In view of the organization of judicial system of Bosnia and Herzegovina, the Court of BiH does not represent the “highest tribunal” in terms of judicial organization and hierarchy of courts in Bosnia and Herzegovina. However, given the manner its jurisdiction is determined, there is no higher judicial instance which would decide in the appellate proceedings against the decisions of the Appellate Division Panel of that Court in the regular procedure. It follows, therefore, that the decision in the particular proceedings has been rendered by “the highest tribunal”.
• Decision on Admissibility and Merits No. AP 3229/10 of 9 December 2014, paragraph 120, published in the Official Gazette of Bosnia and Herzegovina, 4/15
The Constitutional Court concludes that the manner in which the Supreme Court interpreted and applied in the present case the relevant provision of Article 333 of the Criminal Procedure Code, that is to say it concluded that the appeal was not allowed in the present case, is in contravention of the guarantees referred to in Article 2 of Protocol No. 7 to the European Convention. Namely, if the domestic law provides for a possibility of appeal in certain case, which it does, and particularly if it anticipates three “different” situations which give rise to the mentioned right, and two different “procedures” preceding them (which is the difference between item b) and item v)), first and foremost it is necessary to establish which situation the case is concerned with. The next step is to establish whether the circumstances of the present situation are related to the prescribed legal conditions, namely whether it was about the pronounced sentence of long-term prison, “the judgment acquitting the accused of the charges” and whether a sentence was pronounced finding the accused guilty, or a judgment was passed at a trial finding the accused guilty concerning the appeal against “the acquitting judgment”. The Constitutional Court points to the position taken in its Decision No. AP 3939/12 of 10 November 2015 (available at: www.ustavnisud.ba) wherein it mentioned that it was necessary to examine the meaning of the notion “acquitting judgment” (which it addressed in the mentioned case). As for the case at issue it is necessary first and foremost to “subsume” the case under the appropriate legal regulation, and only then to establish what the “acquitting judgment” is, namely the “judgment dismissing the charges”, and just then to examine the other aspects relevant for the conclusion on the type of decisions this concerned and about the intention of the legislator that prescribed this provision. This especially being so when bearing in mind that the mentioned provision of the present Article 333 of the Criminal Procedure Code was subject to amendments, that is to say its contents were changed, therefore there certainly must be a clear justification for such conduct, which has to be respected and clearly specified in practice. Otherwise the purpose of a procedure would be lost, namely procedural guarantees afforded by Article 333 of the Criminal Procedure Code, as well as Article 2 of Protocol No. 7 to the European Convention, including, accordingly, the essence of law, which always leads to arbitrariness in decision-making, and, consequently, to the violation of the principle of legal certainty.
• Decision on Admissibility and Merits No. AP 3063/15 of 16 March 2016, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 29/16; war crime; criminal procedure
