Apelacijska nadležnost Ustavnog suda BiH u odnosu na odluke entitetskih ustavnih sudova - Mrkonjić, Petar (Fondacija Centar za javno pravo, 2019)
The issue of the appellate jurisdiction of the Constitutional Court of BiH in relation to the decisions of the entity constitutional courts is a complex legal issue. It primarily refers to the definition of the character of entity constitutional courts and constitutional courts in general. The interpretation of the Constitutional Court of BiH, not to consider the decisions of the entity constitutional courts within the framework of the appellate jurisdiction, is compromised by its own practice and interpretations of the Constitutional Court of BiH in cases U-9/09 (Statute of the City of Mostar), U-8/17 (Ordinance on amendments to the Ordinance on Wearing Uniforms Border Police of BiH), and AP-3051/14 (Decision of the Government of the Federation of BiH). The wording of all interpretations of the Constitutional Court of BiH on its own jurisdiction in these cases is to expand its own jurisdiction in order to enable the protection of fundamental human rights and freedoms.
It remains questionable (and insufficiently explained) that the Constitutional Court of BiH did not solve the dilemmas about the character of the entity Constitutional Court in favor of its own competence for deciding on issues contained in the BiH Constitution. In the meantime, it remains questionable in which way the Constitutional Court of BiH is examining Entity Constitutional Courts, when it ignores the provisions of the Constitution of BiH on appellate jurisdiction in relation to their decisions. Finally, the Constitutional Court of BiH is very contradictory in determining whether the Constitutional Court of FBiH is a court in the proper sense of the word.
The decisions of the Constitutional Court of BiH in which the Constitutional Court of the Entity is designated as part of the judicial authority, which is, by and large, understandable in the light of the text of the Constitution of FBiH, have much better reasoning than the decisions in which the argument of the final and binding nature of the decisions of the entity constitutional courts was highlighted. I believe that this analysis showed that the BiH Constitutional Court was wrong when in suspending its unquestionable appellate jurisdiction in favor of the principle of the final and binding nature of the decisions of the entity constitutional courts rendered within their abstract jurisdiction. However, the right question is what kind of legal acts can be the subject of consideration by the Constitutional Court of BiH within the framework of appellate jurisdiction.
It is undeniable that according to the constitutional text in force, this may be the decision of all courts in Bosnia and Herzegovina. Considering the position taken by the Constitutional Court itself, this can be the decisions of the entity constitutional courts. Finally, the Constitutional Court also considered the decision of the Government of the FBiH by justifying such conduct by argumentation of a broad interpretation of the authority to protect human rights and freedoms. In view of this, there should be solutions from the Federal Republic of Germany, where the decision-making within the framework of the appellate jurisdiction can be all decisions of the public authority, provided that all other remedies have been exhausted before, including the court proceedings. Such a broad formulation of appellate jurisdiction ensures effective protection of fundamental human rights and freedoms.
In the absence of the activities of the constituent, this matter can be resolved by its own legal activism only by the Constitutional Court by making decisions and interpretations which define its appeal jurisdiction in a clear, reasoned and consistent manner. Such decisions should eliminate the damage expressed through legal uncertainty and inconsistency in the previous practice of the Constitutional Court of BiH. Exposed practice from the Federal Republic of Germany is also important because of the busy doctrinal approach of the German constitutional court that the Federal Constitutional Court is an indisputable authority for all issues arising from the state constitution and that there are no restrictions for the Federal Constitutional Court in that regard. I believe that in this direction the Constitutional Court of Bosnia and Herzegovina should also begin to confirm the supremacy of the state constitution in relation to all the lower legal acts in Bosnia and Herzegovina