Constitutional Court of Bosnia and Herzegovina

S a r a j e v o

PARTIAL DECISION PART 4

 

Having regard to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina and Articles 35, 37, 54, 57, 58, 59 and 71 of the Court’s Rules of Procedure, the Constitutional Court, at its session held on 18 and 19 August 2000, adopted the following

 

PARTIAL DECISION

 

A. Regarding the Constitution of the Republika Srpska:

 

The Constitutional Court declares the following provisions unconstitutional:

 

a) Article 68 item 16, as modified by Amendment XXXII,

 

b) Article 7 paragraph 1,

 

c) Article 28 paragraph 4.

 

The applicant's request is rejected with regard to the following provisions:

 

a) Article 4, as modified by Amendment LVI item 2,

 

b) Article 80 paragraph 1, as modified by Amendment XL item 1, and Article 106 item 2.

 

B. Regarding the Constitution of the Federation of Bosnia and Herzegovina:

 

The Constitutional Court declares the following parts of provisions unconstitutional:

 

a) Article I.6 (1).

 

The applicant's request is rejected with regard to the following provisions:

 

a) Article III.1 (a) as modified by Amendment VIII,

 

b) Article IV.B.7 (a) (I) through (III) and Article IV.B.8

 

The provisions or parts of provisions of the Constitutions of Republika Srpska and the Federation of Bosnia and Herzegovina that the Constitutional Court has found to be in contradiction with the Constitution of Bosnia and Herzegovina cease to be in effect from the date of the publication in the Official Gazette of Bosnia and Herzegovina.

 

This Decision shall be published in “Official Gazette of Bosnia and Herzegovina”, “Official Gazette of the Federation of Bosnia and Herzegovina” and “Official Gazette of the Republika Srpska”.


 

R e a s o n s

 

I. Proceedings before the Constitutional Court

 

1. On 12 February 1998, Mr. Alija Izetbegović, at the time Chair of the Presidency of Bosnia and Herzegovina, instituted proceedings before the Constitutional Court for the purpose of the evaluation of the consistency of the Constitution of the Republika Srpska (hereinafter: the “Constitution of the RS”) and the Constitution of the Federation of Bosnia and Herzegovina (hereinafter: the “Constitution of the Federation”) with the Constitution of Bosnia and Herzegovina (hereinafter: the “Constitution of BiH”). The request was supplemented on 30 March 1998 when the applicant specified which provisions of the Entities’ Constitutions he considered to be unconstitutional. The applicant requested that the Constitutional Court review the following provisions of the Entities’ Constitutions:

 

A. Regarding the Constitution of the RS:

 

a) The Preamble to the extent that it refers to the right of the Serb people to self-determination, the respect for their struggle for freedom and State independence, and the will and determination to link their State with other States of the Serb people;

 

b) Article 1 which provides that the Republika Srpska is a State of the Serb people and of all its citizens;

 

c) Article 2, paragraph 2 to the extent that it refers to the “boundary line” between the Republika Srpska and the Federation;

 

d) Article 4 which provides that the Republika Srpska may establish special parallel relationships with the Federal Republic of Yugoslavia and its Member Republics, as well as Article 68, paragraph 1 which, under item 16, provides that the Republika Srpska shall regulate and ensure co-operation with the Serb people outside the Republic;

 

e) Article 6, paragraph 2 to the extent that it provides that a citizen of the Republika Srpska cannot be extradited;

 

f) Article 7 to the extent that it refers to the Serbian language and Cyrillic alphabet as in the official language;

 

g) Article 28, paragraph 4 which provides for material State support of the Orthodox Church and the co-operation of the State and the Orthodox Church in all fields, in particular for the preservation, fostering and development of cultural, traditional and other spiritual values;

 

h) Article 44, paragraph 2 which provides that foreign citizens and stateless persons may be granted asylum in the Republika Srpska;

 

i) Amendment LVII item 1, which supplements the Chapter on Human Rights and Freedoms and provides that, in the case of differences between the provisions on rights and freedoms of the Constitution of the RS and those of the Constitution of BiH, the provisions which are more favorable to the individual shall be applied;

 

j) Article 58 paragraph 1, Article 68 item 6, and the provisions of Articles 59 and 60 to the extent that they refer to different forms of property, the holders of property rights and the legal system relating to the use of property;

 

k) Article 80, as modified by Amendment XL, item 1 which provides that the President of the Republika Srpska shall perform tasks related to defense, security and relations with other States and international organizations, and Article 106, paragraph 2 according to which the President of the Republika Srpska shall appoint, promote and recall officers of the Army, judges of military courts and Army prosecutors;

 

l) Article 80, as modified by Amendments XL and L, item 2 which confers onto the President of Republika Srpska the power to appoint and recall heads of missions of the Republika Srpska in foreign countries and propose ambassadors and other international representatives of Bosnia and Herzegovina from the Republika Srpska, as well as Article 90, supplemented by Amendments XLI and LXII, which confers on the Government of the Republika Srpska the right to decide on the establishment of the Republic’s missions abroad;

 

m) Article 98, according to which the Republika Srpska shall have a National Bank, as well as Article 76, paragraph 2, as modified by Amendment XXXVIII, item 1, paragraph 2 which confers onto the National Bank the competence to propose statutes related to monetary policy; and

Article 138, as modified by Amendments LI and LXV, which empowers the authorities of the Republika Srpska to adopt acts and undertake measures for the protection of the Republic’s rights and interests against acts of the institutions of Bosnia and Herzegovina or the Federation of Bosnia and Herzegovina.

 

B. Regarding the Constitution of the Federation

 

a) Article I.1 (1) to the extent that it refers to Bosniacs and Croats as being the constituent peoples.

 

b) Article I.6 (1) to the extent that it refers to Bosnian and Croatian as the official languages of the Federation;

 

c) Article II.A.5 c), as modified by Amendment VII, to the extent that it provides for dual citizenship;

 

d) Article III.1 a) to the extent that it provides for the authority of the Federation to organize and conduct the defense of the Federation;

 

e) Article IV.B.7 a) and Article IV.B.8 to the extent that they entrust the President of the Federation with the task of appointing the heads of diplomatic missions and officers of the military.

 

2. The request was communicated to the People’s Assembly of the Republika Srpska and the Parliament of the Federation of BiH. On 21 May 1998, the People’s Assembly of the Republika Srpska submitted its position on the request in writing. The House of Representatives of the Parliament of the Federation of Bosnia and Herzegovina submitted its reply on 9 October 1998.

 

3. In accordance with the Constitutional Court's Decision of 5 June 1998, a public hearing before the Constitutional Court was held in Sarajevo on 15 October 1998, at which representatives and experts of the applicant and of the House of Representatives of the Federation presented their views on the case. The public hearing was proceeded with in Banja Luka on 23 January 1999. The applicant was represented at the public hearing by Prof. Dr. Kasim Trnka and an expert Džemil Sabrihafizović, the House of Representatives of the Federation by Enver Kreso and an expert Sead Hodžić, the House of Peoples of the Federation by Mato Zovko and an expert Ivan Bender, and the People’s Assembly of the Republika Srpska by Prof. Dr. Radomir Lukić and an expert, Prof. Dr. Petar Kunić. On that occasion, representatives and experts of the applicant, of the House of Representatives and the House of Peoples of the Federation as well as of the People’s Assembly of the Republika Srpska, presented their respective arguments.  

 

4. The case was examined at the following sessions of the Court: on 25 and 26 February 1999, 7 and 8 June 1999, 13 and 14 August 1999, 24 and 25 September 1999, and on 5 and 6 November 1999. At its session held on 3 and 4 December 1999, the Court concluded to commence with the deliberation and voting in the present case at the following session, on the basis of a prepared Draft Decision.

 

5. At the session held between 28 and 30 January 2000, the Court unanimously adopted the first Partial Decision in the case (“Official Gazette of Bosnia and Herzegovina”, No. 11/00; “Official Gazette of the Federation of Bosnia and Herzegovina”, No. 15/00 and “Official Gazette of the Republika Srpska”, No. 12/00).

 

6. At the session held on 18 and 19 February 2000, the Court adopted the second Partial Decision in the case (“Official Gazette of Bosnia and Herzegovina”, No. 17/00; “Official Gazette of the Federation of Bosnia and Herzegovina”, No. 26/00 and “Official Gazette of Republika Srpska”, No. 31/00).

 

7. Pursuant to the Court’s Decision of 5 May 2000, the public hearing was reopened in Sarajevo on 29 June 2000 on the remainder of the case. Prof. Dr. Kasim Trnka and expert Džemil Sabrihafizović represented the applicant; Enver Kreso and expert Sead Hodžić represented the House of Representatives of the Federation, while Prof. Dr. Radomir Lukić and expert Prof. Dr. Petar Kunić represented the People’s Assembly of the Republika Srpska. The representative and the expert of the House of Peoples of the Federation, having been invited to participate according to the Court’s Rules of Procedure, failed to appear. After the public hearing, the Court reconvened for a session to deliberate, vote and adopt the third Partial Decision in the case on 30 June and 1 July 2000 (“Official Gazette of Bosnia and Herzegovina”, No. 23/00; “Official Gazette of the Federation of Bosnia and Herzegovina”, No. 39/00 and “Official Gazette of Republika Srpska”, No. ___).

 

8. Deliberations proceeded at the Court session held on 18 and 19 August 2000 and votes were taken on the following remaining provisions of the request:

 

A. Regarding the Constitution of the RS:

 

a) Article 4, as modified by Amendment LVI, item 2 which provides that the Republika Srpska may establish special parallel relationships with the Federal Republic of Yugoslavia and its member republics, as well as Article 68, which under item 16, as modified by Amendment XXXII, provides that the Republika Srpska shall regulate and ensure co-operation with the Serb people outside the Republic;

 

b) Article 7 to the extent that it refers to the Serbian language and Cyrillic alphabet as being the official language;

 

c) Article 28, paragraph 4 which provides for material State support of the Orthodox Church and the co-operation of the State and the Orthodox Church in all fields, in particular for the preservation, fostering and development of cultural, traditional and other spiritual values;

 

d) Article 80, as modified by Amendment XL, item 1 which provides that the President of the Republika Srpska shall perform tasks related to defense, security and relations with other States and international organizations, and Article 106, paragraph 2 according to which the President of the Republika Srpska shall appoint, promote and recall officers of the Army, judges of military courts and Army prosecutors;

 

B. Regarding the Constitution of the Federation

 

a) Article I.6 (1) to the extent that it refers to Bosnian and Croatian as the official languages of the Federation;

 

b) Article III.1 a), as modified by Amendment VIII, to the extent that it provides for the competence of the Federation to organize and conduct the defense of the Federation;

 

c) Article IV.B.7 a) (I) through (III) and Article IV.B.8 of the Constitution of the Federation to the extent that they relate to the civilian command authority of the Presidency of Bosnia and Herzegovina.

 

II. Admissibility

 

9. The Court declared the entire request admissible in its Partial Decision on the case of 29 and 30 January 2000 (“Official Gazette of Bosnia and Herzegovina”, No. 11/00; “Official Gazette of the Federation of Bosnia and Herzegovina”, No. 15/00 and “Official Gazette of Republika Srpska”, No. 12/00).

 

III. Merits

 

A.  Regarding the Constitution of the Republika Srpska

 

a.) The challenged provisions of Article 4, as modified by Amendment LVI, item 2 and Article 68 item 16, as modified by Amendment XXXII, of the Constitution of the RS read as follows:

 

Article 4

 

The Republic may, according to the Constitution of Bosnia and Herzegovina, establish special parallel relations with the Federal Republic of Yugoslavia and its Member Republics.

 

Article 68 item 16

 

The Republic shall regulate and ensure:

[…]

 

16. Co-operation with the Serb people outside the Republic;

[…].

 

10. The applicant asserts that Article 4 as stated is not in conformity with Article III.2 (a) of the Constitution of BiH. This provision lays down the right of the Entities to establish special parallel relationships with neighboring States consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina. The applicant argues that the Entities are thus not allowed to establish such relationships with component units of neighboring States. Moreover, Article 68, item 16 would have a discriminatory character since this provision would allow for co-operation only with the Serb people, but not with other peoples outside the Republic.

 

11. At the public hearing held on 15 October 1998 the applicant’s representative supplemented this argument with the assertion that the Constitution of BiH allowed for special parallel relationships with all neighboring States whereas the Constitution of the RS  – in contradiction to that rule – restricted such relationships to the Federal Republic of Yugoslavia (henceforth: the FRY). Moreover, the said provision of the Constitution of the RS violated the territorial integrity of BiH since it did not include the respective constitutional limitation of Article III.2 (a) of the Constitution of BiH. Even if the said provision of the Constitution of the RS could be seen as a mere declaratory repetition of the text of the Constitution of BiH, its incomplete quotation would alter the legal meaning of the text and would, therefore, be in contradiction with the Constitution of BiH.

 

12. With regard to the co-operation with the Serb people outside the Republic, the representative of the applicant further outlined that members of peoples other than the Serb people of the RS could co-operate solely with the Serb people, but not with others. Moreover, Article III.2 (a) of the Constitution of BiH grants the right to establish special parallel relationships with the neighboring States, but there would be no right of the Entities to likewise establish such relationships with peoples.

 

13. The People’s Assembly of RS, in its written reply, challenged the lack of conformity with the Constitution of BiH since Article 4 of the Constitution of the RS, with its reference to the FRY, would simply specify that right under the Constitution of BiH to freely choose with which of the neighboring States the RS could establish special parallel relationships. Moreover, the wording »neighboring States« would not exclude the possibility of establishing special parallel relationships with component units if the Constitutions of the neighboring States provide for such a possibility. In fact, this possibility would depend on their constitutional structures. Finally, the People’s Assembly asserted that the provisions on co-operation with the Serb people outside the Republic neither have any discriminatory character nor deny the territorial integrity of BiH. The challenged provisions would accordingly be in conformity with Article III.2 (a) of the Constitution of BiH since this provision does not prohibit cultural, artistic and scientific co-operation with its own people wherever they may live.

 

14. At the public hearing of 23 January 1999, the representative of the RS People’s Assembly reasserted the argument that the right to establish special parallel relationships is a right and not an obligation and therefore the adopters of the Constitution of the RS decided to establish such relationships exclusively with the FRY. In addition, there is no discrimination since the co-operation of non-Serb people with their co-nationals is not prohibited.

 

The Constitutional Court finds:

 

15. Article III.2 (a) of the Constitution of BiH indeed grants its Entities the right to establish special parallel relationships with the neighboring States of Bosnia and Herzegovina such as the FRY. The constitutional problem raised thus is not this specification with regard to the FRY, but whether the wording of the provision excludes special parallel relationships with other neighboring States. However, as can be seen from the text of Article 4 that the RS “may, according to the Constitution of BiH, establish special parallel relationships [...]”, the Constitution of the RS does neither establish such relationships with the FRY and its Member Republics ex constitutione, nor explicitly exclude the possibility to establish special parallel relationships with other neighboring States. As far as the component units of neighboring States are concerned, the establishment of special parallel relationships with such units thus depends on their rights within their States and the rights granted under the Constitutions of these States. The Constitution of BiH, under the constitutional limitation of its sovereignty and territorial integrity, does not prohibit such a possibility either. As for this restriction, it is true that the text of Article 4 does not specifically mention the sovereignty and territorial integrity of Bosnia and Herzegovina. But the more general reference to the Constitution of BiH must be read in line with this constitutional restriction so that the Constitution of the RS complies with the restrictions of the Constitution of BiH.

 

16. Hence, following the established principle of interpretation that all legal regulations must be read in conformity with the Constitution as long as it is possible, the Constitutional Court finds that Article 4 may be interpreted in a way to be consistent with Article III.2 (a) of the Constitution of BiH and with the principle of non-discrimination according to Article II.4 of the Constitution of BiH. Therefore, Article 4 of the Constitution of the RS does not violate the Constitution of BiH.

 

17. Regarding the co-operation with the Serb people outside the Republic, according to Article 68 item 16 of the Constitution of the RS, the Constitutional Court stresses the striking difference in the text of this provision. Unlike Article 4, the language of Article 68, first paragraph creates a constitutional obligation on the governmental authorities of RS as can be seen from the terms “shall regulate and ensure”. Although this provision may again be interpreted in conformity with the Constitution of BiH so as to neither exclude co-operation, in particular of members of other peoples, with their co-nationals outside the Republic, nor pose an obligation on them to co-operate with the Serb people outside the Republic, it must be concluded from the constitutional obligation that these rules should have the effect of creating a specific preference for the Serb population of the Republika Srpska. The intent to create such a preference may also be concluded from the argument of the representative of the People’s Assembly of RS that the “majority of citizens of the Republika Srpska are Serbs” so that the adopters of the Constitution of the RS did decide on the creation of this rule for that “very practical matter”. Nevertheless, contrary to the understanding of one of the parties, not only does exclusion but also preferences constitute discrimination as seen from the definition of Article 1, paragraph 1 of the International Convention on the Elimination of All Forms of Racial Discrimination which must, according to Annex I to the Constitution of BiH, be applied directly. Paragraph 4 thereof allows preferences “for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals’ equal enjoyment or exercise of human rights and fundamental freedoms”. An adequate advancement of the Serb people in the RS is, however, on the basis of their factual majority position certainly not “necessary” in order to ensure them equal treatment.

 

18. It follows that item 16 of Article 68 of the Constitution of the RS, by creating a preference which cannot be legitimized according to Article 1, paragraph 4 of the Convention on the Elimination of All Forms of Racial Discrimination, violates the obligations set forth in Article 2, paragraph 1 item (c) thereof, which reads as follows: “Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”. The same obligation ensues from Article I, paragraph 3, sub-paragraph (a) and Article II, paragraph 1 of Annex 7 taken in conjunction with Article II, paragraph 5 and Article III, paragraph 2, item (c) of the Constitution of BiH.

 

19. Item 16 of Article 68 of the Constitution of the RS is therefore unconstitutional.

 

b.) The challenged provision of Article 7 of the Constitution of the RS reads as follows:

 

The Serbian language of iekavian and ekavian dialect and the Cyrillic alphabet shall be in official use in the Republic, while the Latin alphabet shall be used as specified by law.

 

In regions inhabited by groups speaking other languages, their languages and alphabet shall also be in official use, as specified by law.

 

20. The applicant considers that this provision to be in conflict with Articles I.2, II.1, II.3 (h) and II.4 of the Constitution of BiH. He contends that the challenged provision constitutes discrimination on ethnic grounds having, in particular, in mind the multi-ethnic composition of the population living on the territory of today's Republika Srpska prior to the war and the right of people to return to their homes of origin according to Article II.3 and 5 of the Constitution of BiH as well as Annex 7 to the General Framework Agreement. It is stressed that the returnees must be treated as equal citizens.

 

21. The applicant’s representatives outlined at the public hearing before the Court that the challenged provision would create a special right only for Serbs against the necessity to assure full equality of languages and scripts of the constituent peoples. Anything below this standard would thus constitute discrimination since this is one of the conditions for their political, legal, and cultural equality. Furthermore, individuals must have the same rights as the groups to which they belong, i.e. a right to officially communicate in their language. It was also pointed out that the restrictions on the use of the Bosnian and Croatian languages following from the challenged provision would also violate other individual rights and freedoms as guaranteed by Article II.3 of the Constitution of BiH, such as freedom of expression and the right to education. In addition, this restriction would be one of the main reasons why expelled persons did not return to their pre-war homes in the Republika Srpska.

 

22. The People’s Assembly of RS raised in its written statement the objection that Article 7 did not violate the provisions of the Constitution of BiH as stated in the request. The challenged provision, paragraph 1 in particular, would regulate the official use of the Serbian language in both forms and the Cyrillic alphabet with a legislative authorization to regulate the use of the Latin alphabet, whereas paragraph 2 would provide for the official use of the languages of other language groups in areas where they live. The Constitution of the RS would thus not interfere with the private use of languages and alphabets that is, in addition, explicitly guaranteed by Article 34 of the Constitution of the RS.

 

23. At the public hearing held on 23 January 1999, the representative of the People’s Assembly of RS underlined the distinction that had to be drawn between the official and private use of languages and alphabets with the latter being guaranteed as a fundamental right by Article 34 of the Constitution of the RS. Additionally, he referred to the case of Quebec as an example where the official use of English was entirely prohibited and the ruling of the International Court of Justice that there would be no violation of the right to use one's language, if, at least, in private schools the use of the minority language was allowed. None of these possibilities were excluded in the RS.

 

24. The expert for the House of Peoples of the Federation Parliament raised, at the public hearing, the problem of whether the Entities did have the responsibility to regulate the official use of languages and answered this problem in the affirmative since the Entities have the power to regulate all matters which are not expressly assigned to the institutions of Bosnia and Herzegovina.

 

 

 

 

 

The Constitutional Court finds:

 

25. With regard to the basic distinction between the official use of the Serbian language and the right to use one's language, i.e. “in private affairs”, the Court must clarify the scope of the meaning which might be attributed to the phrase “official use” from Article 7 of the Constitution of the RS. 

 

26. It is necessary therefore to take the “Law on the Official Use of Languages and Scripts” (“Official Gazette of the RS”, No. 15/96) into consideration. The provisions of this Law regulate all fields where the Serbian language and the Cyrillic alphabet must be used, i.e. as the language of instruction and for textbooks in the entire educational system, in print and electronic media, by all public authorities in their internal and external communication. Moreover, corporate names and all commercial signs as well as road signs and topographical designations must be written in Cyrillic letters. The only exceptions to be found are established for the use of the Latin alphabet.  Thus, according to Article 3, this alphabet must be used in the second, third and fourth year of elementary education one day per week and according to Article 5, paragraph 3, religious communities and national-cultural associations of other peoples and national minorities in the RS may use both forms of the Serbian language, i.e. the ekavian and ijekavian form, and both alphabets. Moreover, the Constitutional Court of the Republika Srpska had all provisions of this Law prescribing the use of only the ekavian form declared unconstitutional (“Official Gazette of the RS”, No. 7/98).

 

27. As it can be seen from this Law, the meaning of the phrase “official use” is thus given a very broad scope of application, not only in relation to governmental powers but also in the sphere of media and economics. Even if these language provisions were not strictly followed in the Republika Srpska, it cannot be concluded from such illegal practice that these rules were not in force or did not need to be observed.

 

28. As far as the legally allowed official use of other languages under Article 7 of the Constitution of the RS is concerned, only the Laws on Elementary and Secondary School Education (“Official Gazette of the RS”, No. 4/93), as opposed to the Law on the Official Use of Languages and Alphabets (see supra), provide for the possibility that in classes with more than twenty or thirty pupils whose mother tongue is not Serbian, their language must be taught, whereas in schools where all pupils belong to another ethnic group, their language is even the language of instruction. The teaching of the Serbian language is obligatory in any case.

 

29. However, not these legal specifications for the learning of languages other than the Serbian language as such are of interest for the interpretation of the challenged constitutional provisions, but its territorial restriction to regions inhabited by other language groups. Article II.5 of the Constitution of BiH “in accordance with Annex 7 to the General Framework Agreement” – as the explicit text of that constitutional provision reads – poses the constitutional obligation to provide for the right of all refugees and displaced persons to freely return to their homes of origin and for the right to have restored to them property of which they were deprived in the course of hostilities since 1991. It is necessary thus to take the situation of 1991 into due account, as was done by the Constitutional Court in its third Partial Decision in this case (“Official Gazette of Bosnia and Herzegovina”, No 23/00) at its paragraphs 85 to 87. As confirmed by the facts ascertained by the Court, the territory where the Republika Srpska was established later on did form an area with the so-called “mixed population” as was the case all over the territory of the former Republic of Bosnia and Herzegovina. Hence, due to the fact of a territorially integrated population structure, territorially separated “regions inhabited by groups speaking other languages”, as it is often the case in Western Europe, did not exist, nor is this – “due to the hostilities since 1991” – the case now. The respective language provisions of the Laws on Elementary and Secondary School Education are further arguments in favor in this respect since they are valid on the entire territory of the Republika Srpska and do not have territorial restriction.

 

30. In conclusio, the Court finds it established that the scope of the term “official use” of the Serbian language and Cyrillic alphabet reaches far beyond the relationships vis-à-vis governmental powers into the spheres of media and economics which are usually seen as “private affairs” in democratic societies. Moreover, “regions inhabited by groups speaking other languages” in the wording of paragraph 2 of Article 7 do not exist. Such regions could only be created through the territorial segregation in the course of the return of refugees and displaced persons so that this provision is of an inherently discriminatory character.

 

31. However, Article II.3 (m) of the Constitution of BiH does provide for the right to liberty of movement and residence that must be seen in connection with the specific right of all refugees and displaced persons freely to return to their homes of origin. These rights cannot be read only in a negative sense as the protection against any intrusion by public authorities, but also contain a positive obligation to protect these rights and freedoms. This obligation may be attested to already from the text of Article I.4 of the Constitution of BiH that, inter alia, “[...] the Entities shall not impede full freedom of movement of persons, goods, services, and capital throughout Bosnia and Herzegovina”. Moreover, Article II.1 of Annex 7 to the GFA – which is referred to by Article II.5 of the Constitution of BiH – explicitly states that the Parties, i.e. also the Republika Srpska, must »create in their territories the political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without preference for any particular group«. In the final analysis, thus, individual rights must be regarded as effective rights to be actually exercised in a non-discriminatory manner.

 

32. The wide range of the meaning of “official use” of the Serbian language and Cyrillic alphabet and the territorial restriction for the official use of other languages in Article 7 of the Constitution of the RS, however, go far beyond the per se legitimate aim to regulate the use of languages insofar as these provisions have the effect of hindering the enjoyment of rights under Article II.3 (m) and 5 of the Constitution of BiH. Moreover, they are also in contradiction with Article I.4 of the Constitution of BiH. The Constitutional Court thus declares Article 7 paragraph 1 of the Constitution of the RS unconstitutional.

 

33. It is not necessary for the Constitutional Court to examine the applicant’s assertion that the Constitution of BiH would require the full equality of languages and alphabets of the constituent peoples or the alleged violation of freedom of expression and the right to education. The same holds with regard to the example of the Quebecois Language Act which allows for the use of French only and was invoked by the representative of the People’s Assembly of RS to support the claim that Article 7 of the Constitution of the RS did not violate the Constitution of BiH, particularly the individual rights guaranteed thereby. Contrary to the conclusions of the party to the proceedings, the Canadian Supreme Court declared provisions of Quebec's Charter of the French Language unconstitutional due to a violation of the Canadian Charter of Rights (cf. Attorney General of Quebec v. Association of Quebec Protestant School Board 1984 and Quebec v. Ford 1988).

 

34. The regulation of languages by the Entities is per se a legitimate aim, but it might encroach upon individual rights and the positive obligations quoted above which serve as an institutional safeguard for a “pluralist society” and the “market economy” according to the Preamble of the Constitution of BiH. Given the clear and present danger which unrestricted regulations of official languages through the Entities create with regard to these basic normative principles and institutional safeguards of the Constitution of BiH, there is an implicit but necessary responsibility of the State of BiH to provide for minimum standards for the use of languages through the framework legislation. In doing so, the legislation of BiH must account for the effective possibility of the equal use of the Bosnian, Croatian and Serbian languages, not only before the institutions of Bosnia and Herzegovina but also at the level of the Entities and any subdivisions thereof with regard to the legislative, executive and judicial powers and in public life. The highest standards of Articles 8 through 13 of the European Charter for Regional and Minority Languages should thus serve as a guideline for the three languages mentioned, so that the establishment of private schools, as invoked, for instance, by the representative of the People’s Assembly of RS, would not meet this standard. Lower standards mentioned in the European Charter might – taking the appropriate conditions into consideration – thus be sufficient only for other languages.

 

c.) The challenged provision of Article 28, paragraph 4 of the Constitution of the RS reads as follows:

 

The State shall materially support the Orthodox Church and it shall co-operate with it in all fields and, in particular, in preserving, cherishing and developing cultural, traditional and other spiritual values.

 

35. The applicant argues in his request that the said provision constitutes prima facie discrimination on religious grounds and thus violates Articles I.2, II.1, II.3 (g) and Article II.4 of the Constitution of BiH as well as the international conventions and human rights protection instruments which form an integral part of the Constitution of BiH.

 

36. At the public hearing held in October 1998, the applicant’s representative reasserted the request to the extent that the challenged provision would put the Orthodox Church into a privileged position so that all other religions and religious communities were discriminated against thereby. The challenged provision would not only violate the non-discrimination provision of Article II.4 of the Constitution of BiH, but also the freedom of religion of other religious groups in accordance with Article II.3 (g). That this assertion was not hypothetical could be verified by the ongoing discriminatory conduct of the authorities of the Republika Srpska of preventing the reconstruction of the mosques that had been destroyed during the war. He further claims that this mode of conduct was one of the reasons that prevented the return of refugees and displaced persons.

 

37. In its written statement, the People’s Assembly of RS opposed the assertion that the provision of paragraph 4 of Article 28 violated freedom of religion or discriminated on religious grounds if seen in connection with paragraphs 1 and 2 of thereof since these provisions guarantee the freedom of religion and the equality of religious communities. Moreover, paragraph 4 would be of declarative character only and similar to Article 3 of the Greek Constitution or to Article 16, paragraph 3 of the Spanish Constitution. In any case, these provisions neither constituted discrimination nor violated the freedom of religion by introducing a “state religion”.

 

The Constitutional Court finds:

 

38. All the claims of the applicant pose two issues of constitutional concern. Firstly, is there a discrimination against other churches and religious denominations and secondly, is there a violation of freedom of religion in connection with discrimination on ethnic grounds?

 

39. Regarding the alleged “privileged position of the Orthodox Church” in relation to other churches and religions, the Constitutional Court, however, cannot follow the request. Unlike Article 28, paragraph 2 of the Constitution of the RS, which provides for a collective right of equality of religious communities, there is no such provision included in the Constitution of BiH or in any of the international instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, the European Commission of Human Rights has held that even a “State Church” system cannot in itself be considered to present a violation of Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, under condition that it includes specific safeguards for the individual's freedom of religion (See Darby v. Sweden, Report of the European Commission of Human Rights of 9 May 1989, Series A No. 187, at para. 45). Neither at the level of international law nor in the Constitution of BiH can an explicit rule of separation of church and state or the equality of different denominations or religious communities be found. Nor is the Constitution of the Republika Srpska itself a standard of review! The Constitutional Court of Bosnia and Herzegovina here carefully observes the sphere of competences of the Constitutional Court of the Republika Srpska. The request of the applicant is in this respect therefore unfounded from the very outset.

 

40. However, it follows from the above stated case law that the Constitutional Court will attach particular importance to the question whether there are specific safeguards for the individual's freedom of religion that must also be guaranteed according to Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights, with respect to the general principles enshrined in Article 9, stressed in the Kokkinakis v. Greece case (Series A, vol. 260-A, 1993) that “freedom of thought, conscience and religion is one of the foundations of a 'democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics and the unconcerned. The pluralism, inseparable from a democratic society for which has been dearly fought over the centuries, depends on it” (at para. 31). The very same relationship of these basic values as institutional prerequisites of democracy may also be recognized in paragraph 3 of the Preamble of the Constitution of BiH.

 

41. Although “states” may have “a wide margin of appreciation” in their relationship with churches as can be seen from the examples of Great Britain or Greece, freedom of religion must therefore be effectively guaranteed. It is for the Constitutional Court thus to determine whether the requirements have been complied with. Or, in the words of the European Court expressed in another context: “It must satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness” (Mathieu-Mohin and Clairfayt v. Belgium, 9/1985/95/143, at para. 52). In conclusion, the provisions of paragraphs 1 and 2 of Article 28 of the Constitution of the RS, as the representative of the People’s Assembly of RS invoked them, are a necessary requirement, but are not sufficient for the judgment that the essence and effectiveness of freedom of religion in the RS could not be infringed.

 

42. Accordingly, in addition to the positive obligations which are regulated by the Constitution of BiH, as already outlined above in connection with the challenged Article 7 of the Constitution of the RS,  the European Court of Human Rights concluded in the case of Kokkinakis (supra) and Otto-Preminger Institut v. Austria (Series A, vol. 295, 1994) that freedom of thought, consciousness and religion understands an obligation of the authorities not only to abstain from an infringement of this freedom, but also to create all necessary requirements for every person to be able to freely manifest her religion. In practice, this means that “the authorities are not allowed to create a public atmosphere that prevents the free manifestation of religion” (Otto-Preminger-Institut, at para. 47).

 

43. However, the very language of Article 28, paragraph 4 creates serious doubts as to whether there can be such a “public atmosphere” to the extent that this provision establishes a special link between the Republika Srpska and the Orthodox Church in order to act jointly for “preserving, fostering and developing cultural, traditional and other spiritual values”. This provision is therefore not only of a simple “declarative” character, but its clearly established aim is a constitutionally guaranteed influence of the Orthodox Church on the “public atmosphere” as far as values and belief-systems are concerned. The practice will show whether it amounts to a prevention of the free manifestation of religion in combination with discrimination on ethnic or religious grounds.

 

44. With regard to such a practice, the Court ascertained the following factual situation: religions and churches other than the Orthodox Church, like the Catholic religion or Islam, have always been part of the multi-religious life in Bosnia and Herzegovina in the sense of the pluralism which is required both by the European Convention and the Constitution of BiH as a necessary precondition for a democratic society until the time when most of the mosques and other religious buildings have been destroyed, due to the hostilities since 1992.

 

45. In Case No.(B) 842/00 on the Violation of Property Rights of the Catholic Church and Violation of the Freedom of Religion of Catholic Believers in Diocese of Banja Luka, addressed to Mr. Milorad Dodik, Prime Minister of the Republika Srpska Government, the Ombudsperson for BiH concluded in her Special Report that the bodies of the Catholic Church, their clergy and the Catholic believers themselves, are prevented from returning to church premises, which are currently occupied by third persons, due to the failure of the competent authorities of the Republika Srpska to undertake effective and appropriate measures to restore the property to them. She therefore considered that they were prevented from practicing their religious ceremonies and freely manifesting their religious beliefs using their full existing capacities in violation of Article 9 of the European Convention on Human Rights.

 

46. Furthermore, none of the mosques in the entire territory of the RS, destroyed during the war have been reconstructed so far. It can be viewed as circumstantial evidence for a pattern of ongoing discrimination, particularly against the Islamic Community, as the Human Rights Chamber has recently ruled in The Islamic Community of Bosnia and Herzegovina vs. The Republika Srpska case (No. CH/96/29). The Chamber refrained from reviewing the provision challenged in this case, but raised serious concern “whether the privileged treatment afforded to the Serbian Orthodox Church, represents, in itself, a discriminatory treatment of institutions or individuals who do not form part of that Church”. It concluded that “the less favorable conditions to which the respondent Party's Constitution subject the applicant's members, is a further element to be borne in mind in the examination of whether their treatment as a whole represents discrimination” (at para. 157). There are numerous incidents reported which give proof of a “public atmosphere preventing the free manifestation of religion” in the Republika Srpska since the Human Rights Chamber found it established in the said case that Muslim believers have been subject to assault and provocation both at public funeral processions and during worship without any intervention by the local police (at para. 167). The Human Rights Chamber thus concluded that this attitude of the authorities has hampered – and continues to hamper – the local Muslim believers' enjoyment of their right to freedom of religion for reasons and to an extent which, “seen as a whole, are clearly discriminatory” (at para. 173). However, as seen from the joint OHR, OSCE and UNMBiH Press Release of 5 May 2000, the authorities of the Republika Srpska violated their obligations under Annex 6 to the General Framework Agreement to implement this decision of the Human Rights Chamber.

 

47. In conclusio, the Court finds that the authorities of the Republika Srpska failed to fulfill their positive obligation to create all the necessary requirements for every person to be able to freely manifest his or her religion. The challenged provision of Article 28, paragraph 4 which gives the Orthodox Church an important influence on the creation of value and belief-systems must be thus considered as the constitutional basis which allows the authorities “to create a public atmosphere which prevents the free manifestation of religion”.

 

48. As far as the material support of the Orthodox Church is concerned, the Orthodox Church is clearly given a privilege by this constitutional provision, which cannot be legitimized in constitutional terms and is therefore inherently discriminatory.

 

49. Article 28, paragraph 4 of the Constitution of the RS is therefore unconstitutional.

 

d) The challenged provisions of Article 80, paragraph 1 of the Constitution of the RS, as supplemented by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of the RS read as follows:

 

Article 80 paragraph 1 (relevant parts)

 

The President of the Republic shall:

 

1) Exercise, in accordance with the Constitution and law, tasks related to defense, security and relations of the Republic with other states and international organizations.

 

Article 106, paragraph 2 of the Constitution of the RS

 

The President of the Republic shall appoint, promote and recall officers of the army of Republika Srpska in accordance with law, and shall appoint and recall the presidents, judges and lay-judges of the military courts as well as the army prosecutors.

 

50. The applicant argues that these provisions violate Article V.5 (a) of the Constitution of BiH, under which each member of the Presidency of Bosnia and Herzegovina shall have civilian command authority over the armed forces. The President of the Republika Srpska could thus not exercise defense related responsibilities in the field of civilian command over the armed forces.

 

51. At the public hearing held on 5 October 1998, an expert appointed by the applicant further outlined that it clearly follows from Article V.5 (a) as a constitutional concept that all the armed forces must operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina.

 

52. At the public hearing of 29 and 30 June 2000, the applicant's representative pointed out that the non-conformity of the provisions of the Entities’ Constitutions with Article V.5 (a) of the Constitution of BiH, which provides for the civilian command authority of the members of the Presidency over the armed forces, was obvious. The notion of civilian command authority would undoubtedly understand, inter alia, the matter of appointment and dismissal of the highest officers of the armed forces.

 

53. The People’s Assembly of the Republika Srpska in its written statement denied the inconsistency of the challenged provisions with Article V.5 (a) of the Constitution of BiH on grounds that civil command and supreme command were not identical concepts. It maintained that the armed forces are instruments of the Entities so that supreme military command, as a matter of fact, had to be exercised by the institutions of the Entities whereas the activities for the coordination of armed forces in Bosnia and Herzegovina had to be exercised through the Standing Committee on Military Matters. For the same reasons, the People’s Assembly also denied the alleged inconsistency of Article 106, paragraph 2 of the Constitution of the RS.

 

54. At the public hearing, the representative of the People’s Assembly of RS further argued that, according to Article III.1 of the Constitution of BiH, the responsibility to regulate military matters was not within the responsibility of the institutions of Bosnia and Herzegovina. The Entities would thus be allowed to regulate matters of defense. Moreover, the Constitution of BiH did not provide for a definition of the term “civilian command” so that it was “meaningless”. Accordingly, supreme command during peace and war would be something different, neither being under the responsibility of the Standing Committee on Military Matters nor in that of any other institution of Bosnia and Herzegovina, leaving room for the Entities to exercise legislative power in this field. Finally, in his opinion, it was not necessary to stress the big differences in the organization of defense and armed forces in the Republika Srpska and the Federation of Bosnia and Herzegovina since these were “natural” and the Entities would thus exercise their right to “self-organization”.

 

The Constitutional Court finds:

 

55. The status of the armed forces in Bosnia and Herzegovina is of a unique nature. Bosnia and Herzegovina does not have unified armed forces at the State level. The Constitution of Bosnia and Herzegovina does not provide for the existence of the armed forces of Bosnia and Herzegovina as a unified organizational structure of Bosnia and Herzegovina, i.e. it does not define the formation, the organization or the command over unified armed forces to be a responsibility of Bosnia and Herzegovina.

 

56. According to the Constitution, there shall be armed forces of the Entities, and, in accordance with the aforementioned, their position and competence must be viewed in light of the provisions of Articles III.1, V.3 and 5 of the Constitution of Bosnia and Herzegovina. Namely, Article V.5 of the Constitution of Bosnia and Herzegovina refers to the armed forces of the Entities as the Armed Forces in Bosnia and Herzegovina, and not the armed forces of Bosnia and Herzegovina. Those two are entirely different notions. Article V.5 of the Constitution of Bosnia and Herzegovina reads: (a) Each member of the Presidency shall, by virtue of the office, have civilian command authority over Armed Forces. Neither Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina. All armed forces in Bosnia and Herzegovina shall operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina. The nature of those armed forces and their possible use can be seen clearly, as well as the nature of the command itself in a concrete situation. Therefore, all the armed forces in Bosnia and Herzegovina are obliged to act in accordance with the sovereignty and territorial integrity of Bosnia and Herzegovina, which necessarily implies their function in that respect, but also a certain degree of coordination between them is necessary for the realization of this function. However, in this case, it is most important to correctly interpret the provision, Article III.1 of the Constitution of Bosnia and Herzegovina, where among the responsibilities of Bosnia and Herzegovina, joint armed forces are not mentioned anywhere. Besides, in Article V.3 of the Constitution of Bosnia and Herzegovina, which provides for the responsibilities of the Presidency of Bosnia and Herzegovina and the manner of decision-making within it, the responsibility of civilian command over the armed forces in Bosnia and Herzegovina is not mentioned anywhere. Therefore, the provision of Article V.5 of the Constitution of Bosnia and Herzegovina  dealing with the Standing Committee on Military Matters (that is also the title of this chapter of the Constitution of Bosnia and Herzegovina, which is a part of the section of the Constitution relating to the Presidency of BiH), which is not an institution of Bosnia and Herzegovina, but a body of a coordination character, must be interpreted systematically, i.e. brought in connection with the provisions of Article III.1 and Article V.3. This virtually means that it must be established how the armed forces in Bosnia and Herzegovina could fulfill their function under Article V.5 (a) – to function in accordance with the sovereignty and territorial integrity of Bosnia and Herzegovina – although they are not organized in a unified way at the level of Bosnia and Herzegovina.

 

57. The Constitution of BiH explicitly provides that in Bosnia and Herzegovina there shall be the armed forces of the Entities. The Constitution also provides that they may not enter the territory of the other Entity without the consent of its government and a decision of the Presidency of Bosnia and Herzegovina. The Constitutions of the Entities regulate the status and the responsibility for the armed forces as well as command over them. However, the question that arises is what is the responsibility of the members of the Presidency of Bosnia and Herzegovina as provided by Article V.5 (a) which reads – each member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces. In the interpretation of this Article, the following must be concluded:

 

Firstly, this Article does not regulate over which armed forces, nor does it expressly define the meaning of the notion of civilian command authority.

 

Secondly, although the Presidency of Bosnia and Herzegovina is a collegial organ (institution), there is a reference here to the responsibility of each of the members of the Presidency.

 

Third, the same Article provides that the armed forces of one Entity shall not enter the territory of the other Entity without the consent of the government of that Entity, and – in this case the solution is different – the Presidency of Bosnia and Herzegovina. The question that arises is: why is this responsibility of the Presidency unlike the previous provision according to which a member of the Presidency has civilian command authority over the armed forces in Bosnia and Herzegovina.

 

For the correct interpretation of this Article, i.e. of the status of armed forces in Bosnia and Herzegovina and the command over them, a distinction should be drawn between the function (use) of the armed forces in the Entities and possibly at the level of Bosnia and Herzegovina in accordance with Article V.5 (a), when the coordination, i.e. the responsibility of the members of the Presidency, under Article V.5 should come into play. Namely, if it would be a matter of the joint activities of the armed forces in Bosnia and Herzegovina, the civilian command of the members of the Presidency would be accounted for, but not that of the Presidency as a collegial body (a joint organ). Precisely for that reason, the question arises as to why does the Constitution of Bosnia and Herzegovina provides for the civilian command of each member of the Presidency and not of the Presidency as an institution, what does it mean and over which the armed forces is it being exercised?  If it were necessary to jointly use the armed forces in Bosnia and Herzegovina due to an external threat, for instance, a certain degree of coordination in the command over them would be necessary and that would practically mean the decision-making on the manner of employment of the armed forces in Bosnia and Herzegovina. If the members of the Presidency are the only ones to have this command, it is logical for the decision on the use of the armed forces of the Entities to be taken by the member of the Presidency from the respective Entity, apparently with the consent of Entity authorities, i.e. in coordination with them, which is the essence of this provision.

 

Nevertheless, what is decisive in this case is the fact that these provisions are not situated among the provisions on the responsibilities of the Presidency of Bosnia and Herzegovina, but among the provisions on the Standing Committee, Article V.5 (a), which imposes the conclusion that such command would be used only in a situation referred to in that Article – in case of a threat to the sovereignty and territorial integrity of Bosnia and Herzegovina, and in case of the competence of the Standing Committee – coordination, in favor of which is the fact that the members of the Presidency are also members of the Standing Committee. Coordination at the level of Bosnia and Herzegovina could only be ensured in this way, considering the fact that Bosnia and Herzegovina does not have unified armed forces and a unified command by the Presidency of Bosnia and Herzegovina as a collegial organ (institution) cannot accordingly exist here. It speaks precisely to the character of the armed forces in Bosnia and Herzegovina. It is for exactly this reason that in Bosnia and Herzegovina there is no civilian command authority of the Presidency of Bosnia and Herzegovina, but a civilian command of the members of the Presidency over the armed forces of the respective Entity from which they were elected, but only in the case referred to in Article V.5 (a) of the Constitution of Bosnia and Herzegovina. That, however, does not mean that the armed forces are not still the armed forces of the Entities and that supreme command over them is not ensured within the Entities, pursuant to their respective Constitutions.

 

58. Therefore, the Constitutional Court concludes that the challenged provisions of Article 80, paragraph 1 of the Constitution of the Republika Srpska, as modified by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of the Republika Srpska are not in contravention of the Constitution of Bosnia and Herzegovina.

 

B.  Regarding the Constitution of the Federation

 

a.) The challenged provision of Article I.6 (1) of the Constitution of the Federation reads as follows:

 

The official languages of the Federation shall be the Bosnian language and the Croatian language. The official script will be the Latin alphabet.

 

59. The applicant considers the challenged provision a violation of the last paragraph of the Preamble of the Constitution of BiH, which refers to Bosniacs, Croats, and Serbs as constituent peoples, and a violation of the non-discrimination provision of Article II.4 of the Constitution of BiH. The challenged provision hindered the enjoyment of the constitutional rights of all expelled persons to return to their homes of origin and the re-establishment of the national population structure that had been destroyed by the war and ethnic cleansing.

 

60. At the public hearing, the applicant’s representative further outlined that the equality of three peoples would include the full equality of their languages and that all arguments presented against the Serbian language as the official language of the RS would also hold true for the Federation of BiH.

 

61. The representative of the House of Peoples of the Federation Parliament denied the unconstitutionality of the challenged provision in the course of the public hearing. He stressed the competence of the Federation to regulate all affairs that did not fall within the responsibility of the institutions of Bosnia and Herzegovina, such as languages. Moreover, the regulation of an official language would not be discrimination at the same time since the Constitution of the Federation would guarantee fundamental rights and freedoms such as the right to use one's language as could be seen from Article II.2 (d) of this Constitution. He furthermore doubted the intent of the framers of the Constitution to introduce the equal use of the languages of the three constituent peoples when they used this term and pointed out that the text of the Constitution of the Federation was adopted and published in the Official Gazette in the Croatian and the Bosnian language. Meanwhile, however, a new »official text« was published where the two official languages are called Croatian and Bosnian. The use of the term Bosnian, in his opinion, must be seen as an attempt to discriminate even between the two official languages at the level of the Federation so that the good will to introduce also the third language into the Constitution must be doubted.

 

The Constitutional Court finds:

 

62. As the Constitutional Court has already stated above (see paragraph 33), it is not necessary to deal with the applicant’s assertion that the Constitution of BiH requires the full equality of the languages and alphabets of the constituent peoples due to their status. Moreover, it was stressed by the Constitutional Court that Article II.3 (m) taken in conjunction with paragraph 5 of the said provision of the Constitution of BiH also contains a positive obligation to safeguard those rights and freedoms. Although the regulation of languages by the Entities is per se a legitimate aim, though it might encroach upon the individual rights and positive obligations quoted above, the Constitutional Court concluded that it is in the responsibility of the State of Bosnia and Herzegovina to provide for minimum standards for the use of languages through the framework legislation. The criteria for these standards – elaborated in paragraph 34 supra – must thus serve here as a standard for review of the challenged provisions of the Constitution of the Federation.

 

63. When deciding on the constitutionality of the challenged provision, the Court must account for the context of the regulation and therefore interpret paragraph 1 as a systematic connection with paragraphs 2 and 3.

 

The second and third paragraph of Article I.6 of the Constitution of the Federation read as follows:

 

(2) Other languages may be used as means of communication and instruction.

 

(3) Additional languages may be designated as official by a majority vote of each House of the Legislature, including in the House of Peoples a majority of the Bosniac Delegates and a majority of the Croat Delegates.

 

Paragraph 2 clearly demonstrates that other languages may be used as a means of communication in private and public and as language of instruction at all levels of the public school system, including universities. This provision grants a constitutionally guaranteed individual right that does not need further legislative specification for application.

 

Paragraph 3 allows for additional languages as official languages, however only by consent of a majority of the Bosniac or a majority of the Croat Delegates in the House of Peoples of the Federation Parliament. A rather small, ethnically defined minority of approximately 8% of the members of the Federation Parliament could thus effectively veto any legislation to introduce, for instance, the Serbian language as an official language. This system of a block veto only for Bosniac and Croat Delegates excludes all others from participation in the legislative process, although it might particularly be in their interest to introduce an additional official language.

 

By excluding all others from effective participation in the legislative process in this field – which is a constitutional requirement following from Article 15 of the Framework Convention of the Protection of National Minorities, that must be applied directly in accordance with Annex I to the Constitution of BiH – the Bosniac and Croat delegates are given a privilege which could never be legitimized under Article 1, paragraph 4 of the Convention on the Elimination of All Forms of Racial Discrimination which has to be applied directly in Bosnia and Herzegovina according to Annex I to the Constitution of BiH. Moreover, paragraph 3 of Article I.6 does not grant a legislative authorization for the official use of other scripts as paragraph 1 stipulates the Latin alphabet to be in official use in addition to the Croatian and Bosnian languages and thereby distinguishing languages and scripts.

 

64. Thus interpreting paragraph 1 in conjunction with paragraph 3 of Article I.6 of the Constitution of the Federation, paragraph 1 must be regarded as a serious obstacle for the enjoyment of the rights guaranteed under Article II.3 (m) and II.5 of the Constitution of BiH and it thereby violates the positive obligations outlined above and Article II.4 of this Constitution.

 

65. The Constitutional Court thus declares Article I.6, paragraph 1 of the Constitution of the Federation unconstitutional.

 

b.) The challenged provision of Article III.1 (a) of the Constitution of the Federation, as modified by Amendment VIII, in those parts which concern the civilian command authority of the Presidency of BiH reads as follows:

 

The Federation shall have exclusive responsibility for:

 

(a) The organization and conduct of the defense of the Federation and protection of its territory, including the establishment of a joint command of all military forces in the Federation, the control of military production, the conclusion of military agreements according to the Constitution of Bosnia and Herzegovina, and the co-operation with the Standing Committee on Military Matters and the Council of Ministers in the defense of Bosnia and Herzegovina,

[...]

 

66. The applicant considers this provision not to be in conformity with Article V.5 of the Constitution of BiH, under which each member of the Presidency of Bosnia and Herzegovina shall have civilian command authority over the armed forces.

 

67. At the public hearing, the applicant’s expert further pointed out that the transfer of competencies in the field of the civil command over the armed forces from the State of Bosnia and Herzegovina to the Entities would endanger the sovereignty and territorial integrity of BiH.

 

68. The expert of the House of Peoples of the Parliament of the Federation of BiH denied at the public hearing the unconstitutionality of the challenged provision. Since Article V.5 (a) of the Constitution of BiH regulates the civilian command, the hierarchy of military command would rest with the Entities and thus regulated by their constitutions and laws. The applicant entirely disregarded the responsibilities of the Entities in this field and made an attempt to homogenize the armed forces. The request aimed at a complete revision of the military organization, the dissolution of the existing military formations and all legal provisions on the hierarchical order of the military segment. The Constitutions and laws of the Federation of BiH and the RS regulated the organization of the armed forces and they were observed when the Dayton Agreement was drafted. It would be totally absurd to think that the Dayton Agreement would have been adopted without respecting the existing allocation of powers, particularly with regard to military matters.

 

The Constitutional Court finds:

 

69. According to the interpretation of Article V.5 (a) of the Constitution of Bosnia and Herzegovina, the Constitutional Court finds in this case that the challenged provision of Article III.1 a) of the Constitution of the Federation of Bosnia and Herzegovina does not contravene the Constitution of Bosnia and Herzegovina.

 

c) After the Constitutional Court has declared some parts of the challenged provisions of Article IV.B.7 a) (I) through (III) and Article IV.B.8 of the Constitution of the Federation unconstitutional so that they remain no longer in force (Official Gazette of Bosnia and Herzegovina, No. 11/00), the challenged provisions in their relevant parts read as follows:

 

Article IV.B.7 a) (relevant parts):

 

Except as specifically provided in this Constitution:

 

(a) The President shall be responsible for:

 

(i)         The appointment of the Government, military personnel and judges of Federation courts, in accordance with Articles IV.B.5, IV.B.8, and IV.C.6;

 

(ii)        Serving as commander-in-chief of the military of the Federation;

 

(iii)       Conducting consultations concerning the appointment of Ombudsmen and Judges in accordance with Article II.B.1 (2) and IV.C.6 b);

[…]

 

Article IV.B.8

 

The President of the Federation, in consensus with the Vice-President shall appoint … officers of armed forces. Appointments shall require the approval of a majority of each House of the Federation Parliament, provided that the approval of appointments for the members of the Joint Command of Military Forces shall require a majority of the Bosniac and of the Croat Delegates in the House of Peoples.

 

 

70. The applicant asserts that the responsibility of the President of the Federation for the appointment of officers to the armed forces is not in conformity with Article V.5 of the Constitution of BiH, which vests the civilian command authority in the members of the Presidency of BiH.

 

71. At the public hearing, the applicant’s representatives further maintained that the arguments presented with regard to Articles 80 and 106 of the Constitution of the RS (supra at paragraph 50) also hold for the Constitution of the Federation of BiH.

 

72. The expert appointed by the House of Peoples of the Parliamentary Assembly of the Federation of Bosnia and Herzegovina pointed out at the public hearing that the applicant interpreted the challenged provisions and relevant provisions of the Constitution of BiH without accounting for the context. He did not deny their responsibilities according to the Constitution of BiH as far as the appointments are concerned, but that they are exclusive since such an interpretation would ignore the Entities’ responsibilities foreseen by the Constitution in this field.

 

The Constitutional Court finds:

 

73. The Court has already decided on the constitutionality of parts of Articles IV.B.7 a) (I) through (III) and IV.B.8 of the Constitution of the Federation which relate to the appointment of the “heads of diplomatic missions” and found that these parts of the aforesaid provisions were unconstitutional (Decision of the Constitutional Court of BiH No. U 5/98 of 29 and 30 January 2000, “Official Gazette of BiH”, No. 11/00, paragraphs 63, 64, 65 and 66).

 

74. With respect to the remainder of the provisions which relate to the civilian command authority of the members of the Presidency of BiH and their conformity with the Constitution of BiH, the Constitutional Court elaborated on what has been stated previously regarding the Constitution of the RS with the following reasons (see para. 55 thru 58 supra).

 

75. The Constitutional Court thus declares the challenged provisions to be in conformity with Constitution of BiH.

 

Members of the Constitutional Court were unanimous in adopting the Decisions relating to Article 4, as modified by Amendment LVI, item 2 of the Constitution of the RS. As regards to Article 7, Article 28, paragraph 4, Article 68 item 16, as modified by Amendment XXXII, Article 80, as modified by Amendment XL, item 1 and Article 106, item 2 of the Constitution of the RS as well as Article I.6 (1), Article III.1 (a), as modified by Amendment VIII, Article IV.B.7 (a) (I) through (III) and Article IV.B.8 of the Constitution of the Federation of BiH, as modified by Amendment III, the Constitutional Court adopted its Decision by 5 votes pro to 4 votes con.

 

76. The Decisions regarding the publication in the Official Gazettes of Bosnia and Herzegovina, the Republika Srpska and the Federation of Bosnia and Herzegovina and regarding the date when the provisions that are declared unconstitutional cease to be in effect are based on Articles 59 and 71 of the Court's Rules of Procedure.

 

The Court ruled in the following composition:

President of the Court: Prof. Dr. Kasim Begić,

Judges: Dr. Hans Danelius, Prof. Dr. Louis Favoreu, Prof. Dr. Joseph Marko, Dr. Zvonko Miljko, Azra Omeragić, Prof. Dr. Vitomir Popović, Prof. Dr. Snežana Savić and Mirko Zovko.

 

Pursuant to Article 36 of the Rules of Procedure of the Constitutional Court of Bosnia and Herzegovina, a concurring opinion was expressed by Judge Hans Danelius, while the following Judges expressed their dissenting opinions: Judges Kasim Begić and Joseph Marko with respect to the provisions of Article 80, paragraph 1, as modified by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of the Republika Srpska, and Article III.1 (a), as modified by Amendment VIII, Article IV.B.7 (a) (I) through (III) and Article IV.B.8 of the Constitution of the Federation of BiH, and Judges Vitomir Popović and Snežana Savić with respect to the provisions of Article 68, item 16, as modified by Amendment XXXII, Article 7, paragraph 1 and Article 28, paragraph 4 of the Constitution of the Republika Srpska, and Article I.6 (1) of the Constitution of the Federation of Bosnia and Herzegovina. The texts of these separate opinions are annexed to this Partial Decision.

 

U 5/98-IV

19 August 2000

Neum

Prof. Dr. Kasim Begić

President

of the Constitutional Court of Bosnia and Herzegovina

 

 

 

 

 

 


 

CONSTITUTION OF THE REPUBLIKA SRPSKA

 

Article 68, item 16

 

Item 16 of Article 68 of the Constitution of the RS, according to which “the RS regulates and ensures co-operation with the Serb people outside of the Republic”, creates a preference that cannot be legitimatised pursuant to Article I paragraph 4 of the Convention on the Elimination of All Forms of Racial Discrimination. It also violates obligations imposed by Article 2 paragraph 1 item (c) of the Convention on the Elimination of All Forms of Racial Discrimination. The same obligation follows from Article 1 paragraph 3 sub-paragraph (a) and Article II paragraph 1 of Annex VII, taken in conjunction with Article II paragraph 2 and Article III paragraph 2 sub-paragraph (c) of the Constitution of BiH.

 

Article 7, paragraph 1

 

A wide range of meaning of “official use” of the Serbian language and Cyrillic alphabet and territorial restriction of official use of other languages under Article 7 of the Constitution of the RS, however, reach far beyond per se legitimate goal of regulation of official language use in so far as these provisions have the effect of prevention of enjoyment of rights under Article II.3 (m) and 5 of the Constitution of BiH. They are also in contravention to Article I.4 of the Constitution of BiH.

 

Regulation of languages by Entities is a legitimate goal per se, but it might pose a violation of  the rights of individuals and positive obligations provided for by the Constitution that serve as an institutional safeguard of “a pluralist society” and “market economy” according to the

Preamble of Constitution of BiH.  There is an implicit and yet necessary responsibility of the State of BiH to ensure minimum standards for language use through a framework legislation, given the clear presence of danger created by use of official language regulations without restrictions in Entities concerning these fundamental normative principles and institutional safeguards of the Constitution of BiH.  In doing so, the legislation of BiH must account for an efficient possibility of equal use of Bosnian, Croatian and Serbian languages, not only in institutions of BiH but also at the level of Entities and their administrative authorities, in legislative, executive and judicial authorities as well as in public. The highest standards of Articles 8 through 13 of the European Charter for Regional or Minority Languages should be used as guidelines for the three languages. Lower standards provided in the European Charter might – taking into account appropriate conditions – be sufficient for other languages only.

 

Article 28, paragraph 4

 

Provision of Article 28 paragraph 4 of the Constitution of the RS gives the Orthodox Church an important influence over creation of a system of values and belief, and it must be considered as a constitutional norm that allows the authorities to “create a public atmosphere that prevents free exercise of religion”.

 

In view of the material support to the Orthodox Church, it acquired a privilege by this provision that cannot be legitimatised in constitutional terms and is therefore of an inherent discriminatory character.

 

 

CONSTITUTION OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

 

Article I.6 (1)

 

Challenged provision presents a serious obstacle to the enjoyment of rights guaranteed under Article II.3 (n) and II.5 of the Constitution of BiH, and it violates positive obligations arising out of the Framework Convention for the Protection of National Minorities, the Convention on the Elimination of All Forms of Racial Discrimination, and Article II.4 of the Constitution of BiH. Accordingly, the Constitutional Court declared this provision unconstitutional, and it reads as follows: “The official languages of the Federation shall be the Bosnian and the Croatian language. The official script will be the Latin alphabet”.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEX

Concurring Opinion of Judge Dr. Hans Danelius

On the Partial Decision of the Constitutional Court of Bosnia and Herzegovina, No. 5/98 of 18 and 19 August 2000

 

 

 

I have voted with the majority on all matters dealt with in this Decision, but my reasons for doing so differ in some respects from those which appear in the Decision. My views are as follows:

 

1. Special parallel relations (Article 4 of the Constitution of the RS)

 

Article 4 of the Constitution of the RS provides that the Republika Srpska may establish special parallel relations with the Federal Republic of Yugoslavia and its member republics. The Article makes it clear that the establishment of such relations shall be effected “according to the Constitution of Bosnia and Herzegovina”. The provision in the Constitution of BiH which is of particular interest in this regard is Article III.2 a), which provides that the Entities shall have the right to establish special parallel relationships with neighbouring states and adds that such relationships must be ”consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina”.

 

It therefore appears that Article 4 of the Constitution of the RS has direct support in Article III.2 a) of the Constitution of BiH, which permits the Entities to establish special relationships with neighbouring states. Moreover, if such relations are to be established between the Republika Srpska and the Federal Republic of Yugoslavia or its member republics, the Constitution of the RS expressly requires that this establishment be done in accordance with the Constitution of BiH, which means, in particular, that the sovereignty and territorial integrity of Bosnia and Herzegovina shall be respected. Consequently, Article 4 of the Constitution of the RS cannot be considered to violate the Constitution of BiH.

 

2. Languages and alphabets (Article 7 of the Constitution of the RS and Article

I.6 (1) of the Constitution of Federation of BiH), relations with the Orthodox Church (Article 28, fourth paragraph, of the Constitution of the RS) and co-operation with the Serb people outside Republika Srpska (Article 68, item 16, of the Constitution of the RS)

 

In its third Partial Decision of 1 July 2000, the Constitutional Court found that Article 1 of the Constitution of the RS, insofar as it referred to the Republika Srpska as a State of the Serb people, and Article 1 of the Constitution of Federation of BiH, insofar as it referred only to Bosniacs and Croats as constituent peoples in the Federation, were unconstitutional. In my own concurring opinion attached to that Decision, I agreed with the conclusion, because I found in these provisions a discriminatory element which was not compatible with the non-discrimination principle in the Constitution of BiH. In my opinion, these introductory Articles in the two Constitutions could well be read as meaning that the Serbs in Republika Srpska and the Bosniacs and Croats in the Federation have a privileged constitutional status and that persons of a different ethnic origin are not in an equal position as citizens of the Entities. I also considered that, by not ensuring the equality of all citizens in an unambiguous manner, the Constitutions could make it unattractive for refugees and displaced persons to return to their previous homes, which would be inconsistent with an important objective of the Constitution of BiH, expressed in particular in Article II.5 of that Constitution.

 

I consider that these objections, which were formulated in regard to Article 1 of each of the Entity Constitutions, are also valid in relation to some other provisions of these Constitutions, which give, or can reasonably be interpreted as giving, one people or two peoples, as the case may be, a favoured position in comparison with other groups of citizens.

 

(a) Article 7 of the Constitution of the RS provides that the Serbian language and the Cyrillic alphabet shall be in official use in the Republika Srpska, while the Latin alphabet shall be used as specified by the law. It is added in the second paragraph that in certain regions there may be special rules about languages and alphabets.

 

Article 7 must be considered to give the Serb population a special constitutional protection of their language and script. The protection extends to the whole territory of Republika Srpska and does not depend on the population structure in each community or region. For reasons similar to those formulated in regard to Article 1 of the Constitution of the RS, I therefore find that Article 7 places the Serb inhabitants of the Republika Srpska in a favoured position and therefore discriminates against other citizens.

 

The same reasoning applies, mutatis mutandis, to Article I.6 (1) of the Constitution of Federation of BiH, which provides that the official languages of the Federation shall be the Bosniac and Croatian languages and that the official script in the Federation shall be the Latin alphabet. It is added in Article I.6 (2) that other languages may be used as means of communication and instruction and in Article I.6 (3) that additional languages may be designated as official by decisions of the Federation Legislature.

 

It follows from these provisions that the Bosniac and Croatian languages are official languages in the whole territory of the Federation, whereas other languages can only obtain such status after a decision by the Legislature. This is likely to create among citizens who are neither Bosniacs nor Croats the impression that they are not accepted as equal to the Bosniacs and Croats, which may affect their willingness to reside in, or return to, their homes in the territory of the Federation. A discriminatory element is therefore present in Article I.6 of the Constitution of Federation of BiH as well.

 

(b) According to Article 28, fourth paragraph, of the Constitution of the RS, the State shall materially support the Orthodox Church and co-operate with it in all fields and, in particular, in preserving, cherishing and developing cultural, traditional and other spiritual values. Although special links between state and church are not unknown in other European countries and must not necessarily be seen as discriminatory, such links become particularly sensitive in a multi-ethnic society where the church of one ethnic group is given governmental support. Such is the situation in Republika Srpska where the Orthodox Church is mainly the church of the Serb population and where the constitutional obligation to support and co-operate with that church may therefore be seen by others as an expression of the privileged position of the Serbs within Republika Srpska. There is thus a discriminatory aspect of Article 28, fourth paragraph, of the Constitution of the RS, which cannot be considered to have been entirely removed by the general provision in the second paragraph of the same Article, according to which all religious communities shall be equal before the law and enjoy freedom to perform religious affairs and services.

 

(c) Article 68, item 16 of the Constitution of the RS provides that Republika Srpska shall regulate and ensure co-operation with the Serb people outside the Republic. Such a constitutional obligation of co-operation with other Serbs reinforces the impression created by other parts of the Constitution of the RS that Republika Srpska is primarily a territory of the Serbs and that their interests enjoy special protection in the Constitution of the RS.

 

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It follows from these considerations that the constitutional provisions regarding (a) language and alphabet in both Entities, (b) the obligation of the Republika Srpska to support and co-operate with the Orthodox Church and (c) the obligation of the Republika Srpska to co-operate with Serbs outside the Republika Srpska must be considered to grant privileges to some citizens on ethnic grounds and to place inhabitants or former inhabitants who do not belong to the privileged group or groups in a less favoured position. Such discriminatory elements are particularly serious in territories where – as is the case in both Entities – large numbers of people have been forced to leave their homes on ethnic grounds and discrimination on such grounds has been, and remains, a frequent occurrence. An important aim according to the Constitution of BiH, which is reflected in Article II.5 of that Constitution, is the return of refugees and displaced persons to their homes. The realisation of that aim may be thwarted or rendered more problematic, if those who may envisage returning feel that they are not even in the Constitution treated as equal to the predominant ethnic group or groups.

 

For these reasons I conclude that the said provisions of the Entities’ Constitutions violate the Constitution of BiH, since they are inconsistent with the prohibition against discrimination laid down in Article II.4 of the Constitution of BiH. 

 

3. The armed forces (Article 80, para. 1, as modified by Amendment XL, item 1, and Article 106, para. 2 of the Constitution of the RS, and Article III.1 a), as modified by Amendment VIII, Article IV.B.7 a) and Article IV.B.8 of the Constitution of Federation of BiH)

 

The provisions in the Constitution of BiH which deal with the armed forces do not give clear information on how the competence in military matters is to be divided between the State and the Entities. However, it is possible to conclude from the text of Article V.5 of the Constitution of BiH that each Entity shall have its own armed forces but that the Entities shall not have exclusive and unlimited authority over these forces. The limitations of the authority of the Entities resulting from Article V.5 are twofold. First, each member of the Presidency shall have civilian command authority over the armed forces. Secondly, there shall be a Standing Committee on Military Matters whose task shall be to co-ordinate the activities of all the armed forces in Bosnia and Herzegovina. A joint top organisation at the State level has thus been created for the armed forces of the Entities, an important purpose being to ensure that in times of crisis neither of the Entities should be permitted to act independently in a manner which could involve a danger to the other Entity or to a neighbouring country. The desire to prevent the armed forces of the Entities from being used against each other is also reflected in the further obligations laid down in Article V.5, i.e. that neither Entity shall threaten or use force against the other Entity, that the armed forces of one Entity shall under no circumstances enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina, and that all the armed forces in Bosnia and Herzegovina shall operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina.

 

The question is now whether the contested provisions in Articles 80 and 106 of the Constitution of the RS and in Articles III.1 a), IV.B.7 a) and IV.B.8 of the Constitution of Federation of BiH are in conformity with Article V.5 of the Constitution of BiH.

 

Regarding the Constitution of the RS, Article 80, para. 1 authorises the President of the Republika Srpska to exercise tasks related to defence and security. The text makes no reservation or exception for the responsibilities of the members of the Presidency and the Standing Committee on Military Matters under the Constitution of BiH. On the other hand, the wording of Article 80 is of a general character and does not exclude that some functions relating to defence and security fall outside the competence of the President of the Republika Srpska.

 

Article 106, para. 2 of the Constitution of the RS provides that the President of the Republika Srpska shall appoint, promote and recall officers of the army of the Republika Srpska and have similar functions with respect to judges of the military courts and army prosecutors. If this competence was considered to be general and without exception, it would not be consistent with the Constitution of BiH, since there are situations where the members of the Presidency of BiH, in the exercise of their civilian command authority, are entitled to take decisions on matters regarding the personnel of the armed forces of the Entities. However, although the wording of Article 106 contains no explicit reservation or exception to uphold the prerogatives of the members of the Presidency of BiH and the Standing Committee on Military Matters under the Constitution of BiH, the Article can be interpreted as only regulating where the competence lies within the institutional structure of the Republika Srpska and as not dealing with situations where decisions have to be taken by a BiH institution.

 

It follows that the two provisions in Articles 80 and 106 of the Constitution of the RS can be considered not to violate the Constitution of BiH. However, they are in conformity with the Constitution of BiH only if the civilian command authority of the members of the Presidency of BiH and the co-ordinating functions of the Standing Committee on Military Matters provided for in Article V.5 of the Constitution of BiH are upheld and respected. I therefore consider that Articles 80 and 106 of the Constitution of the RS do not violate the Constitution of BiH, provided that the two Articles are read as in no way interfering with the prerogatives of the members of the Presidency and the Standing Committee on Military Matters and as conferring authority and competence only insofar as under the constitutional system of Bosnia and Herzegovina military matters may be dealt with at the Entity level.     

 

Regarding the Constitution of Federation of BiH, Article III.1 a) deals with the competence of the Federation in matters of defence. No specific reference to the Constitution of BiH is made in that Article, and the fact that, according to the text of the Article, the Federation shall have ”exclusive responsibility” for the organisation and conduct of the defence of the Federation could create some doubt as to its conformity with Article V.5 of the Constitution of BiH. However, Article III.1 a) must be read as a whole and in another part of the text there are references to military functions performed at State level. In fact, the Article refers to the conclusion of military agreements “according to the Constitution of Bosnia and Herzegovina” and makes the Federation responsible for ”the co-operation with the Standing Committee on Military Matters and the Council of Ministers in the defence of Bosnia and Herzegovina”. I find these references sufficient to show that the supreme authority of the joint institutions in matters of defence according to the Constitution of BiH can be considered to be recognised in the Constitution of Federation of BiH.      

 

Regarding the responsibility of the President of the Federation for the appointment of officers of the armed forces and other military personnel according to Articles IV.B.7 a) and IV.B.8 of the Constitution of Federation of BiH, it is true that the text of these provisions does not refer to the competence of the members of the Presidency of BiH to take decisions, in the exercise of their civilian command authority, on matters relating to the personnel of the armed forces. However, in the same way as with regard to the corresponding provision in the Constitution of the RS, I find it possible to read these provisions in the Constitution of Federation of BiH as only regulating the competence at Entity level and as being, on this basis, in conformity with the Constitution of BiH.

 

In Article IV.B.7 a) of the Constitution of Federation of BiH, there is also a provision, according to which the President of the Federation shall serve as commander-in-chief of the military of the Federation. This provision cannot be considered to be incompatible with the Constitution of BiH, provided that the civilian command authority of the members of the Presidency of BiH with respect to the armed forces of the Federation is respected.

 

In summary, I consider that the provisions of the two Entities’ Constitutions regarding military matters can be read as referring to the internal situation within each Entity, in which case the competence of the members of the Presidency of BiH and the Standing Committee on Military Matters is not affected by these provisions. Basing myself on such an interpretation, I find that the said provisions are not unconstitutional. However, it is important that this reading of the two Entities’ Constitutions is accepted and that the prerogatives of the institutions of BiH according to Article V.5 of the Constitution of BiH are fully recognised and respected.

 

Dr. Hans Danelius

Judge

of the Constitutional Court of Bosnia and Herzegovina

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex

Separate opinion of Prof. Dr Kasim Begić
in the Fourth Partial Decision in the case U 5/98

With regard to Article 80, paragraph 1 of the Constitution of the Republika Srpska, as modified by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of the Republika Srpska, and Article III.1 (a) of the Constitution of the Federation of Bosnia and Herzegovina, as modified by Amendment VIII.

 

With respect to the majority opinion of the Court on these challenged provisions, not only do I consider that there are several arguments for which these provisions should have been declared unconstitutional, but also that this Decision has not followed the doctrine of the Court established in the first Three Partial Decisions in the case U 5/98.

 

1. According to Article V.5 of the Constitution of Bosnia and Herzegovina, three facts are beyond contestation: a) each member of the Presidency has civilian command authority over the armed forces; b) there are armed forces of the Entities; c) the armed forces operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina. The evaluation of the conformity of the respective provisions of the Entities’ Constitutions with the Constitution of Bosnia and Herzegovina must be carried out from the perspective of whether they include a clear integrated chain of command with the civilian command authority of the members of the Presidency of Bosnia and Herzegovina at the top, and whether these provisions ensure the functioning of the armed forces in accordance with the sovereignty and territorial integrity of Bosnia and Herzegovina.

 

2. It clearly appears from Article V.5 of the Constitution of Bosnia and Herzegovina that the Entities have powers to maintain the armed forces, but this provision also defines the limits of this maintenance, including the fact that the extent of the “self-organizing of the Entities” is generally established by the Constitution of Bosnia and Herzegovina (Third Partial Decision 5/98, Official Gazette of Bosnia and Herzegovina No. 23/00). This limitation means that this sphere represents a joint competence of Bosnia and Herzegovina and its Entities, and it is therefore necessary for the functioning of these constitutional provisions that the Parliamentary Assembly, starting from the supremacy of the Constitution of Bosnia and Herzegovina over acts or decisions of any authority, legislates norms on the extent of the powers of the Entities in maintaining the armed forces vis-à-vis the civilian command authority, including the specification of powers which the latter comprises in view of the principle of a democratic State and the understanding, inter alia, that the armed forces act under civilian command. In this context, the reference in the majority opinion to Article III.1, referring to the lack of mention of joint armed forces, is entirely irrelevant in view of the other constitutional provisions and constitutional principles. Likewise, there are no grounds in this Decision for reducing the civilian command authority, and generally activating the members of the Presidency and the Standing Committee, for “coordination” and in the case of a “threat to the sovereignty and territorial integrity of Bosnia and Herzegovina”.

 

3. The notion of civilian command comprises several aspects of command – the question of when and how the armed forces are used, the power of control of the organization of armed forces and appointment of officers, and ensuring a hierarchical integrated command. Therefore, the civilian command authority in the function of joint command (and joint defence policy and doctrine) is not inconsistent with the existence of Entity armed forces and with certain powers, in defined frameworks, of the Entities in this sphere. In this respect, it is possible that the civilian command authority fulfils this twofold task, i.e. to be the manifestation of the principle of a democratic State and to be in the function of the preservation of the sovereignty and territorial integrity of Bosnia and Herzegovina. In this context, it should be mentioned that neither Entity Constitution uses the term “civilian command”, either within the original text or in a reference to the Constitution of Bosnia and Herzegovina.

 

4. The unconstitutionality of the aforementioned provisions of the Entities’ Constitutions is further substantiated with a historical interpretation. Namely, in the challenged provisions of the Constitution of the Republika Srpska and other provisions there is no reference to the Constitution of Bosnia and Herzegovina in this sphere, or to the civilian command authority of the members of the Presidency, or even to the Standing Committee. It undoubtedly follows from this fact that the challenged provisions date back from the time when this Entity was being designed as a State in full capacity, and that the fact that meanwhile the Constitution of Bosnia and Herzegovina has been adopted is, from the point of view of this Constitution, actually irrelevant.

 

As for the Constitution of the Federation of Bosnia and Herzegovina, it accepts in Amendment VIII, the Constitution of Bosnia and Herzegovina and cooperation with the Standing Committee and the Council of Ministers in this sphere, but it should be noted that this provision commences with the words that this sphere is “in the exclusive competence of the Federation…”, which is in direct conflict with the position of the Court in the Third Partial Decision in the case U 5/98, that there is no legislative power which is not provided by the Constitution of Bosnia and Herzegovina and that the extent of joint engagement of the Entity and State structures are reduced to “cooperation”.

 

 

Prof. Dr. Kasim Begić

President

of the Constitutional Court of Bosnia and Herzegovina

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex

Dissenting opinion of Prof. Dr. Joseph Marko in the Partial Decision in the case U 5/98

of 18 and 19 August 2000

With regard to Article 80, paragraph 1, as modified by Amendment XL, item 1, Article 106, paragraph 2 of the Constitution of RS, and Article III.1 a), as modified by Amendment VIII, Article IV.B.7a) (I) through (III) and Article IV.B.8 of the Constitution of Federation of BiH

 

 

To my regret, I am unable to share the opinion of the majority of the Court, since it appears to me that neither the civilian command authority of the members of the Presidency of BiH according to Article V/5 (a) of the Constitution of BiH has been appropriately interpreted, nor is it possible to interpret the challenged provisions of the Entity Constitutions in conformity with the Constitution of Bosnia and Herzegovina.

 

While it is true that the respective provisions of the Constitution of BiH do not contain any legal definition of the notion of civilian command authority and, what is rather strange, insofar as each member of the Presidency shall have civilian command authority over the armed forces, these uncertainties and inconsistencies may not be dissolved by making reference to the speculative “nature” of these armed forces or whether the Presidency of BiH is a collegial organ or not. It must not be forgotten that the question addressed in the request was whether the competence of an Entity or its President to appoint military staff is in accordance with the civilian command authority of the Presidency of Bosnia and Herzegovina. Hence, the problem posed by the request was not the question of civilian command over the armed forces as such, but the question of “civilian” command.

 

Accordingly, it is the technique of legal control rather than the nature of the armed forces that requires interpretation of the character of “civilian” command in terms of substance. It is therefore necessary to introduce a firm constitutional principle that would be based on the text of the Constitution of Bosnia and Herzegovina, so that valid legal grounds are established for the constitutional concept of civilian command.

 

It follows from the principles of a democratic state, as laid down in Article I.2 of the Constitution of BiH, that all the armed forces must operate under civilian authority, i.e. subject to their management and political control. This fundamental principle is further specified through Article V.5 of the Constitution of BiH insofar as such civilian command authority over all the armed forces in Bosnia and Herzegovina, i.e. command authority of the armed forces of both the Federation of BiH and the Republika Srpska, is vested in each member of the Presidency. Moreover, the Standing Committee on Military Matters, selected by the members of the Presidency, must coordinate the activities of these armed forces. It is thus clear from these provisions of the Constitution with regard to the efficiency of the function of civilian control over the armed forces that there must be a clearly integrated hierarchy and chain of command with the civilian command authority of the members of the Presidency on top.

 

Furthermore, civilian command authority includes several aspects of command authority that must be distinguished. First of all, a question arises as to when and how to use the armed forces as such. A supreme command authority in this sense must remain entirely in the hands of the members of the Presidency since any other regulation would present a clear and present danger to the sovereignty and territorial integrity of BiH, which is, according to Article V/5 (a), an absolute constitutional obligation. The majority of the Judges were of the opinion that the decision on the employment of the armed forces should be taken by a member of the Presidency, with the consent of the authorities of one Entity, presents such an obvious and imminent danger to the sovereignty and territorial integrity of Bosnia and Herzegovina that it cannot be considered in conformity with specific constitutional assumptions.   

 

Secondly, civil command authority as a democratic control of the armed forces must also include a supervisory power with regard to the organization of the armed forces. Hence, the appointment, promotion, demotion, suspension or removal of all military personnel in the armed forces must remain under the ultimate control of the members of the Presidency. How this control should be organized remains to the framework-legislation of the State of Bosnia and Herzegovina and the residual powers of the Entities in this field. However, as a last resort, the possibility to veto the appointment or removal of any personnel of the armed forces must remain in the hands of the members of the Presidency.

 

Thirdly, the Standing Committee on Military Matters according to Article V. 5 of the Constitution of BiH serves as some sort of “supreme command”. This meaning may be derived from the composition and selection procedures of this body – insofar as the members of the Presidency are ex constitutione also members of that body and select the other members – as well as from its power to coordinate the activities of the armed forces of the Entities. These constitutional provisions obviously have the function of providing for an integrated chain of command from top and down the ranks of the military, which is necessary to preserve the sovereignty and territorial integrity of BiH. Unlike the majority opinion, I cannot see any constitutional or legal reason to assert that this Committee is not an institution of Bosnia and Herzegovina. Quite the opposite! Given the context of Article V of the Constitution of Bosnia and Herzegovina, whose paragraphs 1 through 3 relate to the Presidency of Bosnia and Herzegovina, paragraph 4 to the Council of Ministers and paragraph 5 to the Standing Committee, it evidently follows that this is an institution of Bosnia and Herzegovina as equally as the Presidency or the Council of Ministers.     

 

Being the most important instrument of democratic control, civilian command power under Article V. 5 of the Constitution of BiH is ultimately supreme and overrules any act or decision taken by an Entity organ that is in conflict with the Constitution, pursuant to Article III. 3 (b) of the Constitution of BiH. Since every member of the Presidency is vested with civilian command authority over all the armed forces, it is thus necessary that they act jointly when exercising this power without, however, having the possibility to block each other.

 

Finally, due to the principle of separation of powers inherent in the Constitution of BiH, it must rest with the Parliamentary Assembly of BiH to specify the constitutional principles outlined above through its power of adopting necessary framework legislation in this field and thus also to provide for respective procedures of joint actions of the Presidency, which has already been decided by the Court in the second Partial Decision in this case (“Official Gazette of Bosnia and Herzegovina”, No. 17/00).

 

As already indicated above, it is my opinion that the challenged provisions of the Entities’ Constitutions cannot be interpreted in conformity with the Constitution of BiH.

 

According to Article V. 5 of the Constitution of BiH, the Entities do have the authority to maintain the armed forces, but only within the limits set forth by the Constitution. This limitation means that this right can only be seen within this context, that the Entities do not act as states and if provisions on the civilian command authority over the armed forces do not pose a threat to the sovereignty and territorial integrity of Bosnia and Herzegovina. Consequently, the interpretation of the texts of the Entity Constitutions cannot be reduced to the regulation of the internal composition of Entity military issues. In addition to the legislative interpretation of the provisions and legal provisions that define the disputed constitutional provisions, for which both the challenged provisions and the entire legal framework must be particularly accounted.

 

The challenged provision of Article 80, paragraph 1 of the Constitution of RS, as supplemented by Amendment XL, item 1 is worded in a very general manner insofar as it refers to “tasks related to defence and security”. The Law on Defence of the Republika Srpska (“Official Gazette of RS”, No. 21/96) then moves to defines these tasks. The responsibilities of institutions of the Republika Srpska include, inter alia, that the People’s Assembly of the Republika Srpska may proclaim the state of war (Article 5 of the Law on Defence), that the President of the Republika Srpska or the Government may take a decision on the mobilisation of the Army in case of war threat (Articles 6 and 8 of the Law on Defence). These competencies of the institutions of the Republika Srpska clearly interfere with the “mobilisation competence” which lies at the very heart of the civilian command authority of the Presidency of Bosnia and Herzegovina. In light of this legislation, Article 80, paragraph 1 of the Constitution of RS is too broadly construed so that there is no possibility to interpret this provision in conformity with the constitutional principles of the civilian command authority provided by the Constitution of BiH. This would imply that the provisions of Article 80, paragraph 1, as supplemented by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of RS must be regarded in the light of legislative history of the entire Constitution of RS. While Article 106, paragraph 2 is still the original text when the Constitution of RS was adopted in 1992, Amendment XL to Article 80 was adopted in 1994 (“Official Gazette of RS”, No. 28/94). Hence, the text of these provisions was adopted in a spirit when the RS did consider itself as an independent state. However, taking into consideration the legal provisions that have been adopted following the entry into force of the Dayton Peace Agreement (!) and the legislative interpretation of provisions, they can not be viewed any longer simply as an internal affair of the Entities. As there is a constitutional obligation under Article XII, paragraph 2 of the Constitution of BiH, it is obvious that the RS did not make an attempt to bring these constitutional provisions of the Constitution of RS, obviously intended for the institutional framework of an independent state, into conformity with the constitutional requirements that follow from the Constitution of Bosnia and Herzegovina.

 

In light of the aforementioned, Article 80, paragraph 1, as supplemented by Amendment XL, item 1 and Article 106, paragraph 2 of the Constitution of RS are, on the one hand, too broad, and on the other hand, too narrowly constructed, so I do not see a possibility of interpreting these provisions in conformity with the civilian command authority according to Article V.5 (a) of the Constitution of BiH.

 

The same holds, more or less, for the challenged provisions of the Constitution of Federation of BiH.

 

Article III. 1 (a) of the Constitution of Federation of BiH, as modified by Amendment VIII, which concerns defence of the Federation, the establishment of a joint command over all military forces in the Federation and the control of military production is worded in a manner which does not take the civil command authority of the members of the BiH Presidency appropriately into account.  Reference to the Constitution of BiH is too specific with regard to the conclusion of military agreements. Additionally, the regulation of co-operation with the Standing Committee on Military Matters is not exclusive responsibility of the Federation of BiH but as follows from Article V. 5 (a) of the Constitution of BiH, in the power of the State to regulate the basic principles through framework legislation which will then be further specified by Entity legislation.

 

The challenged provisions concerning the appointment of military personnel and officers of the armed forces of the Federation as well as the determination of the President of the Federation to serve as commander-in-chief of the armed forces of the Federation must be examined thus in light of aforesaid.

 

As seen from the wording of Amendment XXIII to the Constitution of the Federation of BiH, the appointment of military officers was already implied as an element of the civilian command authority and this power was then vested in the President of the Presidency of the Republic of BiH and the President or Vice-President of the Federation for a limited time-period until the establishment of the BiH Presidency. However, this transitional period has expired so that this provision of Amendment XXIII can no longer be understood as a reservation to bring the Constitution of Federation of BiH in line with the Constitution of BiH. Even if Amendment XXIII was interpreted in a way that after the expiration of the “transitional period” the power to appoint officers has been transferred to the members of the BiH Presidency, the challenged provision would nevertheless be contradictory in so far as it would relate to the responsibility of the President of the Federation to appoint officers to armed forces without any limitation and would therefore disregard the power of civilian command authority of members of the members of the BiH Presidency. Accordingly, Article III. 1 (a), Article IV.B.7 (a) (I) and Article IV.B.8 of the Constitution of the Federation of BiH cannot therefore be interpreted in a manner consistent with the Constitution of BiH.

 

As far as the position of the President of the Federation to serve as commander-in-chief of the military of the Federation in accordance with Article IV. B. 7 (a) (ii) is concerned, there is again no reference to the ultimate control under the civilian command authority of the members of the BiH Presidency. This is even more important since the decision when and how to employ the armed forces, i.e. the mobilisation competence, rests exclusively with the members of the BiH Presidency. Although Article 22 of the Law on Defence of the BiH Federation (“Official Gazette of the Federation of BiH”, No. 15/1996) contains a similar provision as Amendment XXIII of the Constitution of Federation of BiH in this respect, the same arguments as outlined supra hold true for the said Article 22. The challenged constitutional provision can thus not be read in conformity with the Constitution of BiH. Besides, in relation to Article IV.B.8 of the Constitution of the Federation of BiH, the last sentence thereof constitutes a suspending veto that is not in conformity with the Decision on unconstitutionality of Article I.1 (1) of the Constitution of the Federation of Bosnia and Herzegovina from the third Partial Decision in this case (“Official Gazette of BiH”, No. 23/00).   

 

With due respect to the arguments of the majority opinions, I find the challenged provisions of the Entities’ Constitutions in violation of the requirements that follow from the Constitution of BiH.

 

 

 

 

                         Prof. Dr. Joseph Marko

                                                                           Judge

of the Constitutional Court of Bosnia and Herzegovina

 

 

 

 

 

A N N E X

Separate opinion of Prof. Dr. Snežana Savić and Prof. Dr. Vitomir Popović with regard to the Fourth Partial Decision of the Constitutional Court of Bosnia and Herzegovina in the Case No. U 5/98 of 18 and 19 August 2000

 

 

The Fourth Partial Decision in the Case No. U 5/98 was adopted at the session of the Constitutional Court of Bosnia and Herzegovina held on 18 and 19 August 2000. In accordance with Article 36 of the Rules of Procedure of the Constitutional Court – Amended Text (Official Gazette of Bosnia and Herzegovina, No. 24/99), we chose to deliver a separate opinion with regard to the following items:

 

As to the Constitution of the Republika Srpska:

a) Article 68, item 16 (as replaced by Amendment XXXII);

Article 7, paragraph 1 and

Article 28, paragraph 4

 

As to the Constitution of the Federation of Bosnia and Herzegovina:

a) Article I.6. (1)

 

A) Admissibility 

 

As to the admissibility of the request in its entirety, we support the same reasons that were provided in the Separate Opinion to the Third Partial Decision of the Court in this case.

 

B) Merits of the case

 

As to the review of the constitutionality of Article 68, item 16 (as replaced by Amendment XXXII), Article 7, paragraph 1 and Article 28, paragraph 4 of the Constitution of the Republika Srpska, we consider the request not to be in accordance with the Constitution of Bosnia and Herzegovina and find that it should have been dismissed as being ill-founded in accordance with the Constitution of Bosnia and Herzegovina and the Rules of Procedure of the Constitutional Court.

 

As to the review of the constitutionality of Article I.6. (1) of the Constitution of the Federation of Bosnia and Herzegovina, we consider the request not to be in accordance with the Constitution of Bosnia and Herzegovina and find that it should have been dismissed as ill-founded in accordance with the Constitution and Rules of Procedure of the Constitutional Court.

 

* * * *

 

1. As to the review of the constitutionality of Article 68, item 16 of the Constitution of the Republika Srpska (as replaced by Amendment XXXII), we consider the request not to be in accordance with the Constitution of Bosnia and Herzegovina, since it is not the question of the establishment of special parallel relationships which are exclusively provided for in the Constitution of Bosnia and Herzegovina, but of cooperation with the Serb people outside the Republika Srpska, wherever those people are. This cooperation could be realized in different forms that do not exclusively include agreements on special parallel relations. None of the provisions of the Constitution of Bosnia and Herzegovina exclusively prohibit this co-operation, nor do they normatively regulate it. In this sense, the aforesaid provision of the Constitution of the Republika Srpska includes all forms of cooperation that do not infringe the sovereignty and territorial integrity of Bosnia and Herzegovina, its competencies provided for in Article III/1 of the Constitution of Bosnia and Herzegovina or the human rights and fundamental freedoms guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. As this case does not pertain to the question of cooperation between states or to any other form of institutionalised cooperation at the state level but to cooperation with the Serb people outside the Republika Srpska, as expressly formulated by the challenged provision of the Constitution of the Republika Srpska, it may be concluded that the very formulation of that provision of the Constitution of the Republika Srpska excludes such an intention.

 

Moreover, the interpretation itself of the aforesaid provisions of the Constitution of the Republika Srpska leads to the conclusion according to which the aforesaid provision does not include only the Serb people in the Federal Republic of Yugoslavia but also the Serb people outside the Republika Srpska, which is surely a broader meaning. The aforesaid provision of the Constitution of the Republika Srpska offers the possibility for such cooperation (that cooperation is regulated and guaranteed), while the manner of its realization is not regulated. Should the aforesaid manner, which is to be found by acts of lesser legal force (such as laws), be inconsistent with the Constitution of Bosnia and Herzegovina, the unconstitutionality of such an act could be declared. This is not the case with Article 68, item 16 of the Constitution of Republika since it does not endanger the Constitution of Bosnia and Herzegovina. Taking into consideration that the aforesaid provision does not exclude either cooperation with other peoples outside the Republika Srpska or cooperation of other citizens of the Republika Srpska with their compatriots outside the Republika Srpska, the aforesaid provision of the Constitution of the Republika Srpska does not have a discriminatory character.

 

The majority opinion in this Decision correctly concludes: “Despite the fact that this provision can be interpreted in a manner consistent with the Constitution of Bosnia and Herzegovina so as not to exclude cooperation of other peoples with their compatriots outside the Republika Srpska, or to oblige other peoples to co-operate with the Serb people outside the Republika Srpska”. However, it incorrectly concludes that these “rules might have an effect of creating a direct preference for the Serb people of the Republika Srpska”. Since the Serb people are the constituent (and majority) people in the Republika Srpska, it is logical that cooperation with the Serb people outside the Republika Srpska is supposed to be regulated by the Constitution. It does not mean that such cooperation violates the human rights and freedoms of other citizens of the Republika Srpska.

 

Moreover, in order to interpret the aforesaid provision of the Constitution of the Republika Srpska, it is necessary to consider the institution of special parallel relationships as provided for in the Constitution of Bosnia and Herzegovina. Special parallel relations of the Republika Srpska with the Federal Republic of Yugoslavia are essentially more powerful than cooperation with the Serb people outside the Republika Srpska. Firstly, this is a type of institutionalised cooperation; secondly, cooperation with the Federal Republic of Yugoslavia and its Member Republics is specified and thirdly, that establishment can include all competencies provided for in Article III of the Constitution of Bosnia and Herzegovina, i.e. all those competencies which do not fall within the competencies of Bosnia and Herzegovina and which, according to the Constitution of Bosnia and Herzegovina, do not endanger its sovereignty or territorial integrity. Similarly, it can be concluded: “If the Constitution of Bosnia and Herzegovina provides for the Republika Srpska the conclusion of an agreement on special parallel relationships, while the Constitution of the Republika Srpska concretises it (with the Federal Republic of Yugoslavia and its Member Republics), which is found to be consistent with the Constitution of Bosnia and Herzegovina, it is logical that cooperation with the Serb people outside the Republika Srpska, which is regulated and provided for in Article 68, item 16 of the Constitution of the Republika Srpska, must lead to such a logical conclusion. Therefore, if the provision of the Constitution of the Republika Srpska that regulates special parallel relations with the Federal Republic of Yugoslavia and its Member Republics (which includes a large scope of rights) is not discriminatory, then the same conclusion must be drawn as to this provision of the Constitution of the Republika Srpska.

 

Therefore, the majority opinion cannot conclude that item 16 of Article 68 of the Constitution of the Republika Srpska cannot be legitimatised by Article 1, paragraph 4 of the Convention on the Elimination of All Forms of Racial Discrimination nor can it conclude that it violates the obligation provided for in Article 2, paragraph 2, item c) thereof, Article 3, paragraph 3 item a) or Article II, paragraph 2 of Annex 7, taken in conjunction with Article III/2. c) of the Constitution of Bosnia and Herzegovina.

 

2. The applicant asserted that the provision of Article 7 of the Constitution of the Republika Srpska, according to which the Serbian language and the Cyrillic alphabet shall be in official use in the Republika Srpska, was not in conformity with Articles I/2, III/3 and II/4 of the Constitution of Bosnia and Herzegovina. He also asserted that Article I/6.(1) of the Constitution of the Federation of Bosnia and Herzegovina, according to which the Bosnian and Croatian languages shall be in official use, was not in conformity with the Constitution of Bosnia and Herzegovina.

 

The provision of Article 7 of the Constitution of the Republika Srpska does not constitute discrimination on the basis of national origin since the Serb people, according to the Constitution of Bosnia and Herzegovina and its complex state structure, (reasons elaborated in the Separate Opinion to the Third Partial Decision in this case) are the constituent people of the Republika Srpska, while the other constituent peoples in Bosnia and Herzegovina (Croats and Bosniacs) are constituent in the Federation of Bosnia and Herzegovina, have that right established in the Federation of Bosnia and Herzegovina and conjointly with Serbs at the level of Bosnia and Herzegovina. The rights and freedoms of other citizens (and minorities), the right to differences in particular, are guaranteed in the Republika Srpska, Federation of Bosnia and Herzegovina, in the Entities but also in Bosnia and Herzegovina. Articles 7, 10, 21 and 28 of the Constitution of the Republika Srpska must be mentioned as proof of the aforesaid assertions, particularly if we take into consideration the fact that it is the question of a positive norm and not a ban, which cannot violate the rights and freedoms of the citizens.

 

The same applies to the provision of Article I/6.(1) of the Constitution of the Federation of Bosnia and Herzegovina.      

 

Furthermore, it is necessary to distinguish in this case the language and the alphabet in official use from the ban on discrimination on linguistic grounds. The Constitution of Bosnia and Herzegovina does not make any provision for the languages in official use due to the complex State structure of Bosnia and Herzegovina and because of the manner of its creation. It falls therefore within the competence of the Entities. By analogy, the Entities’ Constitutions contain provisions in this respect. Taking into consideration that the constituent people in the Republika Srpska are the Serb people and that of all its citizens have guaranteed human rights and freedoms, this Article observes the aforesaid principle. It is the same for Croat and Bosniac peoples as far as the Federation of Bosnia and Herzegovina is concerned and this may be attested by Article 10 of the Constitution of the Republika Srpska, which provides: “Citizens of the Republika Srpska shall be equal in their freedoms, rights and duties; they shall be equal before the law and they shall enjoy equal legal protection irrespective of their race, sex, language, national origin, religion, social origin, birth, education, property status, political and other beliefs, social status and other personal attributes”.

 

With regard to the part of the request that relates to the protection of the Human Rights and Freedoms under Article 14 of the European Convention for the Protection of Human Right and Fundamental Freedoms, I hold that it relates to the protection of the rights of individuals and not groups. Such rights, among which is the right to language and alphabet, are protected and provided for in those provisions of the Constitution of the Republika Srpska and the Constitution of the Federation of Bosnia and Herzegovina which relate to the protection of rights and freedoms.

 

3. As to Article 28, paragraph 4 of the Constitution of the Republika Srpska, I hold that the aforesaid provision of the Constitution of the Republika Srpska is not inconsistent with the provisions of the Constitution of Bosnia and Herzegovina, particularly not if we take into consideration the provisions of the first and second paragraphs of the same Article. Such a status of churches in states is not (generally) a “specific feature” of the Republika Srpska but it appears in some other countries as well. In favour of the aforesaid assertions, the fact could be pointed out that the Constitution of Bosnia and Herzegovina does not contain any provision that provides for the obligatory separation of church from the State, nor a status of such organizations in Bosnia and Herzegovina or in the Entities. If the challenged Article sets forth the Serbian Orthodox Church as the church of the Serb people and other peoples of the Orthodox religion in the Republika Srpska and if the same Article stipulates that the Republika Srpska shall materially support the Orthodox Church and co-operate with it, it does not prohibit the existence of other religious communities, especially if they account for the first and second Paragraphs of the challenged Article which read as follows: “freedom of religion is guaranteed”, “religious communities shall be equal before the law and shall be free to perform religious affairs and ceremonies. They may open religious schools and perform religious education in all schools at all levels of education; they may engage in economic and other activities, receive gifts, establish legacies and manage them, in conformity with the law”. Therefore, the provision of paragraph 4 of Article 28 of the Constitution of the Republika Srpska cannot be interpreted separately from other paragraphs of that Article or separately from Article 10 of the Constitution of the Republika Srpska. A correct interpretation cannot lead to the conclusion that paragraph 4 of Article 28 has a discriminatory character.

 

The arguments of the applicant who asserted in the reasons of the decision: “This statement is not hypothetical, which proves the permanent discriminating acting of the authorities of the Republika Srpska which prevent the reconstruction of mosques which had been destroyed during the war”, cannot be accepted as a consequence of the constitutional solution for the Constitution of the Republika Srpska but as a consequence of the recent political situation (atmosphere) which, in comparison with information brought forth in the majority opinion, has been improved. Moreover, in this type of dispute – abstract legal dispute (review of constitutionality), what is relevant is the character of the legal norm, i.e. its contents and not the factual situation that is very often different. Therefore, paragraph 4 of Article 28 of the Constitution of the Republika Srpska cannot be analysed in an isolated manner, i.e. it must be analysed in connection with other the Articles of the Constitution of the Republika Srpska, particularly with Article 10 of the Constitution of the Republika Srpska, which shall inevitably lead to its legal meaning consistent with the nature of the governmental structure of Bosnia and Herzegovina and the nature of its Entities, i.e. status of the peoples in the Entities and at the level of Bosnia and Herzegovina.

 

 

 

                       Prof. Dr. Snežana Savić and

                   Prof. Dr. Vitomir Popović

                                                                     Judges

                                                                 of the Constitutional Court of Bosnia and Herzegovina