In many aspects the Constitutional Court of Bosnia and Herzegovina is fascinating for internationalists. Essential piece of the federal and “consociational” system set up after the Bosnian War, the Court has an ambitious mandate. According to article VI of the Constitution the Court has to control domestic laws not only in accordance with the Constitution but also with the European Convention of Human Rights (ECHR). The Court’s competencies include the classical function of constitutional control as well as the unusual function of ensuring the ECHR’s implementation. To achieve this mandate the Court’s composition presents an atypical feature: 3 of the 9 judges are appointed by the president of the European Court of Human Rights. Whilst the Constitution only requires “international” judges to be foreigners, the practice gradually favored the appointment of former judges of the European Court. The international coloration of the mandate and the composition of the Court surely upsets the dualist theory. However, it brings some undisputable advantages during crisis period such as the one we are witnessing today.
On April 22nd the Constitutional Court of Bosnia delivered a noteworthy decision on Human Rights restrictions in context of Covid-19. Mrs Lejla Dragic files an appeal against the measure of isolation of the people over 65 and under 18 years old that has been adopted by the federal civil protection headquarters. The applicant alleges the measure to be in violation of the principle of non-discrimination (art. 14 of the ECHR), the article 5 safeguarding the liberty and security of the person, and the article 2 of protocol n°4 which secures the freedom of movement. The appellant also considers that the federal civil protection headquarters lacks competence to adopt such restrictive measures. She points out that restrictions in the exercise of these rights may be imposed only in accordance with the law if they are necessary in a democratic society. She further alleges that the rigor of the measure, that cannot suffer from any exception (such as first necessity purchase), tends to put her in a situation of “home arrest” and breaches then the article 7, “no punishment without law”.
The Constitutional Court began its reasoning with “introductory remarks” about the sanitary crisis and the obligations stemming from the Conventions for the States in handling it. Thus the Court reminds that “positive obligations ordered in the European Convention in order to pursue a legitimate aim of the protection of the health of people require that member States demonstrate active care and timely reaction “(§36). Stating that restrictions to Human Rights are allowed by the Convention the Court pedagogically detailed several conditions for restrictions to be lawful according to the European Court’s jurisprudence. Mindful of the importance of its reasoning educational aspect, the Court insists on maintaining this jurisprudence even in case of State of emergency.
Having thus explained the State’s obligation, the Court analyzed, in great length and details, the conformity of the contested measure with the conditions formerly cited. The Court refers to the “great social, political and legal challenges for states facing the COVID-19 pandemic to respond effectively to such a crisis, while ensuring that the measures they take do not jeopardize the long-term interests in protecting fundamental democratic values, the rule of law and human rights “(§53). The Court then goes beyond the frame of the appeal to consider, as a whole, the state of emergency decided by the government. After a precise and meticulous analyze, enriched with numerous references to the European Court’s jurisprudence, the Court concludes to the disproportionality of the isolation measure adopted. Going further that simply asking the annulment of the litigious measure, the Court takes the opportunity to give a lesson of “good governance” to the government, emphasizing “the obligation, primarily the obligation of the FBiH Government, to publicly explain, on a daily basis, with the participation of eminent representatives of the health care profession, the need for all measures, their duration and possible mitigating or tightening. “ (§65).
The Constitutional Court delivers a decision highly protective of Human Rights which asserts the rule of law. The most intriguing input of this decision lies into its very pedagogic reasoning, not so much into its conclusion. The decision underlines the essential role of the Constitutional Court as part of the Bosnian democratic system, not only through the control of governmental activities but also with the helpful interinstitutional dialogue it establishes. Covid-19 unfortunately offers opportunities of massive violation of Human Rights, especially in Europe. The Constitutional Court of Bosnia’s ability to find a balance between managing this crisis and protecting Human Rights is remarkable, especially compared to the silence of the “old” western democracies (Catherine Krief-Semitko, « De l’état du droit à l’État de droit à l’ombre du coronavirus », Dalloz Actualités, 8 mai 2020). This case underlines the success of this unusual institution in assuming the task of leading the democratic transition of Bosnia Herzegovina since the end of the war. Once more, the grass is greener on the other side but we might this time wonder about the abilities of our gardener who seems to have lost his protection duty from sight.