European Charter for Regional or Minority Languages (1992)

The European Charter for Regional or Minority Languages (1992) is a substantive constitutional law in Bosnia and Herzegovina.²¹⁰⁶ Together with the Framework Convention for the Protection of National Minorities (1994) and the International Convention on the Elimination of All Forms Racial Discrimination (1965), the European Charter imposes an obligation on the State to ensure linguistic pluralism in order to integrate various linguistic ethnic groups and society.²¹⁰⁷ Therefore, ethnic separation through territorial delimitation must not serve as an instrument of assimilation or segregation of linguistic groups in a multi-ethnic Bosnia and Herzegovina. It does not meet the standards of a democratic state and pluralistic society within the meaning of Article I.2 in conjunction with line 3 of the Preamble of the BiH Constitution.²¹⁰⁸ The European Charter for Regional or Minority Languages (1992) makes a clear distinction between (legal) collective equality and the (factual) status of national minority. Therefore, Article 1 of the European Charter for Regional or Minority Languages (1992) clearly distinguishes official languages from minority languages.²¹⁰⁹ The constitutional principle of collective equality of the constituent peoples requires that the constituent people, irrespective of its de facto minority status in certain territory, enjoy equal treatment.²¹¹⁰

In the context of language, this means that the Entities, in regulating the issue of official languages, must abide by the rules that have been previously described, and which secure the protection of a pluralistic society. The rule granting official status to one language only and offering no protection mechanisms for other languages is not compatible with the aforementioned. In order to avoid breaches of the principles of the European Charter for Regional or Minority Languages, any State is offered the possibility to set forth minimum standards and regulations for language rights by a framework law. Thus, in the context of Bosnia and Herzegovina, the European Charter offers the possibility that the State, on the basis of one framework law, sets forth standards applicable to all three languages of the constituent peoples so that the three languages may equally and effectively be used and are allowed to be used at all administrative-territorial levels and before all State authorities.

The principles of Articles 8 through 13 of the European Charter for Regional or Minority Languages offer a yardstick for such a framework law. Lower standards may be set and may only be applied to languages of other groups (those that do not have the status of constituent peoples).²¹¹¹ As a result, the BiH Constitutional Court declared Article 7 of the RS Constitution unconstitutional for granting only the Serbian language official status and for restricting the use of other languages by territorially defined rules.²¹¹² For the same reason, the BiH Constitutional Court concluded that it was unconstitutional to prevent one constituent people from declaring its own language an official language of higher education institutions.²¹¹³

Collective equality of constituent peoples in respect of the right to language does not comprise the requirement of linguistic exclusivity.²¹¹⁴ In Case No. U 10/05, the task of the BiH Constitutional Court was to establish whether the vital interest of one constituent people is essentially comparable with the vital interest of a national minority, and if so, to what extent. Namely, the issue raised in the case was whether one of the constituent peoples may invoke the specific rights of national minorities.

Želimir Jukić, Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina at the time, referred to Articles 10 and 14 of the ECHR, and Article 11 of the European Charter for Regional or Minority Languages, as he held that the Draft Law on the Public Broadcasting System of Bosnia and Herzegovina was destructive to the vital interest of the Croat people in Bosnia and Herzegovina. He claimed a violation of the right to freedom of expression as the Public Broadcasting System of Bosnia and Herzegovina was based on three organisational units, one at the state level and two at the level of the Entities, so that there was no possibility that all three constituent peoples could have public broadcasters in their languages at the level of the Entities. The applicant also referred to a Report on Media Diversity in Europe in 2002 prepared by a group of experts of the Advisory Panel to the Media Division of the Director General of Human Rights of the Council of Europe, wherein it was underlined that Article 10 of the ECHR not only enshrined an individual right to media freedom, but also entailed a duty to guarantee pluralism of opinion and the cultural diversity of the media in the interests of a functioning democracy and of freedom of information for all and that governments of the member states should act against increasing concentration in media. Jukić also referred to Article 11 of the European Charter for Regional or Minority Languages in respect of the collective right to public broadcasting in one’s own language. In his view, this provision guarantees national minorities the right to have at least one public broadcaster in their own languages. To that end, it was alleged that the Entities’ Broadcasting Systems were de facto using exclusively the Serbian language (in the Republika Srpska) and the Bosnian language (in the Federation of BiH). Furthermore, the applicant asserted that the Draft Law on the Public Broadcasting System of Bosnia and Herzegovina did not define the instruments implementing the programming principles set forth in the mentioned Draft Law. Thus, in his opinion, the law had no relevance as it left room for authorised personnel of the Public Broadcasting System of Bosnia and Herzegovina to make decisions at their discretion as to the use of languages, and to what extent ethnic, regional, traditional, religious, cultural, linguistic and other characteristics of the constituent peoples would be observed.²¹¹⁵

The applicant’s request was not supported by the BiH Constitutional Court.²¹¹⁶ First, the BiH Constitutional Court stated that the argument, according to which the European Court considers public monopolies in audiovisual media to violate Article 10 of the ECHR primarily because they cannot ensure several different sources of information and a plurality of points of view,²¹¹⁷ was not relevant to the present case. More precisely, the present issue was not related to the principles of plurality of viewpoints but to the right of the constituent people to have a public broadcast in its own language.

The remainder of the argument is essential for making the principal distinction between collective rights and the rights of national minorities.²¹¹⁸ The Draft Law guarantees equality of all three languages. In addition, the Draft Law does not contain provisions that would place the Serbian language or the Bosnian language into a more favourable position than the Croatian language. The Croats are a constituent people throughout Bosnia and Herzegovina and this is a fundamental difference in respect of national minorities. The constituent status also relates to the Croatian language and the other two languages. The European Charter for Regional or Minority Languages pursues the aim of protecting certain groups which, because of their status of national minority in a country, do not enjoy the effective protection of their own language compared to the dominant, majority language in the country. The challenged Draft Law stipulates ex lege linguistic and cultural equality before the law, which is derived from the constitutional principle of the collective equality of the constituent peoples. Consequently, the Croats cannot demand special rights which, in effect, belong to national minorities.

The BiH Constitutional Court regards the constituent status as a constitutional status, which per se offers to privileged groups sufficient rights to protection and to participation and there is no need to enter into the sphere of national minorities. Consequently, the constituent status rules out the right to demand minority rights even in case where the constituent group in a country constitutes a minority, in the context of numbers and statistics, compared to other groups. This argument may be justified by the fact that the collective rights, based on the principle of constituent status, are special rights in relation to the rights of national minorities. These rights are often much wider than the rights of national minorities although this is not always the case in certain fields. The collective rights derived from the principle of constituent status are guaranteed by the BiH Constitution. Therefore, they rule out ex leges additional special rights that are anticipated for other (“ordinary”) groups, and which are derived from their status of national minority. Being aware of the pluralistic composition of the society and the tensions stemming from the need for a single functional state organisation, on the one hand, and the legitimate demand for protection of national minorities, on the other hand, the Framer of the BiH Constitution shaped special group rights (of the constituent peoples) in a particular way. The constitutional provisions related to the special rights of the constituent peoples cannot rest on the general rules protecting national minorities and at the expense of functionality of the state.