ELECTION OF DOMESTIC JUDGES OF CONSTITUTIONAL COURT OF BOSNIA AND HERZEGOVINA – DISCRIMINATORY CONSTITUTIONAL PRACTICE?

Abstract

The paper deals with the practice of election of domestic judges of the Constitutional Court of Bosnia and Herzegovina and the application of the ethnical principle in this process. The first part represents the ethnic-territorial principle of the constitutional order of Bosnia and Herzegovina and provide basic outlines of the constitutional position of Constitutional Court. The second part discusses theory of elements and types of constitutional custom. The next part of the Paper, (Part III) analysis of the elements of the constitutional custom in the process of election of domestic judges of the Constitutional Court, and therefore determines that this practice represents a constitutional custom. By considering the jurisprudence of the European Court of Human Rights and official documents of bodies which have conducted previous elections of judges, it can be concluded that it is custom which is contrary to the constitutional provisions on the direct application of the European Convention on Human Rights and fundamental freedoms and its protocols (primarily Protocol 12 - general prohibition of discrimination) and to the constitutional provisions on non-discrimination (part four). In support of this conclusion provisions of the previous Rules of Procedure of the Constitutional Court and the views of Serbian constitutional law textbooks authors, are presented. The last part of the Paper (the fifth part) proposes the most appropriate way to change constitutional custom contra constitutionem.