AP1 (Applicant): I'm sorry Most importantly For the success of the peace agreement and its successful implementation The parties all agreed that international organizations should be called upon and included in the peace implementation process To this end, they requested the designation of a high representative Who would be appointed consistent with relevant United Nations Security Council Resolution resolutions and whose duty would be to coordinate the activities of the organizations and agencies Involved in the civilian aspects of the peace settlement the office of the high representative OHR is an ad hoc international institution responsible for overseeing the implementation of civilian aspects of the accord Ending the war in Bosnia-Herzegovina The position of high representative was created under the general framework agreement for peace in Bosnia-Herzegovina The high representative who is also EU special representative in Bosnia-Herzegovina Is working with the people and institution of Bosnia-Herzegovina and the international community to ensure that Bosnia-Herzegovina Evolves into peaceful and viable democracy on course for integration into Euro-Atlantic institutions For this particular case, there is one OHR decision that is extremely important It was issued on 23rd March 2007 The relevant part of the high representative's decisions reads as follows Article 2 Any step taken by any institution or authority in Bosnia-Herzegovina In order to establish any domestic mechanism to review the decisions of the high representative Issued person to his international mandate shall be considered by the high representative As an attempt to undermine the implementation of the civilian aspects of the peace agreement And shall be treated in itself as conduct undermining such implementation Article 3 Notwithstanding any contrary provision in any legislation in Bosnia-Herzegovina Any proceeding instituted before any court in Bosnia-Herzegovina Which challenges or takes issue in any way whatsoever with one or more decisions of the high representative Shall be declared inadmissible unless the high representative expressly gives his prior consent Any proceeding referred to in paragraph 1 of this article shall be effectively and formally notified To the high representative by the concerned court without delay For the avoidance of any doubt or ambiguity and taking into account the totality of the matters aforesaid It is hereby specifically ordered and determined in the exercise of the said international mandate Of the high representative and person to its interpretation herein under and by virtue of the said And extent to the peace agreement that no liability is capable of being incurred on the part of the institutions Of Bosnia-Herzegovina and or any of its subdivisions and or any other authority in Bosnia-Herzegovina In respect of any loss or damage allegedly flowing either directly or indirectly From such decision of the high representative made person to his or her international mandate or at all Article 4 For the avoidance of doubt it is hereby specifically declared and provided that the provisions of the order Contained herein are as to each and every one of them laid down by the high representative person To his international mandate and are not therefore justiciable by the courts of Bosnia-Herzegovina Or its entities or elsewhere and no proceedings may be brought in respect of duties in respect thereof Before any court whatsoever at any time hereafter It is clear from paragraph 2 of the high representative's decision Any step taken by any institution or authority in Bosnia-Herzegovina in order to establish any domestic mechanism To review the decisions of the high representative issued person to his international mandate Shall be considered by the high representative as an attempt to undermine the implementation Of the civilian aspects of the peace agreement and shall be treated in itself as conduct In order to prevent such implementation that in fact there is no domestic remedy Within Bosnia-Herzegovina that would offer the applicants reasonable prospect of success For the purposes of these issues This decision was taken by high representative following constitutional court of BH Attempt to protect two citizens of BH who were removed from effectively public life by the decision of high representative It clearly states that no institution in BH including all courts cannot protect citizens of BH And their rights guaranteed under ECI chair are violated by OHR's decision It is clear that BH is responsible for this violation including applicant Maktov's right to a fair trial That was violated due to OHR's decision on appointment of international judges to short term mandates According to article 2 of annex 10 of the Dayton peace agreement The high representative is directed to monitor the implementation of the peace settlement Maintain close contact with the parties to the agreement to promote their full compliance With all civilian aspects of the agreement Coordinate the activities of the civilian organizations and agencies in Bosnia-Herzegovina To ensure the efficient implementation of the civilian aspects of the peace settlement The high representative shall respect their autonomy with their spheres of operation While it is necessary giving general guidance to them about the impact of their activities On the implementation of the peace settlement Facilitate as the high representative judges necessary The resolution of any difficulties arising in connection with civilian implementation Participate in meetings of donor organizations And report periodically on progress to the United Nations, European Union, United States, Russian Federation And other interested governments, parties and organizations It is clear that UN bond powers cannot be attributed to the United Nations And that Bosnia and Herzegovina must be held responsible for all the human rights violations Stemming from OHR's decisions When it comes to potential attribution of bond powers to the UN It is clearly explained above that this is simply impossible under international law In addition, following the successful adoption of the Dayton peace agreement in late 1995 A peace implementation conference was held in London in early December of 1995 With the purpose to mobilize, seek international support for the agreement It was at this London meeting that the peace implementation council was established The peace implementation council or PIC consists of 55 members Mostly countries and interested international organizations Of which an 11-member steering board functions as the executive arm In the instant case, the high representative intervened into the legal system of Bosnia and Herzegovina Substituting domestic authorities In that respect, he acted as an authority of Bosnia and Herzegovina And the challenge act he issued has the characteristics of a decision adopted by domestic authorities And therefore it should be deemed as a decision of the state body of Bosnia and Herzegovina A legally sustainable justification for making a difference between the actions of the high representative In the legislative normative sphere and the measures he is taking against specific individuals cannot be found Article 103 of the charter of the United Nations deals only with a subset of possible conflicts of laws in public international law Namely, conflicts between the obligations of member states of the United Nations arising under different treaties It does not attempt to determine the effect of any such conflict on the obligations of the authorities of member states Under the national constitutional or legal order The commitments of the authorities of Bosnia and Herzegovina And the human rights within the jurisdiction of Bosnia and Herzegovina Are clearly enumerated within the constitution of Bosnia and Herzegovina While the constitution had its origin in an international treaty Annex IV to the general framework agreement for peace in Bosnia and Herzegovina It has functioned for over 11 years as a national constitution The highest legal act of the state of Bosnia and Herzegovina It has a dual nature It has an international aspect as one of the foundations for the existence and international recognition of Bosnia and Herzegovina In the international community of states Also, it has a purely national aspect when perceived from within the country As the highest source of validity for the laws and institutions of Bosnia and Herzegovina Article 2 of the constitution of Bosnia and Herzegovina Guarantees to people in the territory of Bosnia and Herzegovina The highest level of internationally recognized human rights And provides that the European convention on the protection of human rights and fundamental freedoms Shall be applied directly in Bosnia and Herzegovina and have priority over all other law However, in the view of the applicant This does not mean that the constitutional rights of people in the territory of the state Are subject to limitations arising under public international law Pursuant to other treaties such as the charter of the United Nations The reference in article 2 of the constitution of Bosnia and Herzegovina To internationally recognized human rights is not to be understood as a limitation of rights The rights under article 2 depend on the constitution and its interpretation While many of the rights are derived from those formulated in international treaties The constitutional court has drawn extensively on the case law of the European commission And the court of human rights when interpreting rights derived from the European convention So the rights themselves as given effect in Bosnia and Herzegovina Owe their authority to the constitution of Bosnia and Herzegovina as a national constitution Not to the international treaties The constitutional source of the authority of the rights Explains why the authorities of the entities and other public institutions Which have no legal personality in public international law Are required to act in conformity with the rights as interpreted by the constitutional court And it also explains why the constitutional court is able to make final and conclusive determinations Of the scope of constitutional rights when exercising its function of upholding this constitution Under article 6 of the constitution of Bosnia and Herzegovina Additionally, in the opinion on the constitutional situation in Bosnia and Herzegovina And powers of the high representative adopted at 62nd plenary session The European commission for democracy through law, Venice commission Stated as follows However, the main concern is that the high representative does not act as an independent court And that there is no possibility of appeal The high representative is not an independent judge And he has no democratic legitimacy deriving from the people of BH He pursues a political agenda agreed by the international community Which serves the best interest of the country And contributes to the realization of the council of Europe standards As a matter of principle, it seems unacceptable that decisions Directly affecting the rights of individuals taken by political body Are not subject to fair hearing or at least the minimum of due process And scrutiny by an independent court Duration of mandate, judges' independence When it comes to international judges, applicant Moktov would like to stress That he is not arguing that judges were not independent because they are internationals For lack of a better term, but because their short mandate made their independence questionable In the OHR submission, paragraph 27 It is stated that the renewable mandate of two years was due to funding restrictions In redeployments of foreign judicial officials that were subject to international donor funds This is a new reason applicant Moktov would like to add to the ones already explained in the application and following submissions The fact that short mandates of the judges were caused by insecurity of funds Adds to perception that these judges were not independent in performance of their duties As they were dependent on the satisfaction of the institutions that were appointing them, OHR, with their work It is worth mentioning that Moktov case was the first war crimes case tried by court of BH war crimes chamber It is easy to imagine that international judges, hoping that their mandate are extended Made sure that first case is a successful war crimes prosecution The second case tried is the one imposed by OHR, same institution that extension of their mandate depended on It is clear from jurisprudence of this honorable court that state organization, including financial concerns Cannot be an excuse for violation of human rights Additionally, the argument dealing with the possibility that the law on high judicial and prosecutorial counsel envisage Dealing with extending judges mandate for additional two years after the retirement age is completely beside the point In determining whether a body can be considered to independent, notably of the executive and of the parties to the case This court has had regards to manner of appointment of its members and duration of their term of office And the question whether the body presence and appearance of independence Those were judgments of this court, Lecomte, Van Leeuwen and De Mere, Pirsak judgment and Delcourt judgment In the concluding observation of the Human Rights Committee on the report submitted by Armenia under article 40 of the covenant It is stated that the committee notes that the independence of the judiciary is not fully guaranteed In particular, it observes that the election of judges by popular vote for a fixed maximum term of six years Does not ensure their independence and impartiality Similarly, in the concluding observations of the Human Rights Committee on the report submitted by Peru Under article 40 of the covenant, it is stated that the committee notes with concern that judges retire at the end of seven years And require recertification for reappointment, a practice which tends to affect the independence of the judiciary by denying security of tenure And in the concluding observations of the Human Rights Committee on the report submitted by Lithuania under the same article It is stated that with regard to article 14 of the covenant, the committee is concerned that although there are new provisions Aimed at ensuring the independence of the judiciary, district court judges must still undergo a review by the executive After five years of service in order to secure permanent appointment In this regard, the committee recommends that any such review process should be considered only with judicial competence And should be carried out only by an independent professional body In this respect, even appearances may be of a certain importance What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all As far as criminal proceedings are concerned in the accused In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality The standpoint of the accused is important without being decisive What is decisive is whether his doubts can be held to be objectively justified Article 7, prohibition of retroactivity In the letter by this court of November 21st, 2012, applicants were asked to deal with the question Whether state courts change its approach as to whether the 1976 code is more lenient than the 2003 code With regard to sentences for war crimes and if so, has the new approach led to a change of the state court's sentencing practice Applicants would like to respond that the jurisprudence of the court has not changed as such It is more a question of isolated incidents Before the cantonal courts, practice of applying more lenient code that was enforced at the time when the offense in question occurred is continuing It's a Dusko Djaic case, judgment of 3rd December, 2012 The state court did recognize that the 1976 code is more lenient in adopting these six judgments Kurtavic, Novavic, Lavovic, Ashkrabac, Mihaljevic, and Osmic However, this is not a change of jurisprudence but isolated incidents The outcome of cases often depends on the trial appeals chamber, a practice that is creating even bigger inequality among the accused In some cases, the court adopts the 1976 code, while in others it does not For example, in the Lazarev-Stretan et al. case, the court applied that provisions set forth in the 2003 code