Summary
During the decision-making procedure the Constitutional Court shall
examine the existence of only those violations that are alleged in the request/appeal. The court or the body whose decision has been quashed is
obligated to make another decision and, in doing so, it shall be bound by
the legal opinion of the Constitutional Court concerning the violation of the
appellant’s rights and freedoms guaranteed under the Constitution. The decisions of the Constitutional Court shall be final and binding. Every physical
and legal person shall be obligated to comply with them.
In the analyzed case AP 369/10, the Cantonal Court in Bihać, whose
Decision was terminated, adopted a new act in accordance with the legal
opinion of the Constitutional Court. Also, the Parliament of the Federation
of B&H adopted the Amendments to the Family Law of the FB&H, and
disputed Article 43 was out of the legal force.
As for the legal effect of the Constitutional Court's decision against other state bodies whose decisions were not subject to challenge before Constitutional Court, we consider that it is not formally binding on the National Assembly of Republic of Srpska. In other words, it does not imply any
commitment neither for this entity's legislative authority, nor for the legislative body of the Brčko District. However, the lack of identical normative
solutions in family-law relations across the entire territory of B&H leads
to legal uncertainty of the subjects and their discrimination depending on
the part of the state in which they live. In addition to that, in the territory of
Republic of Srpska, the applicable provisions of the RS Family Law are still
gender-based discriminatory. In this regard, given that Bosnia and Herzegovina is a democratic state and that both entities are obliged to ensure the
highest level of internationally recognized human rights and fundamental
freedoms, on the one hand, and bearing in mind the fact that the rights and
freedoms envisaged in the European Convention and its protocols directly
apply in Bosnia and Herzegovina and have priority over all other laws, we
believe that regular courts in the RS, when deciding on the claims, have a
constitutional obligation to apply international standards for the protection
of human rights and freedoms.
In other words, courts in Republic of Srpska should take into account
the views of the Constitutional Court of B&H in case AP 369/10. The reason
for this lies in the fact that the analyzed Decision has a prejudicial effect
as it represents a source of law. The Decision of the Constitutional Court
of B&H in the case AP 369/10 represents the relevant legal basis for the
possible initiation of new proceedings before ordinary courts in Bosnia and
Herzegovina.
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