Opravdanost ustavnosudskog aktivizmа zarad zaštite ljudskih prava: Evropski sud za ljudska prava i Ustavni sud Bosne i Hercegovine

Abstract

The author analyzes some decisions of the European Court of Human Rights and its interpretive principles and decisions of the Constitutional Court of Bosnia and Herzegovina, in order to answer when the creative approach of the Constitutional Court can be justified. No kind of constitutional court activism is acceptable when it comes to normative control of constitutionality, while it can be in the procedure on appeal. The author claims that constitutional court should decide on the basis of the text of the constitution. The European Court considers that the interpretation should enable the real application of the guaranteed right, but it is disputable when such an interpretation grows into the creation of law, which the author discusses primarily from a theoretical aspect, and then analyzes the case law. The main thesis in the paper is that constitutional activism is justified only in exceptional cases in order to protect human rights and freedoms.