The Constitutional Court recalls that, in principle, court hearings are to be held in public. The public character of hearings ensures public scrutiny, serves the general interest and is aimed at preventing crimes and developing moral and social discipline in citizens.
• Decision on Admissibility and Merits No. AP 74/04 of 23 March 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 27/05
The administrative court is obliged to hold a public hearing in cases where the circumstances indicate so and where the appellant demands it (cf. AP 963/04, of 17 November 2005, paragraphs 40 et seq.). Consequently, the administrative court cannot interpret its discretionary right in an arbitrary manner. It should be interpreted in the spirit of the constitutional substantive law including the European Convention, which has priority over all other laws (Article II(2) of the Constitution of Bosnia and Herzegovina). The reason for this is that there is an exception in case where the administrative court decides that the hearing, in proceedings which decide on “civil rights” within the meaning of Article 6 European Convention, is to take place in camera. Such an exception is justified if the hearing of a case in private satisfies all the elements of a fair trial. This is a particularly sensitive issue in administrative proceedings and disputes as the administrative authorities do not satisfy criteria of “independence” and “impartiality” and, therefore, the administrative court is the only instance where the criteria are met. Nevertheless, the standard of a fair trial is not met if it is necessary that the court hears the party in persona and if it is requisite to present and examine evidence to which the party might refer directly. In the view of the Constitutional Court, this will occur always if it is required that the administrative court is to determine the complex facts or to ascertain the correct application of the law (cf. U 148/03 of 28 November 2003, paragraphs 55 et seq., Official Gazette of Bosnia and Herzegovina, 1/04).
• Decision on Admissibility and Merits No. AP 1139/06 of 17 April 2008, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 55/08; administrative proceedings, the facts established in an arbitrary manner and an erroneous application of the law, the court stated its reasons for the judgment; the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established