“De-Ethnisation” of town names

A similar problem arose in the judicial case dealing with the names of “Serbian” towns.²³¹⁶ In the procedure of review of abstract constitutionality there have been two legal acts of the RS²³¹⁷ under review, which were enacted during the armed conflict in Bosnia and Herzegovina. Those acts changed the names or the parts of the names of towns and settlements²³¹⁸ under Serb control in a way that to those towns’ names was added the prefix “Serbian” or a change was made in some other way in order to manifest an exclusive demand of the Serb people relating to the ethnic affiliation of those towns or settlements.²³¹⁹

A similar application was submitted to the Human Rights Chamber and it only dealt with the issue of renaming the town of Foča into Srbinje. As to this application, the Human Rights Chamber could not find reasons indicating that there was a violation of the ECHR. The applicants were specifically claiming that by the act of renaming the town they were prevented from returning to their pre-war homes. The Human Rights Chamber noted that the primary aim of the applicants was to have the town’s pre-war name of Foča restored. Taking into account the aforesaid, the Human Rights Chamber established that a right to have the pre-war name restored is not guaranteed under the ECHR and therefore declared the application incompatible ratione materiae with Annex 6 of the Dayton Peace Agreement.²³²⁰

However, the BiH Constitutional Court came to another conclusion. Before that conclusion was reached, the proceedings had been considerably obstructed.²³²¹ Almost three years after the submission of the request, which means after 27 February 2004, the Constitutional Court was still unable to take a decision. Since the challenged legal acts remained in force even after the enactment of the BiH Constitution there was no obstacle for the BiH Constitutional Court to take a decision in the relevant case.²³²²

The Court established that the challenged provision on changing the names of towns is discriminatory against the refugees and displaced persons of other ethnic backgrounds and against their right to return to their pre-war places of residence (Article II.4 in conjunction with Article II.5 of the BiH Constitution). Moreover, the Court considered that the challenged provisions were in contravention of the positive constitutional obligation to treat equally all constituent peoples.²³²³ Renaming the towns by adding the prefix “Serbian” before the names of towns or municipalities, i.e., replacing the previous name with the new one, which is associated with affiliation to the Serbs as a group, or by abolishing the previous prefix “Bosnian” in some cases implies that there is an intention to consider the related towns and municipalities exclusively as Serbian.²³²⁴ The BiH Constitutional Court could not find or recognise a reasonable justification for the unequal treatment resulting from these provisions. If the names of the towns are changed in order to clearly indicate that certain places are situated in the Republika Srpska and that they are now inhabited by the Serb population as a majority, then such an approach would be against the constitutional principle of equality of the three constituent peoples in BiH.²³²⁵ By putting the prefix “Serbian” before the names of towns or municipalities the fact is ignored that in many cases the current structure of the population is a result of the armed conflict and migrations caused by the armed conflict and it does not match the population structure from the beginning of the conflict. That is not in accordance with one of the basic goals of the peace agreement, in other words it is against the principle of the return of refugees and displaced persons to their pre-war homes. Even though this change in the names of towns and municipalities could be viewed as a desire to have those names be different from similar names of towns and municipalities in the territory of the FBiH, this goal could be easily achieved by choosing a prefix or name which is ethnically neutral. In any case, the constitutional arguments used in this regard were explicitly against choosing names that would indicate affiliation with any ethnic group, in the instant case with the Serb ethnic group. Therefore, in the instant case there is no reasonable relationship of proportionality between the means used and the goals sought to be achieved.²³²⁶

First, the BiH Constitutional Court ordered the RS National Assembly to harmonise Article 11 of the Law on the Territorial Organisation and Local Self- Government and Articles 1 and 2 of the Law on the Town of Srpsko Sarajevo with the Constitution of Bosnia and Herzegovina within three months of the date of publication of the decision. Since the order was not compiled with, the BiH Constitutional Court, by its decision of 22 September 2004, made the mentioned provisions ineffective, whereby the previous provisions, as an interim solution, became valid again. The fact that the unconstitutional provisions were not amended because the mechanism for the protection of “vital national interest” was used in the Council of Peoples of the Republika Srpska was of no relevance.²³²⁷ At some later point the legislative authority of the Republika Srpska enacted the Law on Amendments to the Law on the Territorial Organisation of the Republika Srpska,²³²⁸ whereby it adjusted the basic law to the decision of the BiH Constitutional Court and, for instance, the town of Foča, which had been renamed into Srbinje during the armed conflict, was given back its previous name.