I have seen this claim floating around for a while now and couldn’t find any credible sources to verify it. To put it bluntly, if you have a publication but won’t put your real name behind it – I’m not going to cite it as a source.
However, that changed when I was able to find the Bosnia and Herzegovina Constitutional Court website (make sure to have on translation on under extensions) that verified the story which I will now present below. The translation isn’t the greatest – but you should get a general understanding of the matter.
Decisions made by the court on December 21st, 2020
The court concluded that “interference with fundamental human rights and freedoms guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) had happened. Specifically, in regards to “the right to privacy and freedom of movement, which was executed by orders of narrow segments of the executive branch on mandatory wearing of protective masks and restriction of movement.“
In essence, the court ruled that the right to privacy and freedom movement had been violated by orders of the executive branch by mandating masks and restricting movement. However, there is more to this (see rest of article).
The court decision continued;
“The Constitutional Court concluded that there was a violation of the right to private and family life, home and correspondence from Article II / 3.f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention when interference with the said right is “illegal.”
Article 8 of the European Convention
A BIH lawyer named Mirnes Ajanović had this to say on the decision from the courts;
“The Constitution of BiH and Article 8 of the European Convention for the Protection of Human Rights and fundamental freedoms, due to the Order on mandatory wearing of masks, and the right to freedom of movement from Article II / 3.m) of the Constitution of BiH and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms – provides a legal basis for all citizens and business entities in the FBiH that have been fined for misdemeanours may file lawsuits in civil proceedings against the Federation of BiH and the Sarajevo Canton for acquisition without grounds.“
So there is a legal basis now to fight the fines but the issue is more complex as detailed below;
“Until the harmonization of legislation in relation to the Decision of the Constitutional Court of BiH, on the basis of these Orders it will not be possible to sanction misdemeanours who do not act under these Orders, and in case of misdemeanour warrants, it is necessary to seek court decisions. In court proceedings, it is necessary to refer to the Decision of the Constitutional Court of BiH number AP-3683/20, to submit a request for suspension of misdemeanour proceedings, on the basis of which the court is obliged to make a decision to reject the misdemeanour order.“
The lawyer continued;
“The Constitutional Court of BiH did not annul the unconstitutional and illegal Orders of the Crisis Staff of the Federal Ministry of Health No. 01-33-6301 / 20 of November 9, 2020, and the Orders of the Crisis Staff of the Ministry of Health of Sarajevo Canton No. 62-20 / 2020 of October 12, 2020“
“Because it considered that such abolition, given the undoubted public interest in introducing the necessary measures to protect the population from a pandemic, could have negative consequences before the legislature and the highest executive take action within their powers and obligations.”
In its Decision pursuant to Article 72, paragraph (4) of the Rules of the Constitutional Court of BiH, the Constitutional Court of BiH ordered the Parliament and the Government of FBiH to immediately, and no later than within 30 days of receiving the Decision, take action and harmonize their actions with Article II standards. /3.f) the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the standards referred to in Article II / 3.m) of the Constitution of BiH and Article 2 of Protocol No. 4 to the European Convention for the Protection of Human Rights and fundamental freedoms.“
This means that the BIH government will have to amend or adopt new laws that are in compliance with article 2 (Human Rights portion) of their constitution and article 8 of the European Convention.
“Based on the stated obligation, the Decision of the Constitutional Court of BiH will certainly amend the existing laws, and possibly adopt new ones, which will ‘legalize’ all actions related to the coronavirus and thus sanctions for non-compliance with measures.”
It appears that the mask mandate and restrictions on movement are “on hold.” The BIH government has 30 days to make them in compliance as per the court’s instructions – but they will be subject to their constitutions Human Rights and Fundamental Freedoms. We will continue to monitor this story as it unfolds.
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