Republika Srpska as a “State of Serb people”

In its Third Partial Decision in Case No. U 5/98, the BiH Constitutional Court established that Article 1 of the RS Constitution,²²⁹¹ except for the collective rights, has also violated the principle of the prohibition of discrimination of individual rights under Article II.4 of the BiH Constitution in conjunction with the right to freedom of movement and residence (Article II.3(m) of the BiH Constitution), the right to freedom of religion (Article II.3(f) of the BiH Constitution), the right to property (Article II.3(k) of the BiH Constitution) and the right to return (Article II.5 of the BiH Constitution and Annex 7 to the Dayton Peace Agreement), as well as some in conjunction with certain agreements under Annex I to the BiH Constitution.²²⁹² The BiH Constitutional Court reached the same conclusion by analysing Article I.1(1) of the Federation of BiH Constitution, in which case freedom of religion was overlooked in error. Additionally, the mentioned provision of the Federation of BiH Constitution is also in violation of Article 5(c) of the International Convention on the Elimination of All Forms of Racial Discrimination from 1965.²²⁹³

Taking into account the instructions from Article II.4 of the BiH Constitution, the principle of prohibition of discrimination also applies to other rights under Article II, in particular under Article II.5 of the BiH Constitution in conjunction with Annex 7 to the Dayton Peace Agreement, as well as to the agreements under Annex I to the BiH Constitution. It is applicable even on a larger scale than Article 14 of the ECHR. In particular, the Entities are obliged to abolish any law or administrative practice containing discrimination or whose application may result in a certain form of discrimination. In the opinion of the Court, the discriminatory intent or effect may be established in different forms: a law is obviously discriminatory if it explicitly creates distinctions among or treats differently certain groups on the basis of some criteria such as language, religion, ethnicity, etc., and there are no justified reasons for such treatment. The application of a discriminatory law, which is per se neutral, will be considered discriminatory and the same applies to the neutral application of a neutral per se law which is passed with discriminatory motive. It will be considered as a discriminatory behaviour if the past historical de iure discrimination is maintained or perpetuated based on the State authorities’ intentional acting or omitting to act. Thus, the Entities have a positive obligation on the basis of Article III.2(c) of the BiH Constitution to meet the requirements of the creation of legal certainty and protection of persons under their jurisdiction and they also have an obligation, based on Article II.1 of Annex 7 to the Dayton Peace Agreement, to create economical, political and social perspectives which will contribute to the voluntary return and harmonious reintegration of refugees and displaced persons without giving preferences over any specific group. The last positive obligation from Article I.3(a) of Annex 7 to the Dayton Peace Agreement was made effective in the way that it protects national groups and ethnic communities, i.e., the minorities from administrative acts of administrative authorities and private persons.²²⁹⁴

In the opinion of the Constitutional Court, despite the fact that it contains the principle of prohibition of discrimination, the illusory neutrality of the RS

Constitution has failed to satisfy those standards. It is true that Article 1 of the RS Constitution is not prima facie discriminatory.²²⁹⁵ However, this provision demonstrates its discriminatory nature indirectly since, as a constitutional ground, it is used by the public authorities as a ground for perpetuating the discrimination that had occurred during the armed conflict (in particular ethnic cleansing) as well as to neglect the obligation of creating a favourable climate for the return of refugees and displaced persons. According to the statistical data relating to the pre-war ethnic composition of the population in Republika Srpska territory, as well as the ethnic composition of returnees,²²⁹⁶ the BiH Constitutional Court pointed to the fact that Article 1 of the RS Constitution has a discriminatory effect within the meaning of Article 13(a) of Annex 7 to the Dayton Peace Agreement because the results of the previous de iure discrimination in the form of ethnic cleansing in the Republika Srpska are still in place. Moreover, such an example of discriminatory behaviour may be found in the composition of the RS Government, judiciary and police.²²⁹⁷ The relevant statistics, which allow for the same conclusion to be made about the FBiH, are referred to by the BiH Constitutional Court in respect of Article I.1(1) of the Federation of BiH Constitution.²²⁹⁸

Referring to the relevant reports of various international organisations operating in the field, the Constitutional Court concluded that:

“… following the entering into force of the Dayton Agreement, there was and still is a systematic, long-lasting, purposeful discriminatory practice of the public authorities of the Republika Srpska in order to prevent the 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 on grounds of ethnic origin only, let alone the failure “to establish necessary political, economic and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without giving preference to any particular group”, which follows from the right of all refugees and displaced persons to freely return to their homes of origin […].”²²⁹⁹

In addition,

“[…], an almost ethnically homogeneous executive and judicial power of the Republika Srpska is a clear indicator that this part of the provision of Article 1 with the wording “The Republika Srpska is the state of the Serb people” must be taken verbatim and provides the necessary link with a purposeful discriminatory practice of the authorities with the effect of upholding the results of past ethnic cleansing […].”²³⁰⁰

Taking into consideration the explicit wording of the text of the Constitution that “democratic governmental institutions and fair procedures best produce peaceful relations within a pluralist society”, ethnic segregation can never be a legitimate aim with respect to the principles of democratic societies, 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.²³⁰¹

In his separate (concurring) opinion, Judge Danelius focused on questioning an evident discriminatory effect of Article I of the BiH Constitution since it is incompatible with the constitutional obligation on creating a climate for the refugees and displaced persons in order to be able to return to their pre-war homes, which is a basic goal of the BiH Constitution. Neither can the protective designation of Serbs in the Republika Srpska as a State- building people be justified by the fact that the Serbs in the Republika Srpska are currently the majority population.²³⁰²