The Constitutional Court of Bosnia and Herzegovina, sitting, in accordance with Article VI(3)(a) of the Constitution of Bosnia and Herzegovina, Article 59(2)(2), Article 61(1) and (2) and Article 63(4) of the Rules of the Constitutional Court of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 60/05, 64/08 and 51/09), in the Plenary and composed of the following judges: Mr. Miodrag Simović, President Ms. Valerija Galić, Vice-President Ms. Constance Grewe, Vice-President Ms. Seada Palavrić, Vice-President Mr. Tudor Pantiru Mr. Mato Tadić Mr. Mirsad Ćeman Ms. Margarita Tsatsa-Nikolovska Mr. Zlatko M. Knežević Having deliberated on the request of Mr. Bakir Izetbegović, member of the Presidency of Bosnia and Herzegovina in case no. U 9/11, at its session held on 23 September 2011 adopted the following
2 DECISION ON ADMISSIBILITY AND MERITS The request of Mr. Bakir Izetbegovic, member of the Presidency of Bosnia and Herzegovina is hereby granted. It is hereby established that Article 17 and Article 39(1) of the Law on Citizenship of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 4/97, 13/99, 41/02, 6/03, 14/03, 82/05, 43/09 and 76/09) are not consistent with Article I(7)(b) and (d) of the Constitution of Bosnia and Herzegovina. Pursuant to Article 63(4) of the Rules of the Constitutional Court of Bosnia and Herzegovina, the Parliamentary Assembly of Bosnia and Herzegovina is ordered to harmonize Article 17 and Article 39(1) of the Law on Citizenship of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 4/97, 13/99, 41/02, 6/03, 14/03, 82/05, 43/09 and 76/09) with Article I(7)(b) and (d) of the Constitution of Bosnia and Herzegovina, within six months from submission of this decision. Pursuant to Article 74(5) of the Rules of the Constitutional Court of Bosnia and Herzegovina, the Parliamentary Assembly of Bosnia and Herzegovina is ordered to inform the Constitutional Court of Bosnia and Herzegovina, within the time limit as ordered in the previous paragraph, on the measures taken to enforce this Decision. This Decision shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette
3 of the Federation of Bosnia and Herzegovina, the Official Gazette of the Republika Srpska and the Official Gazette of the Brcko District of Bosnia and Herzegovina. REASONING I. Introduction 1. On 25 May 2011, Mr. Bakir Izetbegović, member of the Presidency of Bosnia and Herzegovina ( the applicant ), lodged with the Constitutional Court of Bosnia and Herzegovina ( the Constitutional Court ) a request for review of constitutionality of Articles 17 and 39 of the Law on Citizenship of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 4/97, 13/99, 41/02, 6/03, 14/03, 82/05, 43/09 and 76/09; hereinafter: the Law on Citizenship ). II. Procedure before the Constitutional Court 2. Pursuant to Article 22(1) of the Rules of the Constitutional Court, on 3 June 2011 the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina ( the House of Representatives ) and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina ( the House of Peoples ) were requested to submit their respective replies to the request. 3. On 22 July 2011, the House of Representatives communicated their opinion on the request for review of constitutionality of Articles 17 and 39 of the Law on Citizenship, while the House of Peoples communicated their opinion on 29 July 2011. 4. Pursuant to Article 26(2) of the Rules of the Constitutional Court, the respective opinions of the House of Representatives and the House of Peoples were communicated to the applicant on 23 July 2011. III. Request a) Allegations of the Request 5. The applicant holds that the provisions of Articles 17 and 39 of the Law on Citizenship are not consistent with Article I(7) of the Constitution of Bosnia and Herzegovina, Article II(4) in conjunction with Article II(3)(f) of the Constitution of Bosnia and Herzegovina, Article 14 in conjunction with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( the European Convention ) and Article 1 of Protocol No. 12 to the European Convention. 6. The applicant alleges that as to the guarantees under Article I(7) of the Constitution of Bosnia and Herzegovina, the intention of the framer of the BiH Constitution is clear, that is to ensure protection of acquired citizenship of Bosnia and Herzegovina, as determined in Article I(7)(b), which explicitly states that
4 no person shall be deprived of Bosnia and Herzegovina or Entity citizenship arbitrarily or so as to leave him or her stateless. He also points out that it is further guaranteed by the same article that no person shall be deprived of Bosnia and Herzegovina or Entity citizenship on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The aforementioned constitutional provision, the applicant highlights, prohibits deprivation of BiH citizenship as well as discrimination on any ground, and it includes the notion other status, which, in the present case, must and can only be seen in the light of the fact relating to the existence of another citizenship and of a different legal status of BiH citizens living in the neighboring countries when compared to those BiH citizens who live in countries that are not neighboring countries to Bosnia and Herzegovina. The notion other status, it is further stated by the applicant, can also be seen in relation to BiH citizens living in Bosnia and Herzegovina, but who acquired citizenship of another country which is not a neighboring country of Bosnia and Herzegovina. 7. The applicant stresses that Article I(7)(d) of the Constitution of Bosnia and Herzegovina determines that Citizens of Bosnia and Herzegovina may hold the citizenship of another state, provided that there is a bilateral agreement, approved by the Parliamentary Assembly in accordance with Article IV(4)(d), between Bosnia and Herzegovina and that state governing this matter. In other words, it is further stated, this provision does not stipulate a possibility of deprivation of BiH citizenship in the event of acquisition of another citizenship, but to the contrary. The applicant emphasizes that given the inviolability of BiH citizenship, as determined in Article I(7)(b), it is possible to restrict the possibility of acquiring another citizenship, except for the original citizenship of Bosnia and Herzegovina, but the provision of Article I(7)(d) must not be construed as the possibility of deprivation of BiH citizenship in the event of acquisition of another citizenship, as this provision has to be viewed in the context of the provision of Article I(7)(b) and it should not be viewed separately, neglecting the imperative norm of Article I(7)(b) of the Constitution of Bosnia and Herzegovina. The possibility of deprivation of BiH citizenship, in accordance with the text of the provision of Article I(7), could possibly be applicable to deprivation of subsequently acquired BiH citizenship in cases where there is no bilateral agreement, i.e. as in cases of acquisition of civil rights in which there is an original or derivative manner of acquiring these rights. By applying these principles to the present case, the applicant alleges, it can be concluded that it is possible to withdraw citizenship only if it was acquired in a derivative manner and if no bilateral agreement exists, but it is in no way possible, by applying Article I(7)(b) which explicitly prohibits it, to withdraw original citizenship or BiH citizenship which has been acquired first.
5 8. In the opinion of the applicant, in view of the aforementioned, the challenged provisions of the Law on Citizenship are inconsistent with Article I(7) of the Constitution of Bosnia and Herzegovina as they provide the possibility of deprivation of BiH citizenship in an arbitrary manner, contrary to the constitutional guarantees. The aforementioned constitutional guarantees can only been construed so as to say that the Constitution of Bosnia and Herzegovina contains a clear position as to the protection of BiH citizens and that it is possible to restrict other rights such as the right to acquire another citizenship on condition that a bilateral agreement exists. Any other interpretation of the mentioned article would give rise to a violation of the constitutional rights of BiH citizens. In view of the above, the applicant holds that the challenged articles of the Law on Citizenship, contrary to the Constitution of Bosnia and Herzegovina, stipulate the possibility of deprivation of BiH citizenship in an unconstitutional manner and, thereby, violate in an unconstitutional manner Article I(7)(b) of the Constitution of Bosnia and Herzegovina. 9. The applicant further alleges that the challenged articles of the Law on Citizenship define at least two types of activities of the State relating to individuals in respect of their citizenship. The first situation concerns the persons who can keep dual citizenship in cases where there is a bilateral agreement between Bosnia and Herzegovina and other countries (mainly the neighboring countries of BiH). The other situation relates to the persons who, pursuant to Articles 17 and 39, could not keep the BiH citizenship, i.e. they would lose their citizenship of Bosnia and Herzegovina under the force of law, in spite of their will to keep their original citizenship, i.e. the citizenship of Bosnia and Herzegovina. In the applicant s opinion, by such legal arrangements it was probably assumed that persons who acquired other citizenships were no longer interested in keeping their original citizenship. However, taking into account that the relevant group of persons opposes it, this is a completely erroneous and arbitrary assumption. 10. On the other hand, in spite of a clearly expressed interest of their citizens, the applicant alleges, the BiH authorities have failed to take activities with a view to entering into bilateral agreements with the countries where a large number of BiH citizens acquired another citizenship, and in order to make it possible for those BiH citizens to keep their citizenship of Bosnia and Herzegovina. In addition, it is further stressed, one has to bear in mind that those citizens left Bosnia and Herzegovina due to the 1990s war activities and that they, by obtaining another citizenship, tried to gain some status and to provide sustenance for themselves and their families in the countries where they settled. Some of those citizens have returned to Bosnia and Herzegovina but they gained citizenship of another country, wherein they acquired certain rights in accordance with their acquired citizenship status. For these reasons, in the applicant s opinion, the
6 intention and motive of the legislator to take away the BiH citizenship from citizens who, in the meantime, obtained another citizenship remains completely unclear. 11. In the present situation, concludes the applicant, it is obvious that by adopting the contested articles of the Law on Citizenship, the citizens/nationals of Bosnia and Herzegovina who live in the countries with which BiH has no bilateral agreements concluded or the citizens/nationals of Bosnia and Herzegovina who live in Bosnia and Herzegovina but acquired citizenship of a country that is not a neighboring country to BiH, have been brought into an unfavorable position when compared to the citizens/nationals of Bosnia and Herzegovina who acquired citizenship of any country with which Bosnia and Herzegovina has entered into such agreements. Such conduct clearly indicates, in the opinion of the applicant that this group of citizens is in an analogous situation and has been subject to differential treatment, given the inactivity of the competent state authorities who have not entered into bilateral agreements with other countries in which BiH citizens live and to whom the challenged provisions refer. 12. The applicant alleges that according to the data of the BiH Ministry of Human Rights and Refugees, more than 1,350,000 persons from Bosnia and Herzegovina live abroad, which, compared to the number of people living in Bosnia and Herzegovina, represents one-third of its entire population. At the same time, it is stressed, according to a World Bank estimate, in 2005 there were 1,471,594 emigrants from Bosnia and Herzegovina, i.e. 37.7% of the total population of Bosnia and Herzegovina. If the Kingdom of Sweden, Serbia, Montenegro and the Republic of Croatia (although a bilateral agreement has not been entered into with the Republic of Croatia) are taken out of the aforementioned list, this figure would fall by circa 250,000 citizens of Bosnia and Herzegovina. However, concludes the applicant, it is certain that at least 1,000.000 BiH citizens would be affected by the application of the challenged provisions. 13. The applicant holds that the Council of Ministers has not been effective in taking actions to conclude bilateral agreements, given the fact that Bosnia and Herzegovina has entered into one bilateral agreement with countries that are not neighboring countries to BiH (the Kingdom of Sweden), with a view to creating the conditions that would ensure the protection of BiH citizens in accordance with the Constitution of BiH. Furthermore, it must be noted that the Council of Ministers, contrary to its legal obligation, has not yet entered into a bilateral agreement even with the Republic of Croatia, as a neighboring country; this demonstrates that the state authorities have been inactive in protecting one-third of its citizens and in complying with the laws enacted by the competent legislative body. Finally, in the opinion of the applicant, a question arises as to the reasons for which the competent bodies in BiH have failed to
7 start activities with a view to entering into bilateral agreements with the aforementioned countries in accordance with the citizens interest, while, by the Law on Citizenship, more precisely, by Article 39(2) thereof, they establish an obligation according to which bilateral agreements should be only entered into with neighboring countries within 6 months. In this manner, the applicant opines, the Law on Citizenship has deferential treatment of the BiH citizens living in the neighboring countries when compared to those who live in other countries or those who live in Bosnia and Herzegovina but hold citizenship of a country that is not a neighboring country to BiH. Such conduct of the authorities, including the application of the challenged provisions of the law, concludes the applicant, will result in circa 1,000,000 BiH citizens losing their BiH citizenship on 1 January 2013. 14. The applicant points out those arguments for enacting such Law on Citizenship, including the challenged provisions, boil down to the particularities of Bosnia and Herzegovina and its ethnic composition. Taking into account the ethnic composition of the BiH citizens, those, who are of the same ethnic origin as the majority population in neighboring countries, are given the possibility of keeping dual citizenship, while other citizens are de facto deprived of that right due to the inactivity of the Council of Ministers. The applicant considers that such measures, which are undoubtedly based on ethnic origin, cannot be viewed within scope of the notion of objective and reasonable justification. 15. Finally, the applicant further alleges, it would be fully reasonable and acceptable that a country, in which a BiH citizen has acquired another citizenship, stipulates conditions for acquiring its citizenship, either by renouncing or by being released from their original citizenship. As a result, BiH citizens could decide which citizenship to keep (as, for example, is the case in Germany). However, in the appellant s opinion, it is completely unacceptable and discriminatory that the State of Bosnia and Herzegovina does not allow BiH citizens, who wish to keep their original citizenship, to keep their BiH citizenship if another country, where they acquired another citizenship, does not require BiH citizens to renounce their original citizenship. By such conduct, Bosnia and Herzegovina discriminates its citizens who do not hold citizenship of neighboring countries but who have acquired citizenship of another country, which is not a neighboring country of Bosnia and Herzegovina, which is contrary to Article 1 of Protocol No. 12 to the European Convention, Article II(4) of the Constitution of Bosnia and Herzegovina in conjunction with Article II(3)(f) of the Constitution of Bosnia and Herzegovina and Article 14 in conjunction with Article 8 of the European Convention. The applicant holds that in view of the fact that the majority of BiH citizens who have acquired another citizenship of a country that is not a neighboring country of Bosnia and Herzegovina, if they decided to return to Bosnia and Herzegovina and to keep their BiH citizenship, could not enjoy the rights
8 stemming from the right to a family life and they would practically be in a situation to lose their status and rights stemming from citizenship of the country in which they presently live together with their families. In this way, an excessive burden has been placed upon them for which there is no reasonable and objective justification. b) Response to the Request 16. The House of Representatives stated in their communicated opinion that after a discussion about the request in question, the Constitutional Law Commission of the House of Representatives maintained the positions of the Law on Citizenship with two votes in favor, three votes against and two abstentions. It is also stated that the members of the aforementioned commission Mr. Šefik Džzaferović and Mr. Saša Magazinović voted in favor of the request for review of constitutionality of Articles 17 and 39 of the Law on Citizenship and separated their dissenting opinion. 17. The House of Peoples stated in their opinion that the Constitutional Law Commission of the House of Peoples, after a discussion about the request in question, had not reached any decisions because two members voted in favor of maintaining the positions of the Law on Citizenship, one member voted against and two members abstained, while in respect of the decision supporting the request for review of constitutionality of Articles 17 and 39 of the Law on Citizenship, one member voted in favor, two members against and two abstained. It was further highlighted that the said commission unanimously issued a conclusion to order the Council of Ministers of BiH to take steps to resolve the issues contained in the concerned request for review of constitutionality of Articles 17 and 39 of the Law on Citizenship. IV. Relevant Law 18. The Constitution of Bosnia and Herzegovina, in its relevant part, reads: Preamble Inspired by the Universal Declaration of Human Rights Article I(7) Citizenship There shall be a citizenship of Bosnia and Herzegovina, to be regulated by the Parliamentary Assembly, and a citizenship of each Entity, to be regulated by each Entity, provided that:
9 b. No person shall be deprived of Bosnia and Herzegovina or Entity citizenship arbitrarily or so as to leave him or her stateless. No person shall be deprived of Bosnia and Herzegovina or Entity citizenship on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. d. Citizens of Bosnia and Herzegovina may hold the citizenship of another state, provided that there is a bilateral agreement, approved by the Parliamentary Assembly in accordance with Article IV(4)(d), between Bosnia and Herzegovina and that state governing this matter. Persons with dual citizenship may vote in Bosnia and Herzegovina and the Entities only if Bosnia and Herzegovina is their country of residence. Article II(5) Refugees and Displaced Persons All refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 to the General Framework Agreement, to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void. Article VI(3) Jurisdiction The Constitutional Court shall uphold this Constitution. 19. Universal Declaration of Human Rights (Adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948) in its relevant part reads: Article 15 Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
10 20. European Convention on Nationality (Decision on ratification of the European Convention on Nationality, Strasbourg 6 November 1997, the Official Gazette of Bosnia and Herzegovina International Contracts no. 2/08) in its relevant part reads: Article 1 Object of the Convention This Convention establishes principles and rules relating to the nationality of natural persons and rules regulating military obligations in cases of multiple nationality, to which the internal law of States Parties shall conform. Article 7 Loss of nationality ex lege or at the initiative of a State Party 1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: a. voluntary acquisition of another nationality; [...] Article 15 Other possible cases of multiple nationality The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it; b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality. Article 16 Conservation of previous nationality A State Party shall not make the renunciation or loss of another nationality a condition for the acquisition or retention of its nationality where such renunciation or loss is not possible or cannot reasonably be required. 21. Law on Citizenship of Bosnia and Herzegovina (Official Gazette of BiH nos. 4/97, 13/99, 41/02, 6/03, 14/03, 82/05, 43/09 and 76/09) in its relevant part, reads: Article 1 This Law determines the conditions for the acquisition and loss of citizenship of Bosnia and Herzegovina [...] in accordance with the Constitution of Bosnia and Herzegovina. [...] Article 5
11 Citizenship of BiH is acquired in accordance with the provisions of this law: 1. by descent 2. by birth on the BH territory 3. by adoption 4. by naturalization 5. by international agreement. Article 9 A foreigner who has submitted a request for acquisition of the citizenship of BiH may acquire it by naturalization if he or she fulfils the following conditions: 6. he or she renounces or otherwise loses his or her former citizenship upon the acquisition of the citizenship of BiH, unless a bilateral agreement as referred to in Article 14 provides otherwise. The renunciation or loss of the former citizenship is not required if this is not permitted or cannot be reasonably required. Citizenship of BiH is lost: a. by operation of law b. by renunciation c. by release d. by withdrawal Article 16 e. by international agreement. Loss by operation of Law Article 17 Citizenship of BiH is lost by the voluntary acquisition of another citizenship, unless a bilateral agreement between BiH and that State, approved by the Parliamentary Assembly in accordance with Article IV (4)(d) of the Constitution provides otherwise. Article 39
12 1. All persons who before the entry into force of this law voluntarily acquired another citizenship lose the citizenship of BiH, if they do not, within 15 years from the date this Law enters into force, renounce the other citizenship, unless a bilateral agreement provides otherwise. The renunciation of the other citizenship is not required if this is not permitted or cannot be reasonably required. 2. The Council of Ministers of Bosnia and Herzegovina shall propose to the Presidency to conclude bilateral agreements referred to in paragraph 1 with neighboring countries within 6 months after this law enters into force. V. Admissibility 22. In examination of the admissibility of the request, the Constitutional Court started from the provisions of Article VI(3)(a) of the Constitution of Bosnia and Herzegovina. Article VI(3)(a) of the Constitution of Bosnia and Herzegovina reads: The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: Whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina. Whether any provision of an Entity's constitution or law is consistent with this Constitution. Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.
13 23. In respect of the challenged provisions of the Law on Citizenship, the Constitutional Court highlights that, although the provision of Article VI(3)(a) of the Constitution of Bosnia and Herzegovina does not stipulate the explicit jurisdiction of the Constitutional Court to review the constitutionality of laws or legal provisions of Bosnia and Herzegovina, the substantial notion of the jurisdiction as specified by the Constitution of Bosnia and Herzegovina contains in itself the title for the Constitutional Court to have such jurisdiction, particularly in the role of the Constitutional Court as the body upholding the Constitution of Bosnia and Herzegovina. The aforementioned position of the Constitutional Court in such cases in its previous case-law clearly indicates that the Constitutional Court has jurisdiction to review the constitutionality of the laws or individual provisions of the laws of Bosnia and Herzegovina (see the decision of the Constitutional Court no. U 14/02 of 30 January 2004, the Official Gazette of BiH no. 18/04). 24. Furthermore, the concerned request for review of constitutionality of the challenged provisions of the Law on Citizenship was filed by a member of the Presidency of Bosnia and Herzegovina. It follows from the aforementioned that the request has been lodged by an authorized applicant under Article VI(3)(a) of the Constitution of Bosnia and Herzegovina. 25. In view of the provisions of Article VI(3)(a) of the Constitution of Bosnia and Herzegovina and Article 17 of the Rules of the Constitutional Court, the Constitutional Court has established that the request for review of constitutionality of the provisions of the Law on Citizenship is admissible, having been filed by an authorized person and that there are no other formal reasons which would make it inadmissible under Article 17(1) of the Rules of the Constitutional Court. VI. Merits 26. The applicant alleges that Articles 17 and 39 of the Law on Citizenship are not consistent with Article I(7) of the Constitution of Bosnia and Herzegovina, Article II(4) in conjunction with Article II(3)(f) of the Constitution of Bosnia and Herzegovina, Article 14 of the European Convention in conjunction with Article 8 of the European Convention and Article 1 of Protocol No. 12 to the European Convention. In the applicant s opinion, the challenged articles of the Law on Citizenship are not consistent with the aforementioned provisions of the Constitution of Bosnia and Herzegovina because they stipulate the loss of citizenship of Bosnia and Herzegovina in cases where there is no bilateral agreement on dual citizenship
14 with the country whose citizenship has been acquired. In addition, the applicant considers that the challenged provisions of the Law on Citizenship violate the right to general prohibition of discrimination under the aforementioned Protocol No. 12 to the European Convention as well as the right not to be discriminated against in relation to the right to family life of the citizens of Bosnia and Herzegovina who have acquired citizenship of another country with which BiH has no bilateral agreement on dual citizenship in comparison with those citizens who have acquired citizenship of another country with which there is such agreement. 27. Within the context of review of constitutionality of the challenged provisions of Articles 17 and 39 of the Law on Citizenship, the Constitutional Court holds that it is necessary to indicate some principles of the international law on citizenship. In that regard, the Constitutional Court notes that one of the most significant sources concerning the international principles of citizenship is the Universal Declaration of Human Rights from 1948, referred to also in the Preamble of the Constitution of Bosnia and Herzegovina. The aforementioned declaration proclaims that everyone has the right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. 28. Pursuant to the international principles, it is understood that the issues of citizenship fall under the internal (exclusive) jurisdiction of a state. Citizenship is a legal relationship under public law between a natural person and a sovereign state pursuant to which that person has the status of citizen, i.e. it is a legal connection that binds a person to a state. Every state has the right to determine by way of its constitution and laws who is entitled to its citizenship. A state is free to grant its citizenship to whom it chooses, without being limited by the international law. Thus, every state in determining whether a person is its citizen does so pursuant to its regulations on citizenship and, vice versa, it may not determine the connection between a natural person and a foreign state pursuant to its legal rules on citizenship. Although the international law does not accept the doctrine of the so-called unbreakable allegiance preventing a state to release a person from its citizenship contrary to that person s will, states are permitted as a rule in exceptional cases to take away their citizenship from their citizens against their will. 29. Regarding the issue of acquisition and loss of citizenship, there is no uniform case law in that respect in internal law of states. There are, however, some fundamental principles: 1) that every state has a discretionary right to determine who is entitled to its citizenship; 2) that a state may stipulate through its laws the various conditions for granting its citizenship; and 3) that a state may not take away its citizenship from a person against his or her will. Some states with numerous emigrants or having their ethnic members in the neighboring countries allow acquisition of their citizenship on purpose by way of their laws without
15 placing any obligation upon them to be released from their previous citizenship. Furthermore, in regulating relations of successor states arising from the dissolution of a predecessor state dual citizenship is allowed to some persons in some cases as a political solution of other problems. 30. The Constitutional Court notes that the European Convention on Nationality (Decision on ratification of the aforementioned Convention entered into force on 10 March 2008) has established the principles and rules relating to the citizenship of natural persons and rules regulating military service in cases of multiple citizenship and the internal law of the member states has to be harmonized with them. The said convention affirmed the international rule that it is exclusive right of a state to determine who their citizens are. Article 7(1)(a) of the aforementioned convention regulates that a State Party may not provide in its internal law for the loss of its nationality ex lege except in case of voluntary acquisition of another nationality. On the other hand, Article 16 of the said convention stipulates that a State Party shall not make the renunciation or loss of another nationality a condition for the acquisition or retention of its nationality where such renunciation or loss is not possible or cannot reasonably be required. 31. The Constitutional Court will examine the consistency of the challenged provisions of the Law on Citizenship primarily in relation to the relevant provisions of the Constitution of Bosnia and Herzegovina, having in mind its constitutional responsibilities, in particular the first sentence of Article VI(3) of the Constitution of Bosnia and Herzegovina which reads: The Constitutional Court shall uphold this Constitution. 32. The first sentence of Article I(7)(b) of the Constitution of Bosnia and Herzegovina stipulates that no person shall be arbitrarily deprived of Bosnia and Herzegovina citizenship. The second sentence of Article I(7)(b) of the Constitution of Bosnia and Herzegovina prescribes grounds which prohibit arbitrary deprivation of the citizenship of Bosnia and Herzegovina (sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth). However, the Constitutional Court notes that the list of the aforementioned grounds is not thereby exhausted because the above sentence in the Constitution of Bosnia and Herzegovina ends with the phrase: or other status. The first sentence of Article I(7)(d) of the Constitution of Bosnia and Herzegovina stipulates that citizens of Bosnia and Herzegovina may hold the citizenship of another state, provided that there is a bilateral agreement between Bosnia and Herzegovina and that state governing this matter. The second sentence of Article I(7)(d) of the Constitution of Bosnia and Herzegovina prescribes that persons with dual citizenship may vote in Bosnia and Herzegovina only if Bosnia and Herzegovina is their country of residence.
16 33. The Constitutional Court recalls the fact that there are a large number of BiH citizens who have acquired the citizenship of another country, regardless of the fact whether a bilateral agreement on dual citizenship has been concluded. It is beyond dispute that the BiH citizens managed to acquire the citizenship of another country because it was possible to do that under the legislation of that other country, which is in accordance with the international principles on citizenship that a state may not determine the connection between a natural person and a foreign state pursuant to its legal rules on citizenship. 34. The Constitutional Court highlights that the challenged legal provisions (once their application commences on 1 January 2013) will impose upon the BiH citizens who have the citizenship of another state the condition to renounce this other citizenship if they wish to keep the BiH citizenship. The aforementioned condition will not be imposed only if a bilateral agreement has been concluded on dual citizenship between Bosnia and Herzegovina and that other country. 35. Being guided by the constitutional principle under which it shall uphold this Constitution, the Constitutional Court holds it to be beyond dispute that it is the interest of Bosnia and Herzegovina to keep the bond with its citizens to whom it is the state of the so-called parent or original citizenship. In the opinion of the Constitutional Court, the challenged legal provisions are in collision with the aforementioned interest of Bosnia and Herzegovina. The Constitutional Court notes that the Constitution of Bosnia and Herzegovina does not provide for the citizens of Bosnia and Herzegovina who acquired the citizenship of another country to have to renounce the citizenship of that other country if they wish to keep (also) the citizenship of Bosnia and Herzegovina. It is true that the Constitution of Bosnia and Herzegovina stipulates that the citizens of Bosnia and Herzegovina may hold the citizenship of another state provided that there is a bilateral agreement between Bosnia and Herzegovina and that state. However, the Constitution of Bosnia and Herzegovina, more precisely Article I(7)(d), does not contain a provision stipulating that the citizens of Bosnia and Herzegovina who hold the citizenship of another country shall have to renounce the citizenship of that other country unless a bilateral agreement has been concluded between Bosnia and Herzegovina and that state if they wish to keep (also) the citizenship of Bosnia and Herzegovina. That is exactly what the challenged legal provisions prescribe, thereby imposing upon the citizens of Bosnia and Herzegovina who hold the citizenship of another country a condition over which they have no influence (for example: if the legislation of some state does not allow the conclusion of bilateral agreement on dual citizenship or there exists no intention and activity by the bodies of Bosnia and Herzegovina competent for conclusion of a bilateral agreement). As indicated in the preceding part of the reasoning, the citizens of Bosnia and Herzegovina have acquired the citizenship of another country based upon the regulations of that state and
17 regardless of the fact whether a bilateral agreement on dual citizenship has been concluded (the most prominent example being the Republic of Croatia). 36. The Constitutional Court highlights that the Constitution of Bosnia and Herzegovina has been enacted in specific historical circumstances. The enactment of the Constitution of Bosnia and Herzegovina (which is one of the annexes to the international General Framework Agreement for Peace in Bosnia and Herzegovina) coincides with end of the war activities in Bosnia and Herzegovina. The war in Bosnia and Herzegovina was the underlying cause for a great number of BiH citizens to leave and become refugees in other countries (according to the data supplied by the Ministry of Human Rights and Refugees of Bosnia and Herzegovina the number of refugees currently living abroad is equal to one third of its prewar population). It is, therefore, beyond dispute that Bosnia and Herzegovina is a state with a large portion of prewar population living in other countries where they had arrived (mostly) as war refugees. The fact is that the refugees from Bosnia and Herzegovina applied for citizenship of the country to which they fled primarily in order to resolve the issues of personal and existential nature. It is beyond dispute that the application of the challenged legal provisions would exceptionally aggravate the return of this category of refugees to Bosnia and Herzegovina because the revoking of their BiH citizenship would make them foreign nationals in their parent state. The Constitutional Court as the institution that shall uphold this Constitution is absolutely certain that it was not the will of the framer of the Constitution to render it more difficult for the refugees to return to their country. Therefore, the Constitutional Court finds that Article I/7 of the Constitution of Bosnia and Herzegovina must be interpreted together with Article II/5 of the Constitution of Bosnia and Herzegovina that provides that all refugees and displaced person shall have the right to freely return to their homes pursuant to guarantees of the right under Annex 7 of the General Framework Agreement for Peace in BiH, that inter alia, for the purpose of safe and voluntary return of refugees or displaced persons, obligates all parties to this Agreement to repeal of domestic legislation and administrative practices with discriminatory intent or effect (Article 1. 3.a of Annex 7). 37. The Constitutional Court holds that it is not the will of the framers of the Constitution in regard to the citizens of Bosnia and Herzegovina who hold the citizenship of another state and live in Bosnia and Herzegovina or throughout the world to condition the holding of the citizenship of Bosnia and Herzegovina by renouncing their citizenship of another state or by the existence of a bilateral agreement between Bosnia and Herzegovina and that state. As already noted, it is the undisputable interest of Bosnia and Herzegovina to keep a certain bond with its citizens to whom it is the state of the so-called parent or original citizenship. Accordingly, the Constitutional Court does not see any reason to impose by the challenged
18 legal provisions any conditions for keeping the BiH citizenship upon the citizens of Bosnia and Herzegovina who hold the citizenship of another state (by way of renouncing their citizenship of another state or by the existence of a bilateral agreement) because such conditions are neither an expression of the will of the framers of the Constitution nor are they prescribed by the relevant provisions of the Constitution of Bosnia and Herzegovina. The Constitutional Court notes that the Constitution of Bosnia and Herzegovina does not contest the right of the relevant authorities of Bosnia and Herzegovina (as referred to in Article I(7) of the Constitution of Bosnia and Herzegovina) to regulate (prescribe) conditions relating to the citizenship including deprivation or loss of BiH citizenship. However, the Constitutional Court holds in the present case that the conditions as prescribed by the challenged legal provisions for keeping the citizenship of Bosnia and Herzegovina (renunciation of the citizenship of another country or the existence of a bilateral agreement) are not consistent with the relevant provisions of the Constitution of Bosnia and Herzegovina for the reasons as stated in the reasoning part of this decision. 38. In view of the aforementioned, the Constitutional Court concludes that Article 17 and Article 39(1) of the Law on Citizenship are not consistent with the provisions of Article I(7)(b) and (d) of the Constitution of Bosnia and Herzegovina. 39. In view of the fact that the challenged law itself has postponed the application of the aforementioned unconstitutional provisions, the Constitutional Court has decided not to revoke them but to leave an appropriate period, in terms of Article 63(4) of the Rules of the Constitutional Court, within which the legislator shall be obligated to remove the established unconstitutionality. Remaining Assertions from the Requests 40. In the light of the conclusion of the Constitutional Court concerning the inconsistency of the provisions of Articles 17 and 39(1) of the Law on Citizenship of Bosnia and Herzegovina with the provisions of Article I(7)(b) and (d) of the Constitution of Bosnia and Herzegovina, the Constitutional Court deems it unnecessary to examine the applicant s allegations about the challenged provisions of the Law on Citizenship being not consistent with Article II(4) in conjunction with Article II(3)(f) of the Constitution of Bosnia and Herzegovina, Article 14 of the European Convention in conjunction with Article 8 of the European Convention and Article 1 of Protocol No. 12 to the European Convention. VII. Conclusion
19 41. The provisions of Article 17 and Article 39(1) of the Law on Citizenship are not consistent with Article I(7)(b) and (d) of the Constitution of Bosnia and Herzegovina because those constitutional provisions have not established that the citizens of Bosnia and Herzegovina will be deprived of their citizenship if they hold the citizenship of another state and have not renounced it until the date set by the challenged law, i.e. if Bosnia and Herzegovina has not concluded a bilateral agreement on dual citizenship with that state. 42. In view of the provision of Article 61(1) and (2) and Article 63(4) of the Rules of the Constitutional Court, the Constitutional Court has decided as in the enacting clause of this Decision. 43. According to Article VI(5) of the Constitution of Bosnia and Herzegovina, the decisions of the Constitutional Court shall be final and binding. Prof Dr Miodrag Simović President Constitutional Court of Bosnia and Herzegovina