Role of the Orthodox Church

The BiH Constitutional Court was to examine the constitutionality of Article 28, paragraph 4 of the RS Constitution,²³¹⁰ which reads as follows:

“The State shall materially support the Orthodox church and it shall co- operate with it in all fields and, in particular, in preserving, cherishing and developing cultural, traditional and other spiritual values”.

In the opinion of the BiH Constitutional Court, giving privileges to the Orthodox Church in general terms does not create Constitution-related dilemmas, neither does the Constitution of BiH or other international law mechanisms, including the ECHR, guarantee the right of religious communities to equal treatment or an exclusive obligation that the State and church should be separated. Accordingly, establishing a state church is not in contravention of Article 9 of the ECHR, provided that specific guarantees are ensured with respect to the individual freedom of religion.²³¹¹ Despite the aforesaid, the challenged provision from the RS Constitution does not reflect the standard of a democratic and pluralistic society. Article 28, paragraph 4 of the RS Constitution serves – as practice shows²³¹² – as a constitutional basis for the creation of a public atmosphere in which the right to freedom of expression and religion is prevented.²³¹³ The safeguards from paragraphs 1 and 2 of Article 28 of the RS Constitution, when it comes to individual freedoms and the equality of religious communities, can neither remove this deficiency nor can they guarantee the effectiveness of the right to freedom of religion within the meaning of the ECHR.²³¹⁴ Also, giving clear privileges to the Orthodox Church through the provision of material assistance by the Republika Srpska, as it is stipulated under Article 28, paragraph 4 of the RS Constitution, cannot be justified within the constitutional meaning and therefore, it is inherently discriminatory.²³¹⁵