Information Note on the Court’s case-law No. 101
October 2007
Berić and Others v. Bosnia and Herzegovina - 36357/04
Decision 16.10.2007 [Section IV]
Article 35
Article 35-3
Ratione personae
Applicants’ removal from public functions by a decision of the High Representative for Bosnia and Herzegovina whose authority derives from UN Security Council Resolutions: inadmissible
Article 1
Responsibility of states
Decisions of the High Representative for Bosnia and Herzegovina whose authority derives from UN Security Council Resolutions: inadmissible
The applicants were holders of various public functions in Republika Srpska, one of the two entities within Bosnia and Herzegovina. In 2004 the High Representative for Bosnia and Herzegovina – an international administrator monitoring the implementation of the Dayton Peace Agreement whose office had been endorsed by the UN Security Council in 1995 – removed the applicants from all their public and political party positions for “obstructing international law by assisting in evading justice individuals indicted by the ICTY”. An ensuing decision by the Constitutional Court ordering the domestic authorities to secure an effective remedy in respect of removals from office by the High Representative was rendered devoid of any practical effect by his subsequent statement that his decisions, pursuant to his international mandate, were not justiciable by the courts of Bosnia and Herzegovina or its entities.
The applicants complained under the criminal limb of Article 6 and under Articles 11 and 13 of the Convention about the High Representative’s measures and the lack of an effective remedy in that respect.
Inadmissible: Having identified a “threat to international peace and security” within the meaning of Article 39 of the UN Charter, the UN Security Council had delegated to an informal group of States actively involved in the peace process in Bosnia and Herzegovina (“the Peace Implementation Council”) the establishment of the office of the High Representative. The High Representative was to report directly to the PIC and was authorised, inter alia, to remove from office public officials considered to have violated legal commitments of the Dayton Peace Agreement. However, pursuant to the relevant provisions of the UN Charter, in delegating its powers through Resolution 1031, the Security Council retained effective overall control. The Court therefore considered that in the applicants’ cases the High Representative had been exercising lawfully delegated Chapter VII powers of the UN Security Council and that the impugned actions regarding the applicants had been “attributable” to the UN within the meaning of the relevant provisions of international law. Attempting to establish a review mechanism in respect of the High Representative’s decisions could therefore not have changed the nature of those acts without a prior approval by the High Representative himself. The Court noted, moreover, that the impugned decisions had had immediate effect and had not required any procedural steps by the domestic authorities. As to whether Bosnia and Herzegovina could nevertheless be held liable for the impugned acts, the Court recalled its reasoning in Behrami and Behrami and Saramati v. France, Germany and Norway ((dec.) [GC] nos. 71412/01 and 78166/01, 2 May 2007; see Information Note no. 97), which concerned acts performed by KFOR and UNMIK in Kosovo under the aegis of the UN. The Court considered that the reasoning outlined in those cases also applied to the acceptance of an international civil administration in its territory by a respondent State: incompatible ratione personae.
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This summary by the Registry does not bind the Court.
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