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Having regard to Article VI.3 (a) of the Constitution of Bosnia
and Herzegovina and Articles 35, 37, 54, 58 and 59 of its Rules of Procedure,
the Constitutional Court of Bosnia and Herzegovina, at its session on 30 June
and 1 July 2000, adopted the following
PARTIAL DECISION
A. With regard to the Constitution of Republika Srpska:
The Constitutional Court declares the following provisions or
parts of provisions unconstitutional
a) Paragraphs 1, 2, 3 and 5 of the Preamble, as amended by Amendments XXVI
and LIV
b) the wording State of the Serb people and of Article 1, as amended by
Amendment XLIV.
B.with regard to the Constitution of the Federation of Bosnia and
Herzegovina
The Constitutional Court declares the following parts of
provisions unconstitutional
a) the wording Bosniacs and Croats as
constituent peoples, along with Others, and as well as in the exercise of
their sovereign rights of Article I. 1. (1), as amended by Amendment
III.
The provisions or parts of provisions of
the Constitutions of Republika Srpska and the Federation of Bosnia and
Herzegovina which the Constitutional Court has found to be in contradiction with
the Constitution of Bosnia and Herzegovina cease to be valid from the date of
the publication in the Official Gazette of Bosnia and Herzegovina.
This decision shall be published in the Official Gazette of
Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and
Herzegovina and the Official Gazette of Republika Srpska.
REASONS
I. Proceedings
before the Constitutional Court
1. On 12 February 1998 Mr. Alija Izetbegovia, at that time Chairman of the
Presidency of Bosnia and Herzegovina, instituted proceedings before the
Constitutional Court for the purpose of evaluating the consistency of the
Constitution of Republika Srpska (hereinafter called the RS Constitution ) and
the Constitution of the Federation of Bosnia and Herzegovina (hereinafter
called the Federation Constitution ) with the Constitution of Bosnia and
Herzegovina (hereinafter called the BiH Constitution ). The request was
supplemented on 30 March 1998 when the applicant specified which provisions of
the Entities' constitutions he regards as unconstitutional. The applicant
requested the Constitutional Court to review the following provisions of the
Entities constitutions:
A. With regard to the RS Constitution:
a) The Preamble insofar as 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 Republika Srpska is a State
of the Serb people and of all its citizens;
c) Article 2, paragraph 2, insofar as it refers to the
so-called border between Republika Srpska and the Federation;
d) Article 4, which provides that 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, provides
that Republika Srpska shall regulate and ensure co-operation with the Serb
people outside the Republic;
e) Article 6, paragraph 2, insofar as it provides that a
citizen of Republika Srpska cannot be extradited;
f) Article 7, insofar as it refers to the Serb language and
Cyrillic alphabet being in official use;
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 Republika
Srpska;
i) Amendment LVII, item 1, which supplements the Chapter on
Human Rights and Freedoms and which provides that, in the case of differences
between the provisions on rights and freedoms of the RS Constitution and those
of the BiH Constitution, the provisions which are more favourable to the
individual shall be applied;
j) Article 58, paragraph 1, Article 68, item 6 and the
provisions of Articles 59 and 60 insofar as they refer to different forms of
property, the bearers 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 Republika Srpska shall perform tasks related to
defence, security and relations with other States and international
organizations, and Article 106, paragraph 2, according to which the President of
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 on the President of Republika Srpska the competence to appoint and
recall heads of missions of Republika Srpska in foreign countries and to propose
ambassadors and other international representatives of Bosnia and Herzegovina
from Republika Srpska, as well as Article 90, supplemented by Amendments XLI and
LXII, which confers on the Government of Republika Srpska the right to decide on
the establishment of the Republic s missions abroad;
m) Article 98, according to which 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 on the National Bank the competence
to propose statutes related to monetary policy; and
n) Article 138, as modified by Amendments LI and LXV, which
authorizes organs of 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. With regard to the Federation Constitution
a) Article I.1 (1), insofar as it refers to Bosniacs and Croats
as being constituent peoples.
b) Article I.6 (1), insofar as it refers to Bosnian and Croat
as official languages of the Federation;
c) Article II.A.5. (c), as modified by Amendment VII, insofar
as it provides for dual citizenship;
d) Article III.1 (a), insofar as it provides for the competence
of the Federation to organize and conduct the defence of the Federation;
e) Article IV.B.7 (a) and Article IV.B.8, insofar as they
entrust the President of the Federation with the task of appointing heads of
diplomatic missions and officers of the military.
2. The request was communicated to the National Assembly of Republika Srpska
and the Parliament of the Federation of BiH. On 21 May 1998 the National
Assembly of Republika Srpska submitted its views on the request in writing.
The House of Representatives of the Parliament of the Federation of Bosnia and
Herzegovina submitted its answer on 9 October 1998..
3. In accordance with the Constitutional Court's decision of 5 June 1998, a
public hearing before the Constitutional Court was held in Sarajevo on 15
October 1998, at which representatives and experts of the applicant and of the
House of Representatives of the Federation presented their views on the case.
The public hearing was continued in Banja Luka on
23 January 1999. The applicant was represented in the public hearing by Prof.
Dr. Kasim Trnka and the expert D~emil Sabrihafizovia, the House of
Representatives of the Federation by Enver Kreso and the expert Sead Hod~ia,
the House of Peoples of the Federation by
Mato Zovko and the expert Ivan Bender, and the National Assembly of Republika
Srpska by Prof. Dr. Radomir Lukia and the expert Prof. Dr. Petar Kunia. On
that occasion arguments were presented by representatives and experts of the
applicant, the House of Representatives and the House of Peoples of the
Federation as well as the National Assembly of Republika Srpska.
4. Deliberations on the case took place in the following sessions of the
Court: on 25 and 26 February 1999, 7 and 8 June 1999, 13 and 14 August 1999,
24 and 25 September 1999, and on 5 and 6 November 1999. At its session held on
3 and 4 December 1999, the Court concluded to start with the deliberation and
voting in the present case at the following session, on the basis of the
prepared Draft Decision.
5. At its session on 29 and 30 January 2000 the Court adopted unanimously a
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 Republika Srpska, No.
12/00).
6. At its session on 18 and 19 February 2000 the Court adopted a 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. xx/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 remaining part of this case. The
applicant was represented by Prof. Dr. Kasim
Trnka and the expert D~emil Sabrihafizovia, the House of Representatives of
the Federation by Enver Kreso and the expert Sead Hod~ia and the National
Assembly of Republika Srpska by Prof. Dr. Radomir Lukia and the expert Prof.
Dr. Petar Kunia. The representative and
the expert of the House of Peoples of the Federation, having been invited to
participate according the Court s Rules of Procedure, did not
participate in the public hearing.
8. Deliberations were continued at the session of the Court on 30 June and 1
July 2000 and votes were taken, on the following provisions:
A. With regard to the RS Constitution:
a) The Preamble, as amended by Amendments XXVI and LIV, insofar
as 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, as amended by Amendment XLIV which provides that
Republika Srpska is a State of the Serb people and of all its citizens;
B. With regard to the Federation Constitution
a) Article I.1 (1), as amended by Amendment III, insofar as it refers to
Bosniacs and Croats as being constituent peoples.
II.
Admissibility
9. The Court declared the entire request admissible in its Partial Decision
in 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. With regard to the Constitution of Republika
Srpska
a) The challenged provisions of the Preamble to the RS
Constitution, as amended by Amendments XXVI and LIV, read as
follows:
- Starting from the natural, inalienable and untransferable
right of the Serb people to self-determination on the basis of which that
people, as any other free and sovereign people, independently decides on its
political and State status and secures its economic, social and cultural
development;
- Respecting the centuries-long struggle of the Serb people
for freedom and State independence;
- Expressing the determination of the Serb people to create
its democratic State based on social justice, the rule of law, respect for human
dignity, freedom and equality;
...
- Taking the natural and democratic right, will and
determination of the Serb people from Republika Srpska into account to link its
State completely and tightly with other States of the Serb people;
- Taking into account the readiness of the Serb people to
pledge for peace and friendly relations between peoples and States;
10. The applicant argues that the quoted provisions of the Preamble are not in
conformity with the last paragraph of the Preamble to the BiH
Constitution, Article II.4, Article II.6 and Article III.3 (b) of the BiH
Constitution, since according to that Constitution there are three constituent
peoples - Bosniacs, Croats and Serbs - who, together with other citizens,
exercise their sovereign rights on the whole territory of Bosnia and
Herzegovina without being discriminated against on any ground such as, inter
alia, national origin. He also refers to Article 1 of the RS Constitution in
order to support his claim that the Preamble to the RS Constitution is not in
line with the BiH Constitution. Consequently, in his opinion, it is not
justified to call Republika Srpska a national State of only Serb people.
Moreover, Republika Srpska could not be called a state in its full capacity
since it is called an entity in Article I. 3 of the Constitution of
BiH.
11. The National Assembly of Republika Srpska mainly raised the objection in
its written statement that the Preamble is not an operative part of the RS
Constitution and has no normative character. The same would hold true for the
Preamble of the Constitution of BiH since it does not form part of the
Constitution stricto sensu and has, therefore, no normative character.
In its opinion the text of a preamble can serve only as an auxiliary method in
the interpretation of the constitution of which it is a preface. It may
therefore not serve as a basis for the review of the RS Constitution. In the
course of the public hearings the representative and expert of the National
Assembly furthermore invoked several scholarly opinions on the normative
character of the Preamble of the US Constitution and Hans Kelsen´s viewpoint
that preambles usually do not determine any specific norms for human behavior
and are, therefore, lacking any legally relevant content, being more of an
ideological than legal character. Moreover, they quoted from the Final Award
of the Breko Arbitration that the preamble to the General Framework Agreement
for Peace (GFAP) did not itself create a binding obligation for the parties.
In conclusion, a preamble would not have any normative character since neither
individual rights nor specific obligations of the state authorities would
follow from its text.
12. Furthermore, the Assembly responded in its written statement that there
are many provisions in the RS Constitution which prohibit discrimination and
that the word State may well be used for a political-territorial unit with a
constitution which is called a republic. Using the term state also in Article
1 of the RS Constitution would not allude to independence of the RS. In the
course of the public hearings the representative and expert of the National
Assembly also invoked some articles of the BiH Constitution in order to prove
the statehood quality of the entities attributed by this Constitution itself,
insofar as Article III. 3. (a) of the BiH Constitution would refer to state
functions of the Entities and Article I. 7. would speak of the citizenship of
the Entities. Being questioned the representative of the National Assembly
reaffirmed that the RS has to be seen not as a state in terms of public
international law, but in those of constitutional law.
13. Finally, the expert of the National Assembly of the RS outlined that the
sovereignty of the Entities would be an essential characteristic of their
statehood and that the Dayton Peace Agreement acknowledged the territorial
separation. Moreover, their peoples would have a collective right of
self-organization of their own state so that the entities would act according
to the decisions taken at the level of the common institutions only if they
conform with their own interests. And the expert of the National Assembly of
RS concluded in the public hearing: It is entirely clear that the RS can be
called a state because her statehood is the expression of her original,
united, historical national movement, of her nation which has a united ethnic
basis and forms an independent system of power in order to live really
independently, although as an independent entity in the framework of a complex
state community.
14. Contrary to these positions the expert of the House of Representatives of
the Federation parliament outlined in the public hearing that Bosnia and
Herzegovina is the state and no part of the Constitution nor any of the
Annexes of the GFAP would call the entities anything else than entities. From
the point of view of public international law only BiH was the state which
continues to exist under its name BiH, however with its internal structure
modified. Thus, the principle of territorialization of sovereignty, in
particular the right to secession could not be applied in a multi-ethnic
community. Contrary to the wording state function in the translation used by
the expert of the National Assembly of RS, the English text of Article III. 3.
(a) of the Constitution of BiH would read governmental functions. And since
there are a number of institutions, such as municipalities or notaries, which
certainly do not enjoy the attribute of statehood although they exercise
governmental powers, it follows that entities could even exercise state
functions without being states.
15. The representative of the applicant further outlined in the public hearing
that indeed different positions in constitutional theories exist as to whether
the preamble of a constitution has normative character or not. However, it
would be undisputed that a preamble forms part of a constitution if it
includes either constitutional principles or clear regulations of certain
matters or if the preamble was adopted by the same institution under the same
procedure. Moreover, he invoked the Decision of the Constitutional Council of
the Republic of France of 16 June 1971, according to which the provisions of
the Preamble of the French Constitution do have a normative and binding
character.
16. In response to the applicant's statement the representatives of the
National Assembly of RS outlined that this example is the only exception to the
general rule that a Preamble does not form part of a constitution since the
French Constitution does not include provisions on human rights and freedoms in
the normative part of the Constitution and the preamble thus, by referring to
the French Declaration of the Rights of Man and Citizens, incorporates those
provisions into the Constitution. The Preamble of the Constitution of BiH,
however, would - neither in form nor substance - meet the requirements of legal
norms and could thus never serve as a constitutional basis to review the
Entities` constitutions.
The Constitutional Court finds:
17. As far as the normative character of preambles of constitutions is
concerned, two intimately linked questions were raised by the objections of
the representatives of the National Assembly of Republika Srpska in their
conclusion that this Court is not responsible to review both the Preamble of
the Constitution of RS as well as other provisions of the constitutions of the
Entities in light of the text of the Preamble of the Constitution of BiH:
firstly whether a preamble not being included into the normative part of the
constitution is an integral part of the text of that constitution and
secondly, whether it can have normative character at all since preambular
language would not determine rights or obligations.
18. As far as the scholarly opinions on the legal nature of preambles of
constitutions in general are concerned which were quoted by the
representatives of the parties in abstracto, it is certainly not the duty of
this Court to decide on such scientific debates, but to restrain itself to the
judicial adjudication of the dispute before it. Hence, the Constitutional
Court has to decide on the basis of the
Constitution of BiH and its context within the GFAP. In this regard the Court
is not convinced by the reference of the representative of the National
Assembly to the Award in the Breko arbitration. It is true that the
reasoning of the tribunal starts at para. 82 with the wording that preambular
language [i.e. to the GFAP], however, did not itself create a binding
obligation; ... . However, the argument goes on that the parties obligations
appear in the text of the GFAP, which modified
the 51:49 parameter (by including a slightly different distribution) and left
unresolved the territorial allocation in the Breko corridor area. That lack of
resolution is the reason for this arbitration. In short, the GFAP has
ratified neither continued RS control of the disputed area nor
territorial continuity for the RS. Seen from the context of the entire
argumentation that the commitment to certain Pre-Dayton Agreed Basic
Principles in the Preamble to the GFAP did not create specific obligations of
the parties since this was left to the arbitration according to Annex II, it
is therefore simply an overgeneralization of the party in this dispute before
the Constitutional Court to conclude that a Preamble or even the Preamble to
the GFAP has no normative force as such.
19. Contrary to the constitutions of many other countries, the Constitution
of BiH in Annex 4 of the Dayton Agreement is an integral part of an
international agreement. Therefore, Article 31 of the Vienna Convention of the
Law on Treaties -- providing for a general principle of international law which
is, according to Article III. 3. b. of the Constitution of BiH, an integral part
of the law of Bosnia and Herzegovina -- has to be applied for the interpretation
of all its provisions, including the Constitution of BiH. The relevant
provisions of this article read as follows:
"Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its preamble and
annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connexion with the conclusion of the
treaty;
(b) any instrument which was made by one or more
parties in connexion with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
.............."
According to the wording of paragraph 2 of that Article the
text which has to be interpreted includes the preamble and annexes. Hence, the
Preamble of the Constitution of BiH must be seen as an integral part of the
text of the Constitution.
20. The same holds true for the Preamble of the RS Constitution, but for
another reason since the text of the Preamble of the RS Constitution was
modified by Amendments XXVI and LIV (Official Gazette of the RS, No. 28/94 and
No. 21/96) whereby it was expressis verbis stated that these amendments form
an integral part of the Constitution of Republika Srpska...
21. It is, by the way, also a circular reference in the argumentation of the
representatives of the National Assembly of RS that the text of a preamble is
not an integral part of the respective constitution with the underlying
assumption that it has no normative character since it is separated from the
normative part of the constitution. The entire question is thus reduced to the
problem of the normative character of constitutional provisions as
such.
22. Already in Partial Decision I in the case, at para. 10 (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) the Constitutional Court held that its power of judicial review
does not depend on the number of contested provisions, nor that there is any
normative difference between provisions and fundamental principles of the
Constitution.
23. What is, however, the nature of constitutional principles to be found both
in the provisions of the preamble and the so-called normative part of a
constitution ? As the Canadian Supreme Court held in Reference re Secession of
Quebec [1998], 2.S.C.R. at paragraphs 49 through 54, these principles inform
and sustain the constitutional text: they are the vital unstated assumptions
upon which the text is based.... Although these underlying principles are not
explicitly made part of the Constitution by any written provision, other than
in some respects by the oblique reference in the preamble to the Constitution
Act, it would be impossible to conceive of our constitutional structure
without them. The principles dictate major elements of the architecture of the
Constitution itself and are as such its lifeblood. ... The principles assist
in the interpretation of the text and the delineation of spheres of
jurisdiction, the scope of rights and obligations, and the role of our
political institutions. Thus, the priniples are not merely descriptive, but
are also invested with a powerful normative force, and are binding upon both
courts and governments. And answering the rhetorical question what use the
Supreme Court may make of these underlying principles incorporated into the
Constitution by the preamble, the Court reaffirmed its position held in
Reference re Remuneration of Judges of the Provincial Court of Prince Edward
Island, [1997], 3. S. C. R. 3, at para. 95: As such, the preamble is not only
a key to construing the express provisions of the Constitution Act, but also
invites the use of those organizing principles to fill out gaps in the express
terms of the constitutional scheme. It is the means by which the underlying
logic of the Act can be given the force of law.
24. Finally, by referring to the principle of a promotion of a market economy
according to paragraph 4 of the Preamble to the Constitution of BiH, this
Constitutional Court also held in Partial Decision II in the case, at para. 13
(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. xx/00) that the Constitution of BiH contains basic
constitutional principles and goals for the functioning of Bosnia and
Herzegovina which must be seen as constitutional guidelines or limitations for
the exercise of the responsibilities of Bosnia and Herzegovina as well as the
Entities. Moreover, already in case 1/98 (Official Gazette of Bosnia and
Herzegovina, No. 22/98) the Court concluded from Article VI. 3. first sentence
of the Constitution of BiH -- that the Constitutional Court shall uphold this
Constitution -- the principle of effectivity of the entire text of the
Constitution which must apply therefore also to the Preamble. Hence, the
normative meaning of the Preamble of the Constitution of BiH cannot be reduced
to an auxiliary method in the interpretation of that very same
constitution.
25. In conclusion, it cannot be said thus in abstract terms that a preamble
has no normative character as such. This argument of the representatives of
the parties is therefore no sound argument to contest the responsibility of
the Constitutional Court to review the Entities´ constitutions in light of the
text of the Preamble of the Constitution of BiH.
26. Since any provision of an Entity s constitution has to be consistent with
the Constitution of BiH, including its Preamble, the provisions of the
Preamble are thus a legal basis for reviewing all normative acts lower in rank
than the Constitution of BiH as long as the aforesaid Preamble contains
constitutional principles delineating -- in the words of the Canadian Supreme
Court -- spheres of jurisdiction, the scope of rights or obligations, or the
role of the political institutions. The provisions of the preamble are then
not merely descriptive, but are also invested with a normative powerful force
thereby serving as a sound standard of judicial review for the Constitutional
Court. It has thus to be established in substance by the Constitutional
Court which specific rights or obligations follow from the constitutional
principles of the preambles of both the Constitution of BiH and the RS
Constitution.
27. The Constitutional Court observes that the Preamble of the RS
Constitution, as amended after the Dayton Agreement had been signed, refers to
the inalienable right of the Serb people to selfdetermination in order to
decide independently on its political and State status in paragraph 1, to
State independence in paragraph 2, to create its democratic State in paragraph
3 and to a democratic right, will and determination of the Serb people from
Republika Srpska ... to link its State completely and tightly with other
States of the Serb people in paragraph 5. Speaking in express terms of a right
of the Serb people and of state status and independence of RS, the Court
cannot see that the text of the Preamble of the RS Constitution is of a merely
descriptive character since these constitutional provisions in conjunction
with Article 1 of the RS Constitution obviously determine collective rights
and the political status of Republika Srpska.
28. Moreover with regard to the question, whether Entities can be called
states due to their sovereignty, as the expert of the National Assembly of RS
has outlined, the Court finds that the existence of a constitution, the name
of Republic , or citizenship are not >per se< proof of the existence of
statehood. Although it is quite often the case also in federal states that
their component entities do have a constitution, and that they might even be
called a republic or do grant citizenship, all these institutional elements
are granted or guaranteed by the Federal constitution. The same holds true for
Bosnia and Herzegovina.
29. Article I. 1 of the Constitution of BiH clearly establishes the fact that
only Bosnia and Herzegovina continues its legal existence under international
law as a state, with its internal structures modified as provided herein. In
consequence, Article I. 3 establishes two so-called Entities, the Federation
of Bosnia and Herzegovina and Republika Srpska as component parts of the state
of Bosnia and Herzegovina. And, as can be seen from Article III. 2. a of the
BiH Constitution for instance, the Entities are subject to the sovereignty of
Bosnia and Herzegovina. Despite examples of component units of Federal states
which are also called states themselves, in the case of Bosnia and Herzegovina
it is thus clear hat the BiH Constitution did not recognize Republika Srpska
and the Federation of Bosnia and Herzegovina as states , but called them
Entities instead.
30. Hence, contrary to the assertions of the representatives of the National
Assembly of RS, the Constitution of BiH does not give room for any sovereignty
of the Entities or a right to self-organization based on the idea of
territorial separation. Citizenship of the entities is thus granted by Article
I. 7 of the Constitution of BiH and is not proof of their sovereign statehood.
In the same way the governmental functions , according to Article III. 3. a)
of the Constitution of BiH, are thereby allocated either to the common
institutions or to the Entities so that their powers are in no way an
expression of their statehood, but are derived from this allocation of powers
through the Constitution of BiH.
31. The ideas of a collective right of self-organization so that decisions
taken at the level of the common institutions have to be administered only in
case they conform with the Entities interests do neither conform with the
legislative history nor the text of the Dayton Constitution. Moreover, the claim
of the expert of the National Assembly of BiH that the RS can be called a state
because of the historic national movement, of her nation with a uniform ethnic
basis forming an independent system of power must be taken as proof that the
challenged provisions of the Preamble of the RS Constitution, in connection with
the wording of Article 1, do aim at the independence of the RS . This can be
seen in particular also from the language of Item 8 of the Declaration on
Equality and Independence of Republika Srpska of the National Assembly of
Republika Srpska on 17 November 1997 (Official Gazette of Republika Srpska, No.
30/97):
"8. The National Assembly of Republika Srpska stresses
again its determination to contribute in every way, on the basis of the
Agreement on Special and Parallel Relations between the FR Yugoslavia
and Republika Srpska, to the strengthening of the relations of the Serb
people from the two sides of the river Drina, and to its final
union.
The National Assembly is hereby warning about the creation of
alliances of such forces in Republika Srpska and in Yugoslavia that are in
favor of the further dismembering of Yugoslavia and disintegration of
Republika Srpska, which never supported this Agreement, and which must be
identified by the people. Their goal is never to see Republika Srpska and
Yugoslavia united into one state, to leave the Serb people eternally
disunited and divided into regions of some kind, separated from the orthodox
religion and our traditional, spiritual and historic values. Their goal is to
assimilate Republika Srpska into a unitary BiH.
........... (Emphasis added)
The quotation of this paragraph in full length reveals the
obvious context of this passageof the Declaration of the National Assembly of
RS, namely the power-play between the two factions of the SDS at this time.
Nevertheless, this is an official act of the legislative organ of the RS
which, in particular through this indirect way, clearly reveals the intent of
the legislative body. It could be argued, of course, that this intent must be
seen in light of the power-play at that specific time. But this official act
of the National Assembly of RS, published in the Official Gazette of RS, was
never formally declared invalid nor renounced in any other way by the newly
elected assemblies until the decision of this Court and can therefore serve as
proof for the "intent" of the legislative body of the Republika Srpska with
which the text of the Preamble of the Constitution of RS must be
interpreted.
32. The Constitutional Court thus finds that all the references in the
provisions of the Preamble of the RS Constitution to sovereignty, independent
decision-making, a state status, state independence, the creation of a state
and to completely and tightly linking RS with other States of the Serb people
violate Article I. 1. in conjunction with 3., Article III. 2. a. and 5. of the
Constitution of BiH which provide for the sovereignty, territorial integrity,
political independence, and international personality of Bosnia and
Herzegovina so that it is not necessary for the Court in this context to
review the contested provisions of the Preamble of the RS Constitution in
light of the text of the Preamble of the Constitution of BiH, in particular
its paragraph referring to Bosniacs, Croats and Serbs as constituent
peoples.
33. The Constitutional Court thus declares paragraphs 1, 2, 3 and 5 of the
Preamble of the RS Constitution unconstitutional.
b) The challenged provision of Article 1 of the RS
Constitution in the wording of Amendment XLIV reads as follows:
"Republika Srpska shall be the State of the Serb people and
of all its citizens."
34. The applicant argues that the said provision is not in line with the last
paragraph of the Preamble of the BiH Constitution and with Article II. 4 and
Article II. 6 of the BiH Constitution. He claims that, according to the said
provisions of the BiH Constitution all the three peoples, namely Bosniacs,
Croats and Serbs, are constituent peoples on the whole territory of BiH.
Consequently, the RS could not be determined as a national state of only one
people - the Serb people. Moreover, today's functioning of the RS on that basis,
i.e. as a nationally exclusive power, would prevent the realization of the
fundamental rights of all expelled persons to return to their homes of origin in
order to restore the national structure of the population which had been
disturbed by war and ethnic cleansing.
Arguments
of the Parties relating to the question whether Bosniacs, Croats and Serbs have
to be considered constituent peoples also on the level of the
Entities:
Arguments
with regard to the unclear meaning of the term constituent people and the
legislative history:
35. With regard to the meaning of the signature of Annex 4 by the
representative of the Federation of BiH in the name of its constituent peoples
and citizens the expert of the applicant outlined that there was already the
Washington Agreement which had established the constituent status of Bosniacs
and Croats on the territory of the Federation. The formula given by the
declaration was a result of the wish to secure by this signature the legal
continuity of the constituent peoples from the Washington to the Dayton
Agreement.
36. The representative of the applicant further supported in the public
hearing the claim that all the three peoples must be constituent on the entire
territory of BiH with the fact that the statehood of BiH had always been
founded on the equality of peoples, religions, cultures and citizens which
traditionally live on this territory. Throughout the entire history of BiH
nationalist criteria had never been applied to organize the state structure,
nor had national territories been an element of the constitutional order.
According to the last census of 1991 a multi-ethnic society existed on the
entire territory of BiH.
37. The expert of the House of Peoples of the Federation Parliament outlined
in the public hearing that, in the arbitration process, the international
community certainly had the existence of three constituent peoples in mind and
that the constituent status was determined in the way it is written in the
respective constitutions. When drafting the Washington Agreement and the
Constitution of BiH there was no intention to define a third constituent
people in the Federation. If somebody wanted to establish the constituent
status of the three peoples in the Entities, already the name of the RS would
have been an obstacle.
38. The representative of the National Assembly of the RS stated in the public
hearing that it was of no use to discuss the constituent status insofar as it
was nowhere established in the normative part of the Constitution as a legal
principle or norm. He stressed that the right to collective equality which is
concluded from the term constituent people the applicant derives is nowhere
mentioned in the human rights documents.
39.
Furthermore he raised the objection that the last sentence of the Preamble
of the Constitution of BiH does not literally state that Bosniacs, Croats and
Serbs are constituent on the entire territory of BiH. By adding the wording on
the entire territory the meaning of the entire sentence was significantly
changed. In his opinion the constituent status of one or two peoples in one
Entity does not mean that they are not constituent in Bosnia and Herzegovina,
but quite the other way round: If a people is constituent in one of the
Entities, then it is constituent in Bosnia and Herzegovina also, insofar as
the Entities form the territory of BiH. However, nowhere in the Constitution
could a provision be found that all peoples are constituent in the
Entities.
40. Moreover, this could never be
the case if the adoption procedure of the Constitution of BiH was taken into
consideration as well as the process of creating the Entities as special
territorial units in the framework of BiH: The re-establishment of common state
structures, in his opinion, happened first between two constituent peoples, the
Bosniacs and the Croats who created the Federation of BiH by the Washington
Agreement of 1994 and whose Constitution explicitly mentions that only Bosniacs
and Croats are constituent in this community whereas Republika Srpska remained
apart until September 1995. She then participated in New York and Geneva as an
equal member when the basic principles on the future state community were
determined. On that occasion the existence of Republika Srpska was recognized by
the statement that she will continue to exist in conformity with today`s
Constitution under the condition of amendment with the stated principles. And
finally, it came to the Dayton Agreement which was concluded by representatives
of the former Bosnia and Herzegovina, the Federation of BiH and Republika
Srpska. It was signed on behalf of the Federation by the authorized person with
the formula that the Federation of BiH adopts the Constitution of BiH in Annex 4
of the General Agreement in the name of her constituent peoples and citizens. It
thus follows in the opinion of the expert of the National Assembly beyond doubt
that the Serb people is constituent only in the RS since they are not mentioned
in the Federation Constitution. Therefore the last sentence of the Preamble of
the Constitution of BiH means beyond doubt that Serbs, Bosniacs, Croats and
other citizens are constituent at the level of Bosnia and Herzegovina when they
decide on matters within the competence of the common institutions which had, by
consensus of the Entities, been allocated to them through the Constitution of
BiH, but not when they decide on original responsibilities of the Entities. It
would therefore be obvious that Bosniacs and Croats are not constituent in the
RS, whereas Serbs are not constituent in the Federation of BiH.
Arguments relating to the institutional structures of the
common institutions of BiH:
41. According to the written statement of the National
Assembly of the RS the Constitution of BiH itself determines the RS as the
electoral unit for the Serb member of the Presidency and for the five Serb
delegates to the House of Peoples of the Parliamentary Assembly of BiH. These
provisions guarantee the national equality of Serbs in relation to the other two
nations, whose representatives in the same bodies are elected from the
Federation of BiH and not from the RS.
42. In response to this statement the representatives of
the applicant and the House of Representatives of the Federation Parliament
pointed out that exactly those provisions of the BiH Constitution guarantee the
constituent status and thereby the equality of all the three peoples on the
entire territory of BiH since they are equally represented in those institutions
whose power is exercised on the entire territory of BiH. The electoral
mechanisms for these institutions were, however, of only a technical nature.
Arguments relating to the interpretation of the authentic
text of Article 1 of the RS Constitution:
43. The expert of the National Assembly raised the
objection in the public hearing that the text of Article 1 of the RS
Constitution neither defines the Serb people as constituent nor does it
determine that the RS is a national state of only the Serb nation, but that the
authentic text would read quite differently, namely the RS is the state of the
Serb people and all other [sic!] citizens . In contrast to the allegations of
the applicant, the text of the contested provision would thus have a different
meaning.
44. On the question whether the definition of Article 1
of the RS Constitution could be seen as a compromise formula in the conflict
between individual rights and group rights, the representative of the applicant
answered that the term konstitutivnost was broader than individual rights of
members of a people, but narrower than sovereignty. Sovereignty would require
exclusive power on a certain territory including the right to self-determination
and secession. According to the representative's view, however, it is impossible
to exercise the principle of territorialisation of sovereignty or the right to
secession in a multi-national community such as Bosnia, having regard in
particular to the high degree of balance and mixture of the national structures.
Consequently, the term konstitutivnost would rather guarantee collective
national rights and full national equality between the peoples.
Arguments relating to the function of the Dayton
Agreement:
45. The representative of the applicant outlined in the
public hearing that it is not a coincidence that the provision of the BiH
Constitution which follows upon the provision on the state structure of Bosnia
and Herzegovina (Article I) demands that Bosnia and Herzegovina and the Entities
ensure the highest level of internationally recognized human rights and
fundamental freedoms (Article II). Long- lasting stabilization in this region
was thus precisely built on respect for human rights and freedoms.
46. The representative of the House of Peoples of the
Federation Parliament repeated his objections as regards the admissibility of
the present request also in relation to the function of the Dayton Peace
Agreement. He stated that the review of the constitutions of the Federation of
BiH and of the RS would lead to a total revision of the Dayton Agreement. The
basic goal of the GFAP in its present form which has been accepted both by the
RS and the Federation of BiH is in fact to secure peace in this region. And he
concluded: The constituent status of all the three peoples in both Entities
would return Bosnia and Herzegovina into a position of 1991, when all the three
peoples had been constituent according to the former Constitution of BiH. It is
not necessary to repeat how this finished ... The applicant seems to forget what
has happened in BiH during the eight years which have passed since.
Arguments of the Parties relating to the question whether
Article 1 of the RS Constitution results in discrimination in the enjoyment of
individual rights :
47. In the public hearing the representatives of the
applicant further outlined that Article 1 distinguishes members of the Serb
people and citizens, thereby creating two distinct categories of persons. This
would lead to an automatic exclusion of non-Serb persons. Moreover, following
the privileged position of the Serb people according to Article 1, the RS
Constitution would then reserve certain rights for members of the Serb people
only, namely the right to self-determination, the cooperation with Serb people
outside the RS, the privileged position of the Orthodox Church and the exclusive
right to use the Serb language officially although the equality of languages in
the institutions of BiH would be a minimum standard so that everything below
this standard means discrimination. This fact and the ethnically uniform
executive power of the RS - for which Article 1 would provide the legal basis -
would prevent the return of expelled persons and the restoration of property as
well as the restoration of a multi-ethnic society. In particular the return of
refugees is seen by the representatives of the applicant not only as an
individual right, but also as an essential element of the constitutional order
with the goal to re-establish the multi-ethnic composition of the population
according to the census of 1991 before the war started.
48. The representatives of the National Assembly of the
RS argued in the public hearing that individual equality is guaranteed by a
number of provisions of the RS Constitution such as Articles 10, 16, 19, 33, 34,
45 and 48 and, with particular regard to Article II. 6 of the BiH Constitution,
that Article 1 of the RS Constitution would certainly not prohibit the enjoyment
of human rights as required by the quoted Article of the BiH Constitution. In
conclusion, no provision of the RS Constitution would prevent any non-Serb
citizen from enjoying all his rights equally nor would there be any provision
preventing a non-Serb from holding a public office on the ground of national
origin.
49. Furthermore, the representatives of the National
Assembly of the RS reminded the parties of the text of Article 1 of the RS
Constitution arguing that exactly the compromise formula would ensure that every
non-Serb is equal and that in actual fact also non-Serb persons can participate
in the executive power. As far as the return of refugees is concerned the expert
of the National Assembly outlined that the entire history of the RS has to be
taken into account and that the return of refugees is a much more complex
problem, including the social and economic conditions, so that this problem
could not be reduced to a question of discrimination against citizens of
non-Serb origin.
The Constitutional
Court finds:
50. As far as
the ordinary meaning (Article 31, para.1 of the Vienna Convention of the Law on
Treaties) of the term constituent people is concerned the Court finds it
established - as outlined by the representatives of the National Assembly of RS
- that there is neither a definition of the term constituent peoples under the
BiH Constitution nor that the Preamble's last sentence expressis verbis includes
the phrase on the entire territory.
51. However, with regard to the question elaborated by
the Court supra (at para. 23 to 26) whether the last line of the Preamble, in
particular the designation of Bosniacs, Croats and Serbs, as constituent peoples
(along with Others), contains a constitutional principle in conjunction with
other provisions which might serve as a standard of review, the Court finds:
52. However vague the language of the Preamble of the
Constitution of BiH may be because of this lack of a definition of the status of
Bosniacs, Croats, and Serbs as constituent peoples, it clearly designates all of
them as constituent peoples, i. e. as peoples. Moreover, Article II. 4. of the
Constitution prohibits discrimination on any ground such as, inter alia,
association with a national minority and presupposes thereby the existence of
groups conceived as national minorities.
53. Taken in connection with Article I of the
Constitution, the text of the Constitution of BiH thus clearly distinguishes
constituent peoples from national minorities with the intention to affirm the
continuity of Bosnia and Herzegovina as a democratic multi-national state which
remained, by the way, undisputed by the parties. The question thus raised in
terms of constitutional law and doctrine is what concept of a multi-national
state is pursued by the Constitution of BiH in the context of the entire GFAP
and, in particular, whether the Dayton Agreement with its territorial
delimitation through the establishment of the two Entities also recognized a
territorial separation of the constituent peoples as argued by the RS
representatives ?
54. First, Article I. 2. of the Constitution of BiH
determines that Bosnia and Herzegovina shall be a democratic state which is
further specified then by the commitment in paragraph 3 of the Preamble that
democratic governmental institutions and fair procedures best produce peaceful
relations within a pluralist society. This constitutional commitment, legally
binding for all public authorities, cannot be isolated from other elements of
the Constitution, in particular the ethnic structures, and must therefore be
interpreted by reference to the structure of the Constitution as a whole (see,
Canadian Supreme Court Reference re Secession of Quebec [1998], 2.S.C.R., at
para 50). Therefore, the elements of a democratic state and society and the underlying assumptions --
pluralism, fair procedures, peaceful relations following from the text of the
Constitution -- must serve as a guideline to further elaborate the question as
to how BiH is construed as a democratic multi-national state.
55. It is not by chance, that the Canadian Supreme Court
outlined in re Secession of Quebec, [1998], 2.S.C.R., at para. 64 that the Court
must be guided by the values and principles essential to a free and democratic
society which embodies, inter alia, respect for the inherent dignity of the
human person, accommodation of a wide variety of beliefs, respect for cultural
and group identity, and faith in social and political institutions which enhance
the participation of individuals and groups in society. Moreover, it is a
generally recognized principle to be derived from the list of international
instruments in Annex I to the Constitution of BiH that a government must
represent the whole people belonging to the territory without distinction of any
kind thereby prohibiting -- in particular according to Article 15 of the
Framework Convention on the Protection of National Minorities which is
incorporated into the Constitution of BiH through Annex I -- a more or less
complete blockage of its effective participation in decision-making processes.
Since effective participation of ethnic groups is an important element of
democratic institutional structures in a multi-national state, democratic
decision-making would be transformed into ethnic domination of one ore even more
groups if, for instance, absolute and/or unlimited veto-power would be granted
to them thereby enabling a numerical minority represented in governmental
institutions to enforce its will on the majority forever.
56. In conclusion, it follows from established
constitutional doctrine of democratic states that democratic government requires
-- beside effective participation without any form of discrimination --
compromise. It must be concluded thus under the circumstances of a
multi-national state, that representation and participation in governmental
structures -- not only as a right of individuals belonging to certain ethnic
groups, but also of ethnic groups as such in terms of collective rights -- does
not violate the underlying assumptions of a democratic state.
57. Moreover, it must be concluded from the texts and
underlying spirit of the International Convention on the Elimination of All
Forms of Racial Discrimination, the European Charter for Regional and Minority
Languages and the Framework Convention for the Protection of National Minorities
that not only in national states, but also in the context of a multi-national
state such as BiH the accommodation of cultures and ethnic groups prohibits not
only their assimilation but also their segregation. Thus, segregation is, in
principle, not a legitimate aim in a democratic society. It is no question therefore
that ethnic separation through territorial delimitation does not meet the
standards of a democratic state and pluralist society as determined by Article
I. 2. of the Constitution of BiH in conjunction with paragraph three of the
Preamble. Territorial delimitation thus must not serve as an instrument of
ethnic segregation, but - quite contrary - must provide for ethnic accomodation
through preserving linguistic pluralism and peace in order to contribute to the
integration of state and society as such.
58. The differentiation of collective equality as a legal
notion and a minority position as a matter of fact is also reflected in the
explanatory report of the European Charter of Regional and Minority Languages
which has to be applied in BiH according to Annex I of the Constitution of BiH.
Although Article 1 of the Charter clearly distinguishes official languages from
minority languages, the explanatory report under the heading of Basic concepts
and approaches outlines at para. 18 that the term minority refers to situations
in which the language is spoken either by persons who are not concentrated on a
specific part of the territory of a state or by a group of persons, which,
though concentrated on part of the territory of the state, is numerically
smaller than the population in this region which speaks the majority language of
the state: Both adjectives therefore refer to factual criteria and not to legal
notions.
59. Even if
constituent peoples are, in actual fact, in a majority or minority position in
the Entities, the express recognition of Bosniacs, Croats and Serbs as
constituent peoples by the Constitution of BiH can only have the meaning that
none of them is constitutionally recognized as a majority, or, in other words,
that they enjoy equality as groups. It must thus be concluded in the same way as
the Swiss Supreme Court derived from the recognition of the national languages
an obligation of the Cantons not to suppress these language groups that the
recognition of constituent peoples and its underlying constitutional principle
of collective equality poses an obligation on the Entities not to discriminate
in particular against these constituent peoples which are, in actual fact, in a
minority position in the respective Entity. Hence, there is not only a clear
constitutional obligation not to violate individual rights in a discriminatory
manner which obviously follows from Article II. 3. and 4. of the Constitution of
BiH, but also a constitutional obligation of non-discrimination in terms of a
group right if, for instance, one or two of the constituent peoples are given
special preferential treatment through the legal system of the Entities.
60. In conclusion, the
constitutional principle of collective equality of constituent peoples following
from the designation of Bosniacs, Croats and Serbs as constituent peoples
prohibits any special privilege for one or two of these peoples, any domination
in governmental structures or any ethnic homogenization through segregation
based on territorial separation.
61. It is beyond doubt that the Federation of Bosnia and
Herzegovina and Republika Srpska were -- in the words of the Dayton Agreement on
Implementing the Federation, signed in Dayton 10 November 1995 -- recognized as
constituent Entities of Bosnia and Herzegovina by the GFAP, in particular
through Article I. 3. of the Constitution. But this recognition does not give
them a carte blanche ! Hence, despite the territorial delimitation of Bosnia and
Herzegovina by the establishment of the two Entities, this territorial
delimitation cannot serve as a constitutional legitimation for ethnic
domination, national homogenization or a right to uphold the effects of ethnic
cleansing.
62. Moreover,
contrary to the arguments of the representatives of the National Assembly of RS
and the House of Peoples of the Federation, the legislative history and the text
of the Dayton Constitution obviously show that the then existing constitutions
of the Entities had not been accepted as such without considering the necessity
of amendments. It was stated in the Agreed Basic Principles of Geneva, 8
September 1995, under paragraph 2. sub-paragraph 2 that Each entity will
continue to exist under its present constitution , however, as amended to
accommodate these basic principles. And this principle was further elaborated in
the constitutional system of Dayton by the supremacy clause of Article III. 3.
(b) - according to which the Entities and any subdivisions thereof shall comply
fully with this Constitution, which supersedes inconsistent provisions of the
law of Bosnia and Herzegovina and of the constitutions and law of the
Entities,... - as well as the obligation of the Entities according to Article
XII paragraph 2 that Within three months from the entry into force of this
Constitution, the Entities shall amend their respective constitutions to ensure
their conformity with this Constitution in accordance with Article III (3)
(b).
63. Moreover, insofar as
the term constituent peoples was inserted into the draft text of the Dayton
Constitution only at a later stage of the negotiations, it must thus be
concluded that the adopters of the Dayton Constitution would not have designated
Bosniacs, Croats and Serbs as constituent peoples in marked contrast to the
constitutional category of a national minority if they wanted to leave them in
such a minority position in the respective Entities as they had, in fact,
obviously been placed in at the time of the conclusion of the Dayton Agreement
as can be seen from the figures presented below. Had the adopters of the
Constitution recognized this fact they would not have inserted their designation
as constituent peoples with the underlying assumption of their collective
equality or they would have omitted the phrase of constituent peoples altogether
insofar as the provisions on the ethnic composition of the common institutions
of BiH refer to Bosniacs, Croats and Serbs directly and do not need an
additional designation as constituent peoples. Again this designation in the
Preamble must thus be seen as an overarching principle of the Constitution of
BiH with which the Entities, according to Article III. 3. b. of the Constitution
of BiH, have fully to comply.
64. With regard to the
institutional structures of the common institutions of BiH the Court
does not share the arguments of the representatives of the National Assembly of
RS and the House of Peoples of the Federation that the provisions of the BiH
Constitution concerning the composition of the two Houses of the Parliamentary
Assembly of BiH, the Presidency, the Council of Ministers and the Constitutional
Court as well as the respective electoral mechanisms allow for the generalizing
conclusion that these representation mechanisms mirror the territorial
separation of the constituent peoples in the Entities.
65. A strict identification of territory and certain
ethnically defined members of common institutions in order to represent certain
constituent peoples is not even true for the rules on the Presidency composition
as laid down in Article V, first paragraph: The Presidency of Bosnia and
Herzegovina shall consist of three Members: one Bosniac and one Croat, each
directly elected from the territory of the Federation, and one Serb directly
elected from the territory of Republika Srpska. One must not forget that the
Serb member of the Presidency, for instance, is not only elected by voters of
Serb ethnic origin, but by all citizens of Republika Srpska with or without a
specific ethnic affiliation. He thus represents neither Republika Srpska as an
entity nor the Serb people only, but all the citizens of the electoral unit
Republika Srpska. And the same is true for the Bosniac and Croat Members to be
elected from the Federation.
66. In a similar, but in no way identical, manner
Article IV. 1 of the Constitution of BiH provides that the House of Peoples
shall comprise 15 Delegates, two-thirds from the Federation (including five
Croats and five Bosniacs) and one-third from Republika Srpska (five Serbs) to be
selected (sic!), according to sub-paragraph (a), by the Croat and Bosniac
Delegates to the House of Peoples of the Federation, whereas the Delegates from
Republika Srpska shall be selected by the National Assembly of Republika Srpska.
Apart from the difference that they shall be selected by the respective
parliamentary bodies of the Entities and not directly elected like the members
of the Presidency of BiH by popular vote, the Court finds it a striking
difference that the Serb Delegates shall be selected by the National Assembly as
such without any differentiation along ethnic lines. This provision therefore
includes a constitutional guarantee that non-Serb Members of the National
Assembly have the same right as the Serb Members to participate in the selection
of the five Serb Delegates to the House of Peoples of BiH. Hence, there is no
strict uniform model of ethnic representation underlying these provisions of the
BiH Constitution. Had this been the intent of the framers of the Constitution,
they would not have regulated these selection processes differently.
67. The same conclusions can be drawn from the
composition of the House of Representatives of BiH. Again two-thirds of the 42
Members shall be elected this time from the territory of the Federation,
one-third from the territory of Republika Srpska. However, these provisions do
not prescribe the ethnicity of the candidates and, in actual fact, Bosniac
Members were elected from the territory of the RS and Serb Members from the
territory of the Federation in the last general election in 1998. Insofar as a
certain number of Ministers shall be appointed from the territory of the
Federation or the RS according to Article V. 4. b), whereas certain numbers of
members of the Constitutional Court have to be elected by the respective
parliamentary bodies of the entities according to Article VI. 1. a), all these
provisions show nothing else but the fact that either the territory or specific
institutions of the entities serve as legal point of reference for the selection
of the members of the institutions. This is again obvious for the Ministers who
are finally elected by the House of Representatives of BiH which certainly does
not represent one, two or even all of the three constituent peoples only, but
all the citizens of BiH regardless of their national origin.
68. Moreover, no provision of the Constitution allows
for the conclusion that these special rights for the representation and
participation of the constituent peoples in the institutions of BiH can be
applied also for other institutions or procedures. Quite on the contrary,
insofar as these special collective rights might violate the non-discrimination
provisions as will be shown below, they are legitimized only by their
constitutional rank and therefore have to be narrowly construed. In particular,
it cannot be concluded that the BiH Constitution provides for a general
institutional model which could be transferred to the Entity level or that
similar ethnically defined institutional structures on Entity level need not
meet the overall binding non-discrimination standard according to Article II. 4
of the Constitution of BiH or the constitutional principle of collective
equality of constituent peoples.
69. Of course, it cannot be denied on the basis of this
analysis of the institutional structures of the common institutions of BiH that
all the three constituent peoples are, in somewhat different ways, given special
collective rights as far as their representation and participation in the
institutions of BiH are concerned. In the final analysis, however, there is
certainly no specific model of ethnic representation underlying the provisions
on the composition of the institutions and the respective electoral mechanisms
which would allow for the generalizing conclusion that the Constitution of BiH
represents a territorial apportionment of constituent peoples on entity level by
regulating the composition of the common institutions of BiH. Hence, this
institutional system certainly does not prove or give a constitutional basis for
upholding the territorial apportionment of the constituent peoples on Entity
level.
70. With regard to the
authentic text of Article 1 of the RS Constitution, the representatives
of the National Assembly of RS correctly outlined that this provision neither
calls the Serb people a constituent people nor defines the RS as a national
state of the Serb people only. The Court finds that it contains indeed a
compromise formula calling the RS a >state< of the Serb people and all its
citizens - not other (sic!) citizens as the representative had outlined in the
public hearing, this lapsus linguae being revealing enough of the spirit
underlying the contested provision - thereby using a mix of the ethnic and
non-ethnic principle for the legitimation of exercising the governmental powers
and functions of the Entity. Furthermore, it is true that the RS Constitution
does not prima facie provide for any ethnic
distinction in the composition of the governmental bodies so that the compromise
formula of Article 1 in connection with this institutional structure might allow
for the equal representation of all citizens.
71. This conclusion, however, starts from a wrong point
of comparison insofar as equality of groups is not the same as equality of
individuals through non-discrimination. Equality of the three constituent
peoples requires equality of the groups as such whereas the mix of the ethnic
principle with the non-ethnic principle of citoyenneté in the compromise formula
should avoid that special collective rights violate individual rights by
definition. It thus follows that individual non-discrimination does not
substitute equality of groups. Quite on the contrary, the regulations of Article
1 of the RS Constitution, in particular in connection with other provisions such
as the rules on the official language,
according to Article 7 of the RS Constitution and Article 28 paragraph 3 which
declares the Serb Orthodox Church the Church of the Serb people --thereby
creating a constitutional formula of identification of Serb state , people and
church -- put the Serb people into a privileged position which cannot be
legitimized since the Serb people are neither on the level of Republika Srpska
nor on the level of Bosnia and Herzegovina in the factual position of an
endangered minority which has to preserve its existence. The privileged position
of the Serb people under Article 1, therefore, violates the express designation
of constituent peoples made by the BiH Constitution as already outlined above
(see supra at para 52).
72. With regard to the
functional interpretation of the Constitution of BiH, the Court does
not share the views presented by the National Assembly and the House of Peoples
representatives that reviewing the Entities´ constitutions as requested by the
applicant would lead to a revision of the Dayton Peace Agreement and of the
status quo of the then existing Federation and RS in order to keep peace on
these territories. The Court has already pointed out that the Entities
constitution had not been accepted as such by the Parties to the Agreement (see
paragraphs 61 and 62).
73. Indeed, from the functional point of view, the
Dayton Constitution is part of a peace agreement as the name General Framework
Agreement on Peace in Bosnia and Herzegovina clearly indicates. Thus, as can be
seen already from the wording of Article VII of the GFAP and the Preamble, alina
1 to 3 of the BiH Constitution peaceful relations are best produced in a
pluralist society on the basis of the enjoyment of human rights and freedoms
and, in particular, through the freedom of all refugees and displaced persons to
return to their homes of origin as guaranteed by Article II. 5. of the
Constitution of BiH. Moreover, this provision explicitly refers also to Annex 7
which in its Article I expressis verbis states that the early return of refugees
and displaced persons is an important objective of the settlement of the
conflict in Bosnia and Herzegovina. It thus follows from the context of all
these provisions that it is an overall objective of the Dayton Peace Agreement
to provide for the return of refugees and displaced persons to their homes of
origin and thereby to reestablish the multi-ethnic society which had existed
before the war without any territorial separation with ethnic inclination.
74. In the
final analysis, based on the text of the Preamble in connection with the
institutional provisions of the Dayton Constitution, regarding the legislative
history and taking the functions of the entire GFAP of which the Constitution is
a part - into due account, the Constitutional Court finds that the provision of
Article 1 of Republika Srpska Constitution violates the constitutional status of
Bosniacs and Croats designated to them through the last line of the Preamble and
the positive obligations of the RS which follow from Article II. 3. m. and II.
5. of the Constitution of BiH.
75. It would thus not be necessary for the
Constitutional Court to pursue the allegation of the applicant that Article 1 of
the Constitution of RS is also discriminatory by providing the constitutional
basis for the violation of individual rights in a discriminatory manner as
prohibited by Article II. 4. of the Constitution of BiH. However, insofar as the
request of the applicant is not only concerned about the collective equality of
the constituent peoples, but also with the discrimination against individuals,
in particular against refugees and displaced persons regardless of their ethnic
origin, the Court will review Article 1 of the RS Constitution also in light of
this allegation of the applicant.
76. Hence, the Court will, first of all, elaborate the
standard of review in more detail.
77. The language of Article II. 4 of the Constitution of
BiH obviously follows the text of Article 14 of the ECHR with an adaptation
insofar as the list of rights and freedoms whose enjoyment shall be secured is
concerned: The enjoyment of the rights and freedoms provided for in this Article
or in the international agreements listed in Annex I to this Constitution shall
be secured to all persons in Bosnia and Herzegovina without discrimination 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.
78. As follows from this text, this list includes both the
rights and freedoms provided for in Article II itself and those in the
international agreements listed in Annex I to the Constitution. Hence, these are
the rights and freedoms set forth in the European Convention for the Protection
of Human Rights and Fundamental Freedoms and its Protocols as follows from the
reference in paragraph 3, including the rights enumerated in the same paragraph.
Moreover, paragraph 5 of Article II includes particular individual rights for
all refugees and displaced persons freely to return to their homes of origin and
to have restored to them property of which they were deprived in the course of
hostilities since 1991. These individual rights provided for in paragraph 5 are,
however, not different or additional rights, but a special affirmation of the
right to property, the right to liberty of movement and residence and the right
not to be subjected to inhuman or degrading treatment already enumerated in
paragraph 2 of Article II. of the Constitution of BiH.
79. Moreover,
as follows from the reference in Article II. 5 to Annex 7 of the General
Framework Agreement, its further elaboration of the criteria of the
non-discrimination rule has to be taken into account. In particular its Article
I. 3. (a) regulates that the parties, i.e. also the Entities, have to repeal all
legislation and administrative practices with discriminatory intent or effect.
How is it possible thus to show discriminatory intent or effect ? There are, of
course, several ways the following of which have certainly to be pursued:
a) the law discriminates on its face, i.e., by its
explicit terms using the criteria such as language, religion, political or other
opinion, national origin, association with a national minority or any other
status for the classification of categories of people which will then be treated
differently on that basis. However, it would lead to obviously absurd results if
every difference on those grounds were prohibited. There are situations and
problems which, on account of differences inherent therein, call for different
legal solutions; moreover, certain legal inequalities are sometimes needed to
correct factual inequalities. Hence, the European Court of Human Rights
elaborated as standard of interpretation that the principle of equality of
treatment is violated if the distinction has no reasonable justification. The
existence of such a justification must be assessed in relation to the aim and
effects of the measure under consideration. Hence, a difference of treatment in
the exercise of a right must not only pursue a legitimate aim with regard to the
principles which normally prevail in democratic societies. The
non-discrimination provision is likewise violated when it is clearly established
that there is no reasonable relationship of proportionality between the means
employed and the aim sought to be realized. The proportionality principle thus
requires four steps of consideration: whether there is a reasonable public aim,
whether the means employed can achieve the legitimate goal, whether the means
are necessary, i. e. the least burdensome means to achieve the goal, and,
finally, whether the burdens imposed are proportional in comparison to the
intensity of the aim.
b) the law, although neutral on its face, is
administered in a discriminatory way;
c) the law, although it is neutral on its face and is
applied in accordance with its terms, was enacted with a purpose of
discriminating, as shown by the law`s legislative history, statements made by
legislators, the law`s disparate impact, or other circumstantial evidence of
intent;
d) the effects of past de jure discrimination are upheld
by the respective public authorities on all state levels, not only by their
actions but also through their inaction.
80. The last rule obviously shows that the
non-discrimination provision is not restricted to a strictly >negative<
individual right not to be discriminated against by the public authorities, but
also includes >positive< obligations to take action. That this is a
particular responsibility of the Entities can already be seen from Article III.
2. (c) of the Constitution which rules that the Entities shall provide a safe
and secure environment for all persons in their respective jurisdictions, by
maintaining civilian law enforcement agencies operating in accordance with
internationally recognized standards and with respect for the internationally
recognized human rights and fundamental freedoms referred to in Article II
above, and by taking such other measures as appropriate. And with particular
intent to provide for the creation of suitable conditions for the return of
refugees and displaced persons Article II. 1. of Annex 7 poses the obligation on
the parties to undertake to 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. The list of measures, enumerated in Article I. 3. (a), then
specifies this general positive obligation including not only the repeal of
domestic legislation and administrative practices with discriminatory intent or
effect, as already quoted above, but also the protection of ethnic and/or
minority populations against acts of retribution by public officials as well as
private individuals.
81. In the
final analysis, all public authorities in BiH have not only to refrain from any
act of discrimination in the enjoyment of the individual rights and freedoms
referred to, in particular on the ground of national origin, but also a positive
obligation to protect against discriminatory acts of private individuals and,
with regard to refugees and displaced persons, to create the necessary
political, social and economic conditions for their harmonious
reintegration.
In light of these standards the Court
finds:
82. It is true that the RS Constitution contains a
number of specific provisions which provide for the prohibition against
discrimination in the enjoyment of those individual rights of the RS
Constitution as are quoted by the representatives of the National Assembly of
RS. Although this must be seen as a necessary requirement, the proclamation of
non-discrimination is, however, in light of the above elaborated criteria of
review by no means sufficient. Moreover, these non-discrimination provisions
related to the list of rights of the RS Constitution cannot per se guarantee the
effective enjoyment of the rights listed in the Constitution of BiH, the ECHR,
or the international instruments listed in Annex 1 to the Constitution of
BiH.
83. With regard to the first standard of review - that
Article 1 must not discriminate on its face by using national origin for the
classification of different categories of persons which will then be treated
differently without reasonable justification - the Court cannot follow the
allegations of the representatives of the applicant that the wording of Article
1 would lead to an automatic exclusion of persons of non-Serb origin. It is the
very nature of the compromise of the ethnic and non-ethnic principle for the
legitimation of the exercise of >state<-power that this formula of Article
1 does not create two distinct, mutually exclusive categories of persons. A
contrary interpretation would lead to the obviously absurd result that in
particular members of the Serb people would >ex constitutione< not be
citizens of the RS.
84. Nevertheless, the first element of the provision --
Republika Srpska shall be the state of the Serb people -- must trigger strict
scrutiny with regard to the other standards of review. Hence, does this
provision provide the constitutional basis for discriminatory legislation,
discriminatory administrative or judicial practice of the authorities? Is there
other circumstantial evidence such as the comparison of population figures or
the numbers of returns which shows such a disparate impact as to indicate that
the effects of past de jure discrimination, in particular of ethnic cleansing,
are upheld by the authorities or that they violate their obligation to provide
for protection also against violence of private individuals and to create the
respective political, economic, and social conditions conducive to the voluntary
return and harmonious reintegration of refugees and displaced persons, without
preference for any particular group ?
85. With regard to the factual situation in the RS, the
Constitutional Court could, according to Article 22 of its Rules of Procedure,
ascertain the following facts:
86. As far as population figures are concerned, the
number of Bosniacs, Croats, Serbs and others living on the territory of the RS
is as follows:
Ethnic Breakdown of the Population on
Republika Srpska territory according to 1991 Census in comparison with 1997
(Source, IMG, on the basis of the 1991 census and UNHCR estimates for 1997).
| |
1991
|
1997
|
|
Serbs
|
54.30 %
|
96.79 %
|
|
Bosniacs
|
28.77 %
|
2.19 %
|
|
Croats
|
9.39 %
|
1.02 %
|
|
Others
|
7.53 %
|
0.00 %
|
87. As can be seen from these figures, the ethnic
composition of the population living on the territory of the RS dramatically
changed since 1991. Had the Serb population made up a small absolute majority in
1991 as far as the statistics for a hypothetical territory of RS are concerned,
they did not live territorially concentrated. The territory where the RS was
established later under the GFAP did form an area with mixed population as this
was the case all over the territory of the former Republic of Bosnia and
Herzegovina. Due to massive ethnic cleansing in the course of the war prior to
the conclusion of the Dayton Agreement, the population figures of 1997 show that
the RS is now an ethnically almost homogeneous entity. As the figures for the
regions in the Eastern part of the RS show, the attribute almost can be dropped.
With the exception of Srpski Brod and Trebinje all municipalities had a record
of 99% and more of Serb population in 1997.
88. The conclusion from these figures is supported by a
comparison of the figures for the overall return of refugees and displaced
persons to the RS with those of the so-called minority -return. By 31 January
1999 (UNHCR, Statistics Package of 1 March 1999) in sum 97,966 refugees and
displaced persons had returned to the RS. The ethnic breakdown of this figure
again reveals that only 751 Croats and 9,212 Bosniacs had returned in comparison
to 88.003 Serbs. Hence, the so-called minority -return amounted to 10.17% of the
small percentage of those who had returned at all.
89. Contrary to the allegations of the representatives of
the RS National Assembly that problems with the return of refugees and displaced
persons could not be reduced to discriminatory patterns vis-a-vis citizens of
non-Serb origin, but would be much more complex including the social and
economic conditions, this comparison obviously demonstrates that such a
tremendous discrepancy according to the ethnic origin of refugees and displaced
persons cannot be explained by the overall severe economic and social conditions
which are the same for all persons willing to return to the RS. Such a
discrepancy can thus only be explained by the ethnic origin of refugees and
displaced persons and provides a clear proof of differential treatment vis-a-vis
refugees and displaced persons solely on the ground
of ethnic origin.
90. These
figures thus provide sufficient evidence of a discriminatory effect in the sense
of Article I. 3. a) of Annex 7 so that the results of past de jure
discrimination through ethnic cleansing are upheld in the RS.
91. Moreover, there is also clear evidence that the
discriminatory pattern to be seen from this circumstantial evidence can
reasonably be linked with the institutional structures of RS authorities and
their discriminatory practice.
92. First of all, despite the fact that about 25% of the
members of Republika Srpska National Assembly are non-Serbs, the ethnic
composition of the RS Government is ethnically homogeneous: All the 21 ministers
including the Prime Minister are of Serb origin (Source: Ministry for Civilian
Affairs and Communications of BiH). The same is true .for the ethnic composition
of the RS police forces and the judiciary composed of judges and public
prosecutors as can be seen from the following chart (Source: IPTF with figures
of 17 January 1999 made available to the Court).
| |
Serbs
|
Bosniacs
|
Croats
|
|
Judges and
Public Prosecutors
|
97.6%
|
1.6%
|
0.8%
|
|
Police
forces
|
93.7%
|
5.3%
|
1.0%
|
93. As far as the number of judges and prosecutors is
concerned, all nine persons comprising the number of Bosniacs and Croats out of a total of
375 were located in Breko and installed only under the supervisory regime of the
international community. Moreover, as can be seen from para. 84 of the Breko
Arbitration Award of 1997, the Tribunal concluded from the RS Basic General Principles the fairly
obvious purpose -- and the result -- ... to keep Breko an `ethnically pure´ Serb
community in plain violation of Dayton's peace plan.
94. Finally, after numerous reports of the OHR, the ICG,
the Human Rights Ombudsperson for BiH etc on numerous incidents in the RS, the
Human Rights Ombudsperson for BiH stated in her Special Report, No. 3275/99 On
Discrimination in the Effective Protection of Human Rights of Returnees in Both
Entities of Bosnia and Herzegovina as of 29 September 1999 that return related
incidents at issue and the passive attitude of the police and other competent
authorities were predicated solely on the basis of the national origin of those
affected. She thus finally concluded that returnees have been discriminated
against on the ground of their national origin in the enjoyment of their rights
guaranteed by Articles 3 and 8 of the Convention, Article 1 of Protocol No. 1 to
the Convention and equality before the law and equal protection before the law
as provided in Article 26 of the International Covenant on Civil and Political
Rights (ICCPR).
95. In conclusion the Court finds that, after the
Dayton-Agreement came into force, there was and is systematic, long-lasting,
purposeful discriminatory practice of the public authorities of RS in order to
prevent so-called >minority< returns either through direct participation
in violent incidents or by abstaining from the obligation to protect people
against harassment, intimidation or violent attacks solely on the ground of
ethnic origin, let alone the failure to create the necessary political, economic
and social conditions conducive to the voluntary return and harmonious
reintegration which follows from the right of all refugees and displaced persons
freely to return to their homes of origin according to Article II. 5 of the
Constitution of BiH. Moreover, the ethnically almost homogeneous executive and
judicial power of the RS is a clear indicator that this part of the provision of
Article 1 with the wording the RS is the state of the Serb people has to be
taken literally and provides the necessary link with the purposeful
discriminatory practice of the authorities with the effect of upholding the
results of past ethnic cleansing. Finally, also the remark of the expert of the
National Assembly in the public hearing that the RS can be called a state
because her statehood is the expression of her original, united, historical
national movement, of her nation which has a united
ethnic basis and forms an independent system of power (emphasis added) gives
evidence of the discriminatory intent of Article 1 of the RS Constitution, in
particular if seen in connection with its Preamble.
96. However, ethnic segregation can never be a
>legitimate aim< with regard to the principles of democratic societies as
required by the European Human Rights Convention and the Constitution of BiH.
Nor can ethnic segregation or, the other way round, ethnic homogeneity based on
territorial separation serve as a means to uphold peace on these territories -
as asserted by the representative of the National Assembly - in light of the
express wording of the text of the Constitution that democratic governmental
institutions and fair procedures best produce peaceful relations within a
pluralist society.
97. It thus follows also from the totality of these
circumstances that the wording of Article 1 of the RS Constitution as quoted
above violates the right to liberty of movement and residence, the right to
property and the freedom of religion in a discriminatory way on the grounds of
national origin and religion as guaranteed by Article II. paragraphs 3 and 4 in
connection with paragraph 5 of the Constitution of BiH.
98. The Constitutional Court thus finds the wording
State of the Serb people and in Article 1 of the RS Constitution
unconstitutional.
B. Federation
Constitution
a) The challenged provision of Article I. 1 (1) in the wording of Amendment III of the
Federation Constitution reads as follows:
"Bosniacs and
Croats as constituent peoples together with others, and the citizens of Bosnia
and Herzegovina from the territory of the Federation of Bosnia and Herzegovina,
in exercising their sovereign rights, transform the internal structure of the
territory of the Federation of Bosnia and Herzegovina, defined by Annex II of
the General Framework Agreement, so that the Federation of Bosnia and
Herzegovina consists of federal entities with equal rights and
responsibilities."
99. The applicant considers that the provision of
Article I. 1. (1) of the Constitution of the Federation of Bosnia and
Herzegovina according to which Bosniacs and Croats are constituent peoples of
the Federation is not in conformity with the last paragraph of the Preamble of
the Constitution of BiH nor with its Article II. 4. and 6. insofar as pursuant
to these provisions all the three peoples, Bosniacs, Croats and Serbs, are
constituent peoples on the entire territory of BiH. Therefore, the Federation
Constitution could not designate only Bosniacs and Croats as constituent
peoples. Moreover, the contested provision would prevent the realization of the
fundamental rights of all refugees and displaced persons to return to their
homes of origin in order to restore the ethnic structure of the population which
had been disturbed by war and ethnic cleansing.
100. The arguments of the parties with regard to the
legislative history of both the Washington Agreement and the Dayton Agreement,
the conclusions that could be drawn from the institutional structures of the
common institutions of BiH and the functional interpretation of the Dayton
Agreement were already outlined above in connection with the contested provision
of Article 1 of the Constitution of the RS (see paragraphs 35 to 46 supra). It
remains to set out the arguments with specific reference to the text of Article
I. 1. (1) of the Federation Constitution.
101. Hence, in the public hearing the representative of
the applicant required the constituent status of all the three peoples also in
the Federation of BiH and full equality of languages and scripts. He stressed,
however, that the Federation Constitution contained some specific features, in
particular with regard to this problem. The Federation Constitution does,
besides the constituent status of Bosniacs and Croats, guarantee equality to the
category of Others also with the consequence that they are proportionally
represented in all institutions of the Federation. This would partly amortize
the problem.
102. The expert of the House of Representatives outlined
in the public hearing that the Preamble of the Federation Constitution would
speak about peoples and citizens who are equal. In his opinion this includes not
only Bosniacs and Croats, but peoples, hence all the three peoples. Furthermore,
according to the original text as well as the later amended text of the
Federation Constitution also the category of Others does have constituent
status. In substance, the category of Others would mean Serbs as can be seen
from the institutions of the Federation where under the label of others
practically Serbs are represented. Hence, the >intentio constitutionalis<
would be fully satisfied if others were not the category of others but the third
constituent people of BiH. However, although the representation of the category
of others practically speaking leads mainly to the representation of Serbs, this
would not be sufficient. Therefore, also the Federation constitution had this
imperfection.
The Constitutional
Court finds:
103. As far as the interpretation of the last paragraph
of the Preamble to the Constitution of BiH with regard to Bosniacs, Croats, and
Serbs as constituent peoples, the legislative history, the institutional
structures of the common institutions of BiH and the function of the Dayton
Agreement are concerned, the Court refers to its findings in connection with
Article 1 of the RS Constitution (at paragraphs 50 to 74 supra).
104. As far as the compromise formula of ethnicity and
citoyenneté is concerned, the same holds true for the Federation Constitution.
However, there is a marked difference with regard to Article 1 of the RS
Constitution insofar as Article 1 of the Federation Constitution provides for
the category of Others. But this category of others is only a half-hearted
substitute for the status of constituent peoples and the privileges they enjoy
according to the Federation Constitution as will be shown.
105. Unlike the Constitution of the RS, the Federation
Constitution does provide for the proportional representation of Bosniacs,
Croats and Others in several governmental bodies. In some cases, however, it
reserves a privilege to Bosniac and Croat representatives to block the
decision-making process. These institutional mechanisms must trigger strict
scrutiny of review not only with regard to collective equality as far as
constituent peoples are concerned, but also as to whether the individual right
to vote according to Article 3 of the 1st Additional Protocol of the ECHR is
guaranteed without discrimination on ground of national origin. Moreover, the
provision of Article 5 of the Convention on the Elimination of all Forms of
Racial Discrimination has to be applied in BiH according to Annex I to the
Constitution of BiH and therefore not only imposes an obligation on the State of
BiH, but guarantees individual rights according to paragraph (c) of that
provision, namely political rights, in particular the rights to participate in
elections - to vote and to stand for election - on the basis of universal and
equal suffrage, to take part in the Government as well as in the conduct of
public affairs at any level and to have equal access to public service. From the
definition in Article 1 of the Convention it is clear that the term `racial
discrimination´ shall mean any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
Paragraph 4 of Article 1 prescribes that special measures taken 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 shall not be deemed racial discrimination...
106. Hence, the basic legal problem raised in this
regard is the question whether the special rights provided in the Federation
Constitution for the two constituent peoples, the Bosniacs and Croats, violate
the enjoyment of individual political rights insofar as they seem to provide for
a preference based on national or ethnic origin in the sense of Article 5 of the
Convention.
107. The Federation Constitution contains the following
special rights for members of the two constituent peoples so that their
designation as constituent may be discriminatory in the sense of the
Convention:
108. According to Article II.B.1 there shall be three
Ombudsmen, one Bosniac, one Croat, and one Other. As far as parliamentary
representation is concerned, there are no ethnic requirements for the House of
Representatives, whereas the House of Peoples shall consist of 30 Bosniacs and
30 Croats as well as a proportional number of Others . Article IV.A.8 prescribes
that those delegates have to be elected by the respective legislators , i. e.
Bosniacs, Croats and Others of the cantonal legislators. According to Article
IV.A.18 only delegates of the two constituent peoples may claim that a decision
of the House of Peoples may concern their vital interest with the effect of a
>suspensive veto< insofar as the Constitutional Court of the Federation of
BiH has finally to resolve the dispute in case of different majorities.
Moreover, according to Article VIII.1, a majority of the Bosniac or Croat
delegates in the House of Peoples may veto amendments of the Constitution.
Article IV.B.3 prescribes that the Chairman of a House of the Legislature has to
be from another constituent people thereby reserving these offices to members of
the constituent peoples.
109. With regard to executive offices, Article IV.B.2
provides for the election of the President and Vice-President with a caucus of
the Bosniac Delegates and a caucus of the Croat Delegates to the House of
Peoples each nominating one person. Article IV.B.5 reserves one-third of the
Ministerial positions to Croats. Article IV.B.6 again confers veto-power on the
representatives of the constituent peoples. Article IV.B.4 as revised by
Amendment XII prescribes that no deputy minister can belong to the same
constituent people as his minister.
110. As far as the judiciary is concerned Article IV.C.6
prescribes that there shall be an equal number of Bosniac and Croat judges on
each court of the Federation whereas others shall be proportionally represented.
Accordingly Article IV.C.18 establishes a Human Rights Court with three judges,
on Bosniac, one Croat, and one Other.
111. As far as federal structures are concerned, Article
V.8 provides for a minimum representation for each constituent people in
cantonal governments whereas cantonal judges shall, according to Article V.11,
be nominated in such a way that the composition of the judiciary as a whole
shall reflect that of the population of the Canton.
112. The provisions of the Federation Constitution
providing for minimum or proportional representation and veto powers for certain
groups do certainly constitute a preference in the sense of Article 5 of the
Race Discrimination Convention. However, insofar as they create preferential
treatment in particular for members of the two constituent peoples, they cannot
be legitimized under Article 1 paragraph 4 since these special measures are
certainly not taken for the sole purpose of securing adequate advancement of
Bosniacs or Croats requiring such protection in order to ensure the equal
enjoyment of rights.
113. As
can be seen from the legislative history of the Federation Constitution, these
institutional safeguards were introduced with the aim of power-sharing which is
a legitimate aim for the political stabilization and democratization through
>consensus government.< However, to what extent can institutional devices
for the representation and participation of groups with the aim of power-sharing
infringe individual rights, in particular voting rights ? Can there be a
compromise between individual rights and collective goals such as power-sharing?
In trying to answer this question, two extreme positions which mark the ends of
a scale for weighing contradicting rights and goals or interests must serve as
starting points.
114. Do, for
instance, language rights, i.e. legal guarantees for members of minority groups
to use their mother tongue in procedures before courts or administrative bodies
really constitute a privilege that members of the majority do not have insofar
as they have to use the official language which is their mother tongue anyway?
Such an obviously absurd assertion takes the unstated norm of the ethnically
conceived nation-State for granted by identifying the language of the majority
with the state. Contrary to the ideological underpinnings of the ethnically
conceived nation-State - the alleged necessity of exclusion of all elements
which disturb ethnic homogeneity - such special rights are thus necessary in
order to maintain the possibility of a pluralist society against all trends of
assimilation and/or segregation which are explicitly prohibited by the
respective provisions of the Racial Discrimination Convention which has to be
applied directly in Bosnia and Herzegovina according to Annex 1 to the
Constitution of BiH.
115.
However, if a system of government is established which reserves all public
offices only to members of certain ethnic groups, the right to participation in
elections, to take part in government as well as in the conduct of public
affairs at any level and to have equal access to public service is seriously
infringed for all those persons or citizens who do not belong to these ethnic
groups insofar as they are outright denied to stand as candidates for such
governmental or other public offices.
116. The question is thus raised, to what extent the
infringement of these political rights might be legitimized. Political rights,
in particular voting rights including the right to stand as a candidate, are
fundamental rights insofar as they go to the heart of a democratic, responsible
government required by the provisions of the Preamble, paragraph 3, and Article
I.2 of the Constitution of BiH and the respective provisions of the European
Convention on Human Rights and the other international instruments referred to
in Annex I to the Constitution of BiH. A system of total
exclusion of persons on the ground of national or ethnic origin from
representation and participation in executive and
judicial bodies gravely infringes such fundamental rights and can therefore
never be upheld. Hence, all provisions reserving a certain public office in the
executive or judiciary exclusively for a Bosniac or Croat without the
possibility for others to be elected or granting
veto-power to one or the two of these peoples only seriously violate Article 5
of the Racial Discrimination Convention and the constitutional principle of
equality of the constituent peoples. These institutional mechanisms cannot be
seen as an exemption in the sense of Article 1 paragraph 4 of the Racial
Discrimination Convention insofar as they favor the two constituent peoples who
form the majority of the population. Nor are they necessary for these two
peoples in order to achieve full or effective equality in the sense of Article 1
paragraph 4 of the Racial Discrimination Convention.
117. Provisions granting minimum or proportional
representation in governmental bodies are thus not per se unconstitutional. The
problem is to whom they give preferential treatment! Therefore, the very same
devices for others in the Federation Constitution are certainly in conformity
with Article 1 paragraph 4 of the Racial Discrimination Convention under the
present circumstances in the Federation of BiH.
118. Minimum or proportional representation in the Federation legislature must be seen from a
different angle. Insofar as there is a bicameral parliamentary structure with
the first Chamber based on universal and equal suffrage without any ethnic
distinctions and the second Chamber, the House of Peoples, providing also for
the representation and participation of others, there is prima facie no such system of total exclusion from the right to stand as a
candidate.
119. In the Case of
Mathieu-Mohin and Clairfayt v. Belgium (9/1985/95/143) the majority of the
European Court of Human Rights ruled that Article 3 of the 1st Protocol of the
ECHR is not violated insofar as the French-speaking electors in the district
Halle - Vilvoorde were in no way deprived of the right to vote and the right to
stand for election on the same legal footing as the Dutch-speaking electors by
the mere fact that they must vote either for candidates who will take the
parliamentary oath in French and will accordingly join the French-language group
in the House of Representatives or the Senate and sit on the French Community
Council, or else for candidates who will take the oath in Dutch and so belong to
the Dutch-language group in the House of Representatives or the Senate and sit
on the Flemish Council. In the words of the dissenting opinion, the practical
consequence is that unless they vote for Dutch-speaking candidates, the
French-speaking voters in this district will not be represented in the Flemish
Council. Article 3 of the 1st Protocol, unlike the American Voting Rights Act
1964, thus does not guarantee a right to vote for a candidate of one`s
choice.
120. It could thus be
argued that there is no violation of Article 3 of the 1st Protocol if a Croat
voter has to cast his vote for a Bosniac or Serb candidate, etc. However, there
is at least one striking difference in the electoral mechanisms of Belgium on
the one hand, and the Federation of BiH on the other, in particular as far as
the right to stand as a candidate is concerned. The Belgian system does not
exclude per se the right to stand as a candidate solely on the ground of language. Every citizen can
stand as a candidate, but has - upon his election - to decide whether he will
take the oath in French or in Flemish. It is therefore the subjective choice of
the individual candidate whether to take the oath in French or in Flemish and
thereby to represent a specific language group, whereas provisions of the
Constitution of the Federation of BiH provide for >a
priori< ethnically defined Bosniac and Croat delegates, caucuses and veto
powers for them.
121. Moreover,
the European Court stated that - although states have a wide margin of
appreciation in this sphere - it is for the Court to determine in the last
resort whether the requirements of Protocol No. 1 have been complied with: It
has to 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; that they are imposed in pursuit of a legitimate aim; and that
the means employed are not disproportionate so as to thwart the free expression
of the opinion of the people in the choice of the legislature.
122. The Constitutional Court has
thus to assess the constitutional provisions of the Constitution of the
Federation of BiH in light of the factual and legal differences with the leading
case of the ECHR and its interpretation of the 1st Protocol that states have no
(!) margin of appreciation insofar as the essence and effectiveness of the free
expression of the opinion of the people in the choice of their legislature are
concerned.
123. As was already
outlined supra, there are no ethnic requirements for the House of
Representatives, whereas the House of Peoples shall consist of 30 Bosniacs and
30 Croats as well as a proportional number of Others . Article IV.A.8 prescribes
that those delegates have to be elected by the respective legislators , i. e.
Bosniacs, Croats and Others of the cantonal legislators. According to Article
IV.A.18 only delegates of the two constituent peoples may claim that a decision
of the House of Peoples may concern their vital interest with the effect of a
>suspensive veto< insofar as the Constitutional Court of the Federation of
BiH has finally to resolve the dispute in case of different majorities. Article
IV.B.3 prescribes that the Chairman of a House of the Legislature has to be from
another constituent people thereby reserving these offices to members of the
constituent peoples.
124. In
light of the criteria established supra, the Court finds that the institutional
structure of representation through the bi-cameral system as such would not
violate the respective provisions of the 1st Protocol. What raises, however,
serious concerns is the combination of exclusionary mechanisms in the system of
representation and decision-making through veto-powers on behalf of ethnically
defined majorities which are, however, in fact minorities and are thus able to
force their will on the parliament as such. Such a combined system of ethnic
representation and veto-power for one ethnic group - which is defined as a
constituent people, but constitutes a parliamentary minority - does not only
infringe the collective equality of constituent peoples, but also the individual
right to vote and to stand as a candidate for all other citizens to such an
extent that the very essence and effectiveness of the free expression of the
opinion of the people in the choice of the legislature is seriously impaired. In
the final analysis, the designation of Bosniacs and Croats as constituent
peoples according to Article I. 1. (1) of the Federation Constitution serves as
the constitutional basis for constitutionally illegitimate privileges given only
to these two peoples in the institutional structures of the Federation.
125. There is an argument that,
since the text of the Preamble of the BiH Constitution insofar as it refers to
constituent peoples was modeled upon the Article I of the Federation
Constitution, the latter provision cannot violate the former. However, this
argument does not take into account that the Preamble of the BiH Constitution
designates all three peoples as constituent, whereas Article I of the Federation
Constitution designates only two of them as constituent with the discriminatory
effect outlined above.
126.
Thus, although even the preamble of the Federation Constitution expressly
prescribes the equality of all peoples, i.e. including the constituent peoples,
their full equality as required under the Constitution of BiH is not guaranteed
since they are not given the same effective participation in the decision-making
processes of the Federation Parliament.
127. In conclusion, Bosniacs and Croats, on the basis of
the contested Article I.1 (1) enjoy a privileged position which cannot be
legitimized since they are neither on the level of the Federation nor on the
level of Bosnia and Herzegovina in the factual position of an endangered
minority which has to preserve its existence.
128. It would thus not be necessary for the Constitutional
Court to pursue the allegation of the applicant that Article I.1 (1) of the
Federation Constitution is discriminatory by providing also the constitutional
basis for the violation of other individual rights than the right to vote and to
stand as a candidate in a discriminatory manner as prohibited by Article II.4 of
the Constitution of BiH. However, insofar as the request of the applicant is not
only concerned with the collective equality of the constituent peoples, but also
with the discrimination against individuals, in particular against refugees and
displaced persons regardless of their ethnic origin, the Court will review
Article I.1 (1) of the Federation Constitution also in light of this allegation
of the applicant.
129. The
constitutional problem raised by the applicant in this respect is the question
whether the contested provision does have a discriminatory intent or effect with
regard to the enjoyment of individual rights guaranteed by the Constitution of
BiH. As this is the case with Article 1 of the RS Constitution, the wording of
this provision does not create mutually exclusive categories of persons so that
it is not prima facie discriminatory. Nevertheless, the explicit designation of
Bosniacs and Croats triggers strict scrutiny with regard to the other standards
of review elaborated in detail above (see paragraphs 79 to 81). Hence, does this
provision provide the constitutional basis for discriminatory legislation,
discriminatory administrative or judicial practice of the authorities? Is there
other circumstantial evidence - such as the comparison of population figures or
the numbers of returns - which shows such a disparate impact as to indicate that
the effects of past de jure discrimination, in particular of ethnic cleansing,
are upheld by the authorities or that they violate their obligation to provide
for protection also against violence of private individuals and to create the
respective political, economic, and social conditions conducive to the voluntary
return and harmonious reintegration of refugees and displaced persons, without
preference for any particular group ?
130. With regard to the factual situation in the Federation
of BiH, the Constitutional Court could, according to Article 22 of its Rules of
Procedure, ascertain the following facts:
As far as population figures are
concerned, the number of Bosniacs, Croats, Serbs and others living on the
territory of the Federation is as follows:
Ethnic Breakdown of the Population on
Federation territory according to 1991 Census in comparison with 1997 (Source,
IMG, on the basis of the 1991 census and UNHCR estimates for 1997).
| |
1991
|
1997
|
|
Bosniacs
|
52.09%
|
72.61%
|
|
Croats
|
22.13%
|
22.27%
|
|
Serbs
|
17.62%
|
2.32%
|
|
Others
|
8.16%
|
2.38%
|
131. As can be seen from these figures, the proportional
number of Croats living on the territory of the Federation remained almost the
same. The proportional number of Bosniacs increased to more than a two-thirds
majority, whereas that of Serbs dramatically decreased. Had the territory of the
Federation obviously formed an area with mixed population of the three
constituent peoples and others in 1991, the population figures of 1997 clearly
show that the Federation is now a bi-national >entity< of the members of
only two of the three constituent peoples.
132. The conclusions from these figures are supported again
by a comparison of the figures for the overall return of refugees and displaced
persons to the Federation with those of the so-called minority -returns.
133. In order to encourage the
local authorities to allow minority returns, representatives of Bosnia and
Herzegovina, the Federation of Bosnia and Herzegovina, the Sarajevo canton and
the international community, on 3 February 1998 adopted the Sarajevo
Declaration. The goal of the Declaration was to allow at least 20.000 minority
returns in 1998 which is, by the way, in itself sufficient evidence of
discriminatory intent. However, the actual number of returns decreased and the
overall results stayed far below the expected figures of 20.000 minority
-returns for 1998.
134. By 31
January 1999, only 19.247 Serb refugees and displaced persons had returned to
the Federation of BiH in comparison to 380.165 Bosniacs and 74.849 Croats
(Source: UNHCR, Statistics Package of 1 March 1999). Hence, the so-called
>minority<-return of Serbs amounts to 4,05% of all those who have
returned.
135. Again, this
comparison obviously demonstrates that such a tremendous discrepancy according
to the ethnic origin of refugees and displaced persons cannot be explained by
the overall economic and social conditions but provides clear evidence of
differential treatment vis-ŕ-vis refugees and displaced persons solely on the
ground of ethnic origin.
136.
Although the provisions of the Federation Constitution, provide for proportional
representation of others in the governmental bodies of the Federation and the
representatives of the applicant had acknowledged in the course of the public
hearing that the constitutional category of others provides for access of people
of Serb origin to governmental bodies, Serbs and others in the sense of census
figures are still underrepresented in the police forces not only with regard to
the 1997 population figures, but much more in comparison with 1991. Hence, in
particular the small number of Serbs in the Federation police forces could raise
doubts about their impartiality with regard to ethnic origin.
Ethnic Breakdown of the Federation police forces and the
judiciary composed of judges and public prosecutors (Source: IPTF with figures
of 17 January 1999 made available to the Court).
-
| |
Bosniacs
|
Croats
|
Serbs
|
Others
|
|
Judges and Public Prosecutors
|
71.72%
|
23.26%
|
5.00%
|
no
figures
|
|
Police forces
|
68.81%
|
29.89%
|
1.22%
|
0.08%
|
-
-
-
-
-
137. That these doubts are not unfounded from the outset
can again be seen from numerous reports of the OHR, the ICG, the Ombudsperson
for BiH etc. on numerous incidents in the Federation and the following
discriminatory practices of the Federation authorities which help to explain the
small number of so-called minority -returns so that the Human Rights
Ombudsperson for BiH stated in her Special Report, No. 3275/99 On Discrimination
in the Effective Protection of Human Rights of Returnees in Both Entities of
Bosnia and Herzegovina as of 29 September 1999: return related incidents at
issue and the passive attitude of the police and other competent authorities
were predicated solely on the basis of the national origin of those affected.
She thus finally concluded that returnees have been discriminated against on the
ground of their national origin in the enjoyment of their rights guaranteed by
Article 3 and 8 of the Convention, Article 1 of Protocol No. 1 to the Convention
and equality before the law and equal protection before the law as provided in
Article 26 of the ICCPR.
138. In conclusion the Court holds that, after the
Dayton-Agreement came into force, there was and is a systematic, long-lasting,
purposeful discriminatory practice of the public authorities of the Federation
of BiH in order to prevent so-called minority -returns either through direct
participation in violent incidents or by not fulfilling their obligation to
protect people against harassment, intimidation or violent attacks solely on the
ground of their ethnic origin, let alone the failure to create the necessary
political, economic and social conditions conducive to the voluntary return and
harmonious reintegration which follows from the right of all refugees and
displaced persons freely to return to their homes of origin according to Article
II. 5 of the Constitution of BiH.
139. It thus follows from the totality of circumstances
that the designation of Bosniacs and Croats as constituent peoples in Article I.
1. (1) of the Constitution of the Federation has a discriminatory effect and
also violates the right to liberty of movement and residence and the right to
property as guaranteed by Article II. paragraphs 3 and 4 in connection with
paragraph 5 of the Constitution of BiH. Moreover, the aforementioned provision
of the Federation Constitution violates Article 5 (c) of the Convention on the
Elimination of All Forms of Racial Discrimination and the right to collective
equality following from the text of the Constitution of BiH as outlined
above.
140. The Constitutional Court thus declares the wording
Bosniacs and Croats as constituent peoples, along with Others, and as well as in
the exercise of their sovereign rights of Article I. 1. (1) of the Constitution
of the Federation unconstitutional.
141. The Constitutional Court adopted its decision
concerning paragraphs 1, 2, 3 and 5 of the Preamble of the RS Constitution, as
amended with Amendments XXVI and LIV, Article 1 of the RS Constitution, as
amended with Amendment XLIV, and Article I.1 (1) of the Constitution of the
Federation of BH, as amended with Amendment III, by 5 votes pro to 4 votes con.
142. The decisions regarding the publication in the
Official Gazettes of Bosnia and Herzegovina, Republika Srpska and the Federation
of Bosnia and Herzegovina and regarding the day when the provisions which are
declared unconstitutional cease to be valid are based on Articles 59 and 71 of
the Rules of Procedure.
The Court ruled in the following
composition:
Prof. Dr. Kasim Begic, President of the
Constitutional Court, judges Hans Danelius, Prof. Dr. Louis Favoreu, Prof. Dr.
Joseph Marko, Dr. Zvonko Miljko, Azra Omeragic, Prof. Dr. Vitomir Popovic, Prof.
Dr. Snezana Savic and Mirko Zovko.
Pursuant to Article 36 of the Rules of
Procedure of the Constitutional Court of Bosnia and Herzegovina, a concurring
opinion was expressed by judge Hans Danelius and a dissenting opinion by judges
Dr. Zvonko Miljko, Prof. Dr. Vitomir Popovic, Prof. Dr. Snezana Savic and Mirko
Zovko. These opinions are annexed to this Partial Decision.
|
U 5/98 III
1 July 2000
Sarajevo |
President of the Constitutional
Court
of Bosnia and Hercegovina
Prof.
Dr. Kasim Begic |
|
