U 5/98 Partial Decision I dated 29 January 2000, published in the Official Gazette of Bosnia and Herzegovina, 11/00 – it was established that the term “border” in Article 2, paragraph 2; the words “or extradited” in Article 6, paragraph 2; Article 44, paragraph 2; Article 98 and Article 76, paragraph 2, as amended by Amendment XXXVIII and Article 138, as amended by Amendments LI and LXV of the Constitution of Republika Srpska are unconstitutional. In Constitution of Federation of BiH, under Article IV.B.7.a) (I) the words “heads of diplomatic missions” and, under Article IV.B.8, the words “heads of diplomatic missions” are unconstitutional.
Constitution of the Republika Srpska Article 2, paragraph 2
The provision of the Constitution of RS, referring to the “border” between the Republika Srpska and the Federation of BiH, is not in conformity with the Constitution of BiH (Article III of the General Framework Agreement for Peace in Bosnia and Herzegovina speaks of “boundary lines” between the two Entities, while Article X uses the term border in the sense of borders between states.
Article 6, paragraph 2
The provisions of the Constitution of RS regulating that an RS citizen may not be extradited, are unconstitutional as this issue falls within the competence of institutions of BiH.
Article 44, paragraph 2
The provision of Article 44 paragraph 2 of the Constitution of RS is unconstitutional as, according to the Constitution of BiH (Article III(1)(f)), policy and regulation of asylum falls within the competence of institutions of BiH. Accordingly, Entities have no authority to regulate the asylum policy.
Articles 98 and 76, paragraph 2
Despite the fact that the National Bank no longer exists, the RS People’s Assembly failed to repeal provisions relating thereto and they still remain in effect.
According to Article VII of the Constitution of BiH, the Central Bank of BiH shall be the sole authority for issuing currencies and for monetary policy throughout BiH. Pursuant to Article III(3) of the Constitution of BiH, the Entities have no authority in this respect.
Given that the challenged provisions of Article 98 of the RS Constitution provide that the regulation of the status and business running of the RS National Bank falls within the competence of the RS legislation without paying a due respect to the limitations given in Article VII of the BiH Constitution, the said provisions cannot be interpreted as consistent with the BiH Constitution. Therefore, those provisions are declared unconstitutional.
The Central Bank, in pursuance of Article VII of the Constitution of BiH, is the sole authority for monetary policy throughout BiH, which includes proposed bills in this respect. The challenged provision of the Constitution of RS regulating that the RS National Bank shall have the right to propose laws, other regulations and general enactments relating to monetary, foreign exchange and credit system is therefore unconstitutional.
Article 138 (as amended by Amendments LI and LXV)
The Provision of Article 138 of the Constitution of RS, empowering the RS authorities to pass enactments and undertake measures for the protection of rights and interests of the RS against enactments of institutions of BiH or the Federation of BiH, is declared unconstitutional. The above referenced stands since the Constitutional Court of BiH shall have exclusive jurisdiction to serve as a protective mechanism in case of “any dispute of this kind” pursuant to Article VI(3)(a) of the Constitution of BiH and since Article 75 of the Constitutional Court’s Rules of Procedure provides a possibility for an interim measure to be adopted.
Constitution of the Federation of Bosnia and Herzegovina
Article IV.B.7.a. (I) and Article IV.B.8
The provisions of the Constitution of the Federation of BiH which provide that the President of the Federation shall be responsible for nominating the heads of diplomatic missions, are unconstitutional since the Presidency of BiH, pursuant to Article V(3)(b) of the Constitution of BiH, has responsibility for appointing ambassadors without restriction in its decision-making right.
U 5/98 Partial Decision II dated 18 February 2000, published in Official Gazette of Bosnia and Herzegovina, 17/00 - Article 59, paragraphs 1, 2, and 3 of the Constitution of Republika Srpska was declared unconstitutional. It was concluded that a designation of natural resources, city construction land, real estate and goods of public interest as state owned property ex constitutione, represents the violation of the very “nature” of privately owned property which is an individual right and an institutional safeguard. A constitutionally guaranteed right to privately owned property, as an institutional safeguard in the entire BiH, requires a framework legislation at the level of BiH for the purpose of identification of standards necessary to fulfill previously mentioned obligations of the Constitution. Such framework legislation should therefore provide different forms of property, holders of those rights and general principles for their enforcement in the sense of property law that normally stands for an element of civil law statutes in democratic societies. In addition, Article III of the Constitution of BiH does not provide for exclusive division of competencies between institutions of BiH and Entities. However, it requires the implied powers of both institutions of BiH and Entities’ authorities to be taken into account, as necessary for cooperation within a state.
U 5/98 Partial Decision III dated 1 July 2000, published in the Official Gazette of Bosnia and Herzegovina, 23/00 - It was established that the following paragraphs were declared unconstitutional: paragraphs 1, 2, 3 and 5 of the Preamble, as amended by Amendments XXVI and LIV and the wording “a State of the Serb people and” of Article 1, as modified by Amendment XLIV. Regarding the Constitution of the Federation of Bosnia and Herzegovina, the following wordings were declared unconstitutional: “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 modified by Amendment III.
Constitution of the Republika Srpska
Paragraphs 1, 2, 3 and 5 of the Preamble
Referring to sovereignty, state independence, establishment of a state and versatile and close connection of the Republika Srpska with other states of the Serb people in paragraphs 1, 2, 3 and 5 of the Preamble of the Constitution of RS represents the violation of Article I(1) taken in conjunction with Articles I(3), III(2)(a) and 5 of the Constitution of BiH, which guarantee sovereignty, territorial integrity, political independence and international sovereignty of BiH.
Article 1, as supplemented by Amendment 44
The Preamble of the Constitution of BiH clearly designates Bosniacs, Croats and Serbs as constituent peoples, i.e. peoples.
The elements of a democratic state and society as well as underlying assumptions – pluralism, just procedures, peaceful relations that arise out of the Constitution – must serve as a guideline for further elaboration of the issue of the structure of BiH as a multi- national state.
The territorial division (of Entities) must not serve as an instrument of ethnic segregation – on the contrary – it must accommodate ethnic groups by preserving linguistic pluralism and peace in order to contribute to the integration of the state and society as such.
The constitutional principle of collective equality of constituent peoples, arising out of designation of Bosniacs, Croats and Serbs as constituent peoples, prohibits any special privileges for one or two constituent peoples, any domination in governmental structures and any ethnic homogenization by segregation based on territorial separation.
Despite the territorial division of BiH by establishment of two Entities, this territorial division cannot serve as a constitutional legitimacy for ethnic domination, national homogenization or the right to maintain results of ethnic cleansing.
Designation of Bosniacs, Croats and Serbs as constituent peoples in the Preamble of the Constitution of BiH must be understood as an all-inclusive principle of the Constitution of BiH to which the Entities must fully adhere, pursuant to Article III(3)(b) of the Constitution of BiH.
The Constitutional Court concludes that the provision of Article 1 of the Constitution of RS violates the constituent status of Bosniacs and Croats assigned by the last line of the Preamble of the Constitution of BiH, which, in addition to individual human rights and freedoms, contains positive obligations of the Entities to vouch for enjoyment of those rights and freedoms.
Constitution of the Federation of Bosnia and Herzegovina
Designation of Bosniacs and Croats as constituent peoples in Article 1(1)(1) of the Constitution of BiH has discriminatory consequences and violates the right to freedom of movement and residence and the right to property, guaranteed by Article II paragraphs 3 and 4 taken in conjunction with paragraph 5 of the Constitution of BiH. This provision also violates Article 5(c) of the Convention on the Elimination of All Forms of Racial Discrimination and the right to collective equality, which arise out of the Constitution of BiH.
Moreover, in addition to clear constitutional obligation not to violate individual rights in a discriminatory manner, arising out of Article II(3) and (4) of the Constitution of BiH, there is also a constitutional obligation of non-discrimination in the sense of rights of groups if, for instance, one or two constituent peoples enjoy preferential treatment through Entity legal systems.
Furthermore, all public authorities in BiH, in addition to having to refrain from any discrimination in the enjoyment of individual rights and freedoms, primarily those based on national origin, also have a positive obligation to protect individuals from being discriminated against. In terms of refugees and displaced persons, they are additionally obligated to create necessary political, social and economic conditions for their smooth reintegration.
U 5/98 Partial Decision IV dated 18 August 2000, published in the Official Gazette of Bosnia and Herzegovina, 36/00 - The Constitutional Court declares that the following provisions are unconstitutional: Article 68, paragraph 16 as amended by Amendment XXXII, Article 7, paragraph 1 and Article 28, paragraph 4 of the Constitution of Republika Srpska and Article I(6)(1) of the Constitution of Federation of BiH.
Constitution of the Republika Srpska
Article 68, paragraph 16
Article 68 Paragraph 16 of the Constitution of the RS, according to which “the RS regulates and ensures co-operation with the Serb people outside of the Republic”, creates a preference that cannot be legitimatized pursuant to Article I paragraph 4 of the Convention on the Elimination of All Forms of Racial Discrimination. It also violates obligations imposed by Article 2 paragraph 1 item (c) of the Convention on the Elimination of All Forms of Racial Discrimination. The same obligation follows from Article 1, paragraph 3, sub-paragraph (a) and Article II, paragraph 1 of Annex VII, taken in conjunction with Article II, paragraph 2 and Article III, paragraph 2, sub-paragraph (b) of the Constitution of BiH.
Article 7, paragraph 1
A wide range of meaning of “official use” of the Serbian language and Cyrillic alphabet and territorial restriction of official use of other languages under Article 7 of the Constitution of the RS, however, reach far beyond per se legitimate goal of regulation of official language use in so far as these provisions have the effect of prevention of enjoyment of rights under Article II(3)(m) and 5 of the Constitution of BiH. They are also in contravention to Article I(4) of the Constitution of BiH.
Regulation of languages by Entities is a legitimate goal per se, but it might pose a violation of the rights of individuals and positive obligations provided for by the Constitution that serve as an institutional safeguard of “a pluralist society” and “market economy” according to the Preamble of Constitution of BiH. There is an implicit and yet necessary responsibility of the State of BiH to ensure minimum standards for language use through a framework legislation, given the clear presence of danger created by use of official language regulations without restrictions in Entities concerning these fundamental normative principles and institutional safeguards of the Constitution of BiH. In doing so, the legislation of BiH must account for an efficient possibility of equal use of Bosnian, Croatian and Serbian languages, not only in institutions of BiH but also at the level of Entities and their administrative authorities, in legislative, executive and judicial authorities as well as in public. The highest standards of Articles 8 through 13 of the European Charter for Regional or Minority Languages should be used as guidelines for the three languages. Lower standards provided in the European Charter might – taking into account appropriate conditions – be sufficient for other languages only.
Article 28, paragraph 4
The provision of Article 28, paragraph 4 of the Constitution of the RS gives the Orthodox Church an important influence over creation of a system of values and belief, and it must be considered as a constitutional norm that allows the authorities to “create a public atmosphere that prevents free exercise of religion”.
In view of the material support to the Orthodox Church, it acquired a privilege by this provision that cannot be legitimatized in constitutional terms and is therefore of an inherent discriminatory character.
Constitution of the Federation of Bosnia and Herzegovina Article I.6(1)
The challenged provision presents a serious obstacle to the enjoyment of rights guaranteed under Article II(3)(n) and II(5) of the Constitution of BiH, and it violates positive obligations arising out of the Framework Convention for the Protection of National Minorities, the Convention on the Elimination of All Forms of Racial Discrimination, and Article II(4) of the Constitution of BiH. Accordingly, the Constitutional Court declared this provision unconstitutional, and it reads as follows: “The official languages of the Federation shall be the Bosnian and the Croatian language. The official script will be the Latin alphabet.”