The Constitutional Court declares the following provisions unconstitutional:

Transcription

1 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.

2 2 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 cooperation 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;

3 3 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 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 The

4 4 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 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;

5 5 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; [ ].

6 6 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 cooperation 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.

7 7 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

8 8 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.

9 9 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

10 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

11 11 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.

12 12 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

13 13 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 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

14 14 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

15 15 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