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CDL (2000) 81
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EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
Constitutional Court
of Bosnia and Herzegovina
Case U 5/98
Partial Decision III
Issue of the “Constituent
Peoples”
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
Proceedings
before the Constitutional Court
1.
On
12 February 1998 Mr. Alija Izetbegoviã, 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
Dþemil Sabrihafizoviã, the House of Representatives of the Federation by Enver
Kreso and the expert Sead Hodþiã, 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 Lukiã and the expert Prof. Dr. Petar Kuniã. 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.
/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 Dþemil Sabrihafizoviã, the House of Representatives of the
Federation by Enver Kreso and the expert Sead Hodþiã and the National Assembly
of Republika Srpska by Prof. Dr. Radomir Lukiã and the expert Prof. Dr. Petar
Kuniã. 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.
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 Brèko 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 Brèko 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 Brèko
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 principles 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. /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 U-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 passage of 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 ethnic 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 accommodation 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
homogenisation 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 homogenisation
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 legitimised 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 legitimised 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 re-establish 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-à-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-à-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 Brèko
and installed only under the supervisory regime of the international community.
Moreover, as can be seen from para. 84 of the Brèko Arbitration Award of 1997,
the Tribunal concluded from the RS “Basic General Principles” the “fairly obvious
purpose -- and the result – [...] to keep Brèko 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 I.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
legitimised 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
democratisation 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 legitimised. 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 favour 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 modelled 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 legitimised 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-à-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.
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 Begiã, President
of the Constitutional Court, judges Hans Danelius, Prof. Dr. Louis Favoreu,
Prof. Dr. Joseph Marko, Dr. Zvonko Miljko, Azra Omeragiã, Prof. Dr. Vitomir
Popoviã, Prof.
Dr. Sneþana Saviã 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 Popoviã,
Prof. Dr. Sneþana Saviã 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 Begiã
|
