This thesis investigates and analyses the current processes of enforcement of the ECtHR's judgements in Bosnia and Herzegovina and in Serbia, the main challenges that occurred before the national authorities in this process and the prospect of the efficiency of the measures that these countries undertake in order to fulfil the obligations imposed by the judgements.
Table of Contents
1 Introduction
1.1 Purpose
1.2 Method and Material
2 The Right to a Trail within a Reasonable Time as the Perspective for the Improvement of the Judiciaries in Bosnia and Herzegovina and in Serbia
2.1 The Right to a Trial Within a Reasonable Time as Defined by the ECHR
2.2 The Genesis of the Violation of the Right to a Trial within a Reasonable Time and the Current Challenges of Bosnia and Herzegovina's Judicial System
2.3 The Genesis of the Violation of the Right to a Trial within a Reasonable Time and the Current Challenges of Serbia's Judicial System
2.4 Roots of Challenges for the National Judiciaries' Responses to the Obligation under Article 6
2.4.1 Law on Protection of the Right to a Trial Within a Reasonable Time as the Response of Serbia to Obligations under Article 6 - Possible Challenges in the Law Enforcement
2.4.2 Constitutional Court of Bosnia and Herzegovina's Proactive Role as a Call for Response of the Competent National Authorities
2.5 Concluding Remarks
3 Cases in respect of Bosnia and Herzegovina and Serbia Under Enhanced Supervision
3.1 Sejdić and Finci Group of Cases - Causes of Violation of Article 1 of Protocol No. 12, Article 14 and Article 3 of Protocol No. 1 to the ECHR
3.1.1 Constitutional Reality as a Nine-Year-Long Limbo between the ECHR's Obligations and the Lack of Affirmative Actions of the National Authorities
3.1.2 Implementation of the ECtHR's Judgement in the Case of Sejdić and Finci as a Hostage of Unresolved Croatian Issue in Bosni and Herzegovina
3.2 Cases of Đokić v Bosnia and Herzegovina and Mago and Others v Bosnia and Herzegovina - Causes of Violation of Article 1 of Protocol No 1 to the ECHR
3.2.1 Bosnia and Herzegovina's Authorities' Reluctance to Enforce the judgement in the case of Đokić and the case of Mago and Others v Bosnia and Herzegovina
3.3 Case of Milanović v Serbia - Main Facts Established by the ECtHR Regarding the Determined Violation of Article 1 and Article 14 of the ECHR
3.3.1 The Shortcomings in the State's Legislation as an Obstacle to the Implementation of the Judgement Milanović v Serbia
3.4 Causes of Violation of Article 8 of the ECHR as Determined by the ECtHR' Judgement in the Case of Zorica Jovanović v Serbia
3.4.1 Sources of Possible Chalenges in the Implementation of the Obligation from the Judgement in the Case of Zorica Jovanović v Serbia
4 Conclusions
Research Objectives & Core Themes
This thesis investigates and analyzes the challenges faced by national authorities in Bosnia and Herzegovina and Serbia regarding the enforcement of judgments delivered by the European Court of Human Rights (ECtHR). The research primarily focuses on structural problems within the respective judiciaries, their compliance with international human rights obligations, and the impact of these judgments on national legal systems.
- Enforcement of the right to a fair trial (Article 6 ECHR) in transitional states.
- Systemic issues causing excessive length of judicial proceedings and non-enforcement of final court decisions.
- The role and limitations of national constitutional courts in interpreting international human rights law.
- The impact of political and constitutional structures on judicial independence and efficiency.
- Analysis of ECtHR judgments under the enhanced supervision procedure of the Committee of Ministers.
Excerpt from the Book
2.4 Roots of Challenges for the National Judiciaries' Response to the Obligations under Article 6
If we only take into consideration the fields of law enforcement where the violation of relevant parts of Article 6 was determined by the ECtHR in respect of Bosnia and Herzegovina and of Serbia, it can be clearly concluded that the respective national authorities face a complex problem of increasing the efficiency of the domestic judicial systems. Since the ECtHR delivered its first judgements in the cases of Jeličić v Bosnia and Herzegovina and Kačapor and Others v Serbia in 2006 and 2008 (in which it found violations of Article 6 and Article 1 of Protocol No. 1 to the ECHR on the ground of non-execution of domestic judgements and excessive length of proceedings before the national authority), it is evident that the aforementioned complex problem affecting the domestic judiciaries in respective states lasts for more than 10 years.
With the aim of providing the clarification on why the national judiciaries of Bosnia and Herzegovina and Serbia are still not capable to fully respond to the obligation prescribed by Article 6 of the ECHR, it is important here to put in line two opposing legal concepts currently in force in both countries. The solid legal basis provided by the constitutions of both countries enabling the direct implementation of the ECHR into the national legal systems and the opposing reluctance of the national courts to enforce the provisions of the ECHR.
Namely, both countries' constitutions envisage a monistic understanding of the priority in the implementation between domestic law and international law. This means that national law and international law should constitute a unified legal framework within the legal systems of the respective countries, simultaneously, preventing their mutual conflict during the process of implementation itself.
Summary of Chapters
1 Introduction: Provides an overview of the legal transition in Bosnia and Herzegovina and Serbia following the breakup of Yugoslavia and establishes the research purpose and methodology.
2 The Right to a Trail within a Reasonable Time as the Perspective for the Improvement of the Judiciaries in Bosnia and Herzegovina and in Serbia: Analyzes the structural challenges regarding the right to a fair trial, focusing on non-enforcement of judgments and the role of national judiciaries and constitutional courts.
3 Cases in respect of Bosnia and Herzegovina and Serbia Under Enhanced Supervision: Examines specific ECtHR judgments regarding discriminatory electoral rights, property rights, and torture, analyzing state responses and obstacles to implementation.
4 Conclusions: Synthesizes the findings, highlighting the persistent failure of national authorities to align their legal frameworks with ECHR obligations due to political, constitutional, and institutional deficits.
Keywords
ECHR, ECtHR, Bosnia and Herzegovina, Serbia, Article 6, Fair Trial, Judicial Independence, Rule of Law, Human Rights Enforcement, Constitutional Court, Transitional Justice, Committee of Ministers, European Union Accession, Judicial Reform, Discriminatory Legislation.
Frequently Asked Questions
What is the primary focus of this thesis?
The thesis focuses on the challenges national authorities in Bosnia and Herzegovina and Serbia face when attempting to enforce judgments delivered by the European Court of Human Rights (ECtHR).
What are the central themes discussed in the work?
Central themes include judicial inefficiency, the non-enforcement of final domestic court decisions, the influence of political regimes on the judiciary, and the compatibility of national constitutions with the European Convention on Human Rights.
What is the primary objective of this research?
The goal is to analyze the effectiveness of national measures taken to implement ECtHR judgments and to evaluate the readiness of both states to meet international human rights standards necessary for European Union integration.
Which scientific methodology is utilized?
The author uses a qualitative and quantitative analysis of ECtHR judgments, focusing on structural problems within the legal systems and assessing the relevance of state-conducted measures against international requirements.
What issues are addressed in the main chapters?
The work addresses systemic violations of Article 6 (right to a fair trial), property rights issues (Protocol No. 1), and political discrimination in electoral processes, alongside the challenges of legislative and judicial reform.
Which keywords best characterize the research?
Key terms include ECHR compliance, judicial reform, constitutional hierarchy, enhanced supervision, and state transitional processes in Bosnia and Herzegovina and Serbia.
How do constitutional courts in these countries hinder implementation?
The research suggests that these courts often adopt a formalistic approach, prioritizing national constitutional provisions over international obligations, thereby failing to act as effective corrective mechanisms for human rights violations.
What specific challenges exist in Bosnia and Herzegovina regarding judicial enforcement?
The thesis identifies the highly decentralized state structure and the existence of four independent judicial systems as major obstacles to implementing a comprehensive approach to human rights justice.
What is the role of the Committee of Ministers in this context?
The Committee of Ministers monitors the execution of ECtHR judgments and is tasked with determining whether a state has complied with its international obligations, often placing non-compliant cases under an enhanced supervision procedure.
Does the author see a clear path for reform?
The author is skeptical, concluding that national authorities often engage in "pro forma" legislative changes and suffer from a lack of political will, which currently prevents meaningful improvements in judicial and democratic processes.
- Arbeit zitieren
- Peda Durasovic (Autor:in), 2018, Human Rights in Bosnia and Herzegovina and Serbia. Challenges for Respective National Responses to the European Convention on Human Rights (ECHR), München, GRIN Verlag, https://www.grin.com/document/467970
