Introduction

Article 9 of the ECHR protects the so-called forum internum, people’s inner spiritual world, which includes the thought, conscience and religion of an individual.¹⁶²⁴ This right includes the freedom of an individual to convert, i.e., to change his religious conviction or world view and the freedom – either alone or in community with others and in public or private – to manifest that religion or belief in teaching, practice, worship and observance.

Although the said right contains several elements, the freedom to manifest one’s religion is a central part of the case-law not only in BiH but also in the entire region. The reason for this is the fact that the constitutional order of the former SFRY was not inclined to the freedom of religious expression either of individuals or religious communities. Actually, there is a reason why the freedom to manifest one’s religion is experienced as one of “the most sensitive and controversial freedoms in a democratic society.”¹⁶²⁵ In addition to the aforementioned, we may conclude that religious diversity, resulting in diversities in culture and tradition in the territory of the former Yugoslavia and, in particular, in BiH, was partially the reason for the war. If nothing else, religion was instrumentalised by the warring parties in their propaganda. Moreover, some people have defined the armed conflict in BiH as a religious war.¹⁶²⁶ Although it is true that, on the one hand, multi-confessionality may make life together in a community difficult, such conclusions divert our attention from the real reasons for the conflict in BiH.

Article 9 of the ECHR and Article 2(1) of the Additional Protocol to the ECHR, which came into effect in BiH with the entry into force of the Peace Agreement, are very clear. Namely, as far as these freedoms are concerned, a threat to a peaceful life together in a multi-confessional and multi-cultural community is not related to the enjoyment of the right to freedom to manifest one’s religion and belief itself but, on the contrary, it relates to the prevention thereof.

Given that the case-law of the BiH Constitutional Court and Human Rights Chamber for BiH concerning the right to freedom of religion is not very extensive, one might think that “religious tolerance and life together” prevails in BiH, or one could think that citizens simply lack sufficient awareness, so that the real problems are not discussed openly and clearly. Nevertheless, the relevant case-law is not too narrow given that the freedom to manifest one’s religion, in a substantive sense, includes the cases in which the religious communities requested either reinstatement, construction or reconstruction of their property, as well as the protection of their cultural heritage, such as cemeteries. Such a conclusion is justified, irrespective of the fact that those cases, in principle, have been considered within the scope of the right to property and the right not to be discriminated against, and not within the scope or from the aspect of the right to freedom of religion.