judicial decision which is an integral part of the “trial”, has become illusory.
•    Decision on Admissibility and Merits No. AP 1472/07 of 22 October 2009, paragraph 50, published in the Official Gazette of Bosnia and Herzegovina, 23/10; payment of unpaid salaries, General Grammar School in Zavidovići

Pursuant to Article 241 of Civil Procedure Code, the Court of Review i.e. the Supreme Court examines the challenged judgment only in the part contested by the petition for review, within the limits of the reasons stated in the petition for review, having due regard, ex officio, to the application of substantive law and procedural errors concerning the litigation capacity of the parties and the representation. In view of the aforementioned, it follows that the Supreme Court was not obliged to examine whether the Cantonal Court exceeded the scope of the claim (ultra petitum) in the situation where the appellant failed to raise that issue in the petition for review.

•    Decision on Admissibility and Merits No. AP 814/08 of 29 June 2010, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 95/10; exceeding the scope of the claim; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is a violation of the right to legal certainty, as an element of the right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6 paragraph 1 of the European Convention in the situation where the court, which is also the court of last resort to decide certain issues, in the cases that are based on identical or similar factual and legal grounds, renders contradictory decisions lacking the reasoning in respect of a deviation from its previous case-law, while there is no mechanism ensuring consistency in decision-making.

•    Decision on Admissibility and Merits No. AP 1076/09 of 26 January 2012, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 26/12; divergent case law; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention is violated in the present case by the issuance of the HJPC’s decision in the disciplinary proceedings before the HJPC in which, due to inconsistent application of substantive law and imprecision of the legal norm, the appellants were denied the right to legal certainty as an element of the rule of law principle under Article I(2) of the Constitution of Bosnia and Herzegovina in the disciplinary proceedings which enjoy the guarantees of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina as well as of Article 6 of the European Convention.

•    Decision on Admissibility and Merits No. AP 4101/09 of 30 March 2012, paragraph 56, published in the Official Gazette of Bosnia and Herzegovina, 40/12; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court holds that the present case does not involve an issue of retrospective application of the law but it concerns the application of a classic case of review/control, which is clearly stipulated and determined by the law (adequately accessible and published), based on the legal provision of a general nature and in effect at the time when the appellant carried out the actions related to the customs procedure and the appellant, given the facts of his case, had to be aware of the fact that the said provision was applicable to the case in question. Namely, taking into account that the procedure of review/control, as a legal mechanism provided in other laws, too, the Constitutional Court holds that the circumstances of the specific case do not disclose anything to indicate an arbitrary application of the law or that the specific actions produced legal uncertainty. Moreover, the Constitutional Court notes that “uncertainty” for the state as a whole would occur if the customs debts remained unpaid. In view of the above and since the Constitutional Court did not find an arbitrary application of the law in the present case, the Constitutional Court concludes that there is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina as well as of Article 6 of the European Convention.

•    Decision on Admissibility and Merits No. AP 2726/09 of 18 April 2012, paragraph 74 to 75, published in the Official Gazette of Bosnia and Herzegovina, 52/12; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that there is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina of the appellant, the Zenica-Doboj Canton and the Sarajevo Canton, where the ordinary courts took into account all the relevant circumstances of the specific cases and established the relevant facts and provided the clear and precise reasons why the relevant provisions of the 2000 Branch Collective Agreement, which was still in effect and more favourable to the employees, and not the provisions of the General Collective Agreement of 8 September 2005, had to be applied to the plaintiffs’ claims arising out of employment after 8 September 2005.

•    Decision on Admissibility and Merits No. AP 3417/08 of 15 May 2012, paragraph 72, published in the Official Gazette of Bosnia and Herzegovina, 44/12; the rights arising out of employment; application of the Branch Collective Agreement and General Collective Agreement; no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina

The Constitutional Court concludes that the challenged decisions rendered by the ordinary courts are in violation of the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in conjunction with the rule of law principle under Article I(2) of the Constitution of Bosnia and Herzegovina, in the case where the legal provision stipulating a replacement for prison sentence is unclear and is interpreted and applied differently and the courts failed to interpret and to apply it in favour of the party in question.

•    Decision on Admissibility and Merits No. AP 2809/12 of 24 May 2013, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 77/13; prison sentence converted into a fine; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the present case concerns a violation of the appellant’s right under Article 6 paragraph 1 of the European Convention where the Supreme Court failed to provide a well-substantiated answer as to why the principle reformatio in peius was not violated in the situation where the indictment was amended by adding certain elements to the factual description which amount to the criminal offence the appellant was charged with, while the original indictment, based on which the first instance judgment had been rendered and then quashed upon an appeal filed by the defence counsel, had not contained the same elements in the factual description thereof.
•    Decision on Admissibility and Merits No. AP 1165/10 of 22 October 2013, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 88/13; criminal proceedings; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraphs 1 and 3(d) of the European Convention is violated where the challenged judgment, finding the appellant guilty of the criminal offence of aggravated theft, is based to a decisive extent on the statements given by the co-accused persons under investigation who, at the main trial, availed themselves of the right not to answer any questions and, therefore, the appellant had no opportunity to call their statements into question at any stage of proceedings, whereas those statements were decisive for the appellant’s conviction and, according to the reasoning of the judgment, no other evidence indicated the appellant’s guilt.
•    Decision on Admissibility and Merits No. AP 2140/12 of 15 April 2015, paragraph 47; criminal proceedings; the judgment is based to a decisive extent on the statements given by the co-accused persons, who availed themselves of the right to remain silent; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The present case concerns the legal issue related to the enforcement procedure based on the bill of exchange, as an authentic document, which is uniformly regulated in the Federation of BiH by the Law on Enforcement Procedure. The part of the present Decision titled Legal Solutions and Case-Law in BiH and Comparative Law, clearly shows that it is about the question the solution of which requires an interpretation and application of substantive law and procedural law, which is primarily the task of ordinary courts. Furthermore, according to the mentioned part of the Decision, there is not a unique position in court practice or legal literature as to the answer to the specific question, i.e. whether a bill of exchange “without protest”, if it is not protested, is an authentic document, meaning that the protest of a bill of exchange and the effect thereof is the subject-matter of further regulation and clarification also in international law. In that respect, it is hard to speak about the manifest arbitrariness that would serve as the cause for the Constitutional Court to review the manner in which the ordinary courts interpreted and applied Article 29 of the Law on Enforcement Procedure in conjunction with Article 47 of the Bill of Exchange Act in the present case. All the more so, because the Constitutional Court already concluded, while examining the identical allegations of the same appellant about the arbitrary interpretation and application of the law in the identical factual and legal situation, that the ordinary courts gave the clear, thorough and specific reasons for their decisions and that the application of the relevant legal provisions was not arbitrary in any part thereof. Finally, in the situation where in the proceedings before the ordinary courts there is a mechanism to ensure consistency in court practice and uniformity of the courts’ case-law and to avoid conflicting court judgments on the same or similar factual and legal issue, as in the present case, the Constitutional Court, if it intervened in the particular case, would take on a role of ordinary courts and would prejudice a possible solution of the disputed legal issue based on the newly-established mechanism, thereby depriving the mechanism of its objective and purpose in the domestic legal system. Such an approach would be in contravention of the position that the Constitutional Court has already expressed in connection with the importance of setting mechanisms in place to ensure consistency in court practice and uniformity of the courts’case-law.
•    Decision on Admissibility and Merits No. AP 760/13 of 30 September 2016, paragraphs 62 and 63; enforcement proceedings, bill of exchange without protest, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that there has been no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention as the ordinary courts did not base the conclusion on the appellant’s guilt and penalty on the evidence obtained in violation of Article II(3)(b) of the Constitution of Bosnia and Herzegovina and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and as there is nothing which would lead to the conclusion that the appellant’s right to defence has been violated or that the proceedings taken as a whole have been unfair.

•    Decision on Admissibility and Merits No. AP 3840/13 of 26 October 2016, paragraph 86; criminal proceedings, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that there has 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 as the judgment was rendered by the judge before whom not a single piece of evidence was presented, and it is not possible to see that measures were taken to ensure that the judge who passed the decision had the appropriate understanding of the evidence and arguments, for example, by providing for a rehearing of the relevant arguments, i.e. because the principle of immediacy, as an important guarantee of fairness of the proceedings, was not complied with.
In addition, there has been a violation of the appellant’s 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 and of his 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 as the courts failed to assess the fact, which is relevant, that the appellant’s property had been permanently seized by the defendant, i.e. the vehicle in question was at disposal of the defendant without court decision (the charges against the appellant had been dismissed and there existed no circumstance indicating that the requirements for retaining the vehicle in question were satisfied).
•    Decision on Admissibility and Merits No. AP 4183/13 of 1 December 2016, paragraph 52, published in the Official Gazette of Bosnia and Herzegovina, 3/17; civil proceedings wherein the appellant claimed repossession of the apartment and compensation for the counter value of the vehicle in question; the principle of immediacy; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH and Article 1 of Protocol No. 1 to the European Convention and Article II(3)(k) of BiH

The appellant claims that the proceedings, after the Constitutional Court had quashed the decision of the Court of BiH and referred the case back for new proceedings, should have been restored to the stage after the confirmation of the indictment, and the Court of BiH violated the right to an effective legal remedy by failing to do so and denied him the opportunity to present and propose new evidence […]. The Constitutional Court observes that it follows from the challenged judgment of the Court of BiH that this particular court, upon the Constitutional Court’s decision to quash the judgement and to remit the case to the appellate court, concluded that its obligation is to remove violation found in the decision of the Constitutional Court which found that the Criminal Code of BiH had been retroactively applied to the appellant’s detriment with regard to the sentence. Next, it noted that although the appellant’s guilt was not the subject of consideration of the decision of the Constitutional Court, an analysis of the relevant facts supported by evidence being the basis for the conclusion on the appellant’s guilt was presented, and the criminal code applicable at the time when the criminal offence had been committed, i.e. Criminal Code of the SFRY, had been applied to the established facts. In this connection, the Constitutional Court notes that the appellant did not claim in the appeal that his complaints had not been examined in the challenged judgment of the Court of BiH, and he did not challenge the reason given in the contested judgment, with the exception of the part related to the findings of the Court of BiH that he had the opportunity to participate effectively in the proceedings conducted against him. Finally, the appellant did not indicate which piece of evidence he could not propose or present in support of his defence, whereas it follows from the reasons for the contested judgment, which was not disputed by the appellant, that the second-instance panel admitted and assessed evidence, medical documentation, which he presented at the session of the Panel and which related to his disability, i.e. hearing-impairment. Thus, the mere fact that the appellant was not satisfied with the conclusion that the Court of BiH, that he was given the opportunity to participate effectively in the proceedings, does not bring into question the existence of effective legal remedy, i.e. the opportunity to propose and present new evidence in the appellant proceedings.
•    Decision on Admissibility  and Merits No. AP 875/14 of  15 February  2017, paragraphs 47 to 53, published in the Official Gazette of Bosnia and Herzegovina, 19/17;  criminal  proceedings;  war  crime,  the  proceedings  conducted  after  the Constitutional Court had quashed a decision of the Court of BiH and had referred the case back for new proceedings; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH and Article 7 of the European Convention

The Constitutional Court holds that there has been a violation of the right under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention as the appellant, while being interrogated by the Prosecutor’s Office of BiH, was not informed of all offences with which he was charged nor was he informed of his rights, which was required under Article 6 and Article 78(2)(c) of the Criminal Procedure Code of BiH, and thus, the prosecutor failed to fulfil his obligation to inform the appellant of the charges, and finally, as the appellant’s statement given during the investigation was admitted as evidence at the main trial, which jeopardized the decision-making and fairness of the proceedings as a whole in the light of general safeguards related to the fair trial under Article 6(1) of the European Convention.
•    Decision on Admissibility and Merits No. AP 865/16 of 7 March 2017, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 25/17; criminal proceedings; war crime, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court holds that there has been a violation of the principle of legal certainty as one of the basic forms of the rule of law within the scope 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 as the court, being the court of last resort, the decision of which could not be appealed according to the law by introducing an effective legal remedy, in a case based on the same points of facts and law, took a completely different decision contrary to the well-established case-law without giving an objective and reasonable justification, where the mechanism which should have ensured the consistency in decision-making was not effective.
•    Decision on Admissibility and Merits No. AP 4582/16 of 6 December 2018, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 2/19; payment of jubilee awards, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established