Serbian, Bosnian and Croatian languages as official languages

Neither provisions of the Entity constitutions regulating the issue of official languages could get a pass mark after taking into consideration the right to freedom of movement and residence (Article II.3(m) of the BiH Constitution) and the right to return (Article II.5 of the BiH Constitution) in conjunction with the principle on prohibition of discrimination (Article II.4 of the BiH Constitution). With reference to Article I.6(1) of the Federation of BiH Constitution, the BiH Constitutional Court additionally relied on the European Charter for Regional or Minority Languages from 1992.²³⁰³

Article 7 of the RS Constitution²³⁰⁴ used to read:

“The Serbian language of ijekavian and ekavien dialect and the Cyrillic alphabet shall be in official use in the republic, while the Latin alphabet shall be used as specified by the law.”

In regions inhabited by groups speaking other languages, their languages and alphabet shall also be in official use, as specified by law.”

Article I.6 of the Federation of BiH Constitution²³⁰⁵ reads (paragraph 1 was the only one challenged):

“(1) The official languages of the Federation shall be the Bosnian and the Croatian languages. The official script will be the Latin alphabet.

2. Other languages may be used as means of communication and instruction.

3. Additional languages may be designated as official by a majority vote of each House of the Legislature, including in the House of Peoples a majority of the Bosniak Delegates and a majority of the Croat delegates.”

Taking the analysis of the provisions of Entity Constitutions as a starting point, as well as the judicial practice, the BiH Constitutional Court came to a conclusion that the area of application of the term “official language” in the Republika Srpska is very wide. Namely, it significantly extends beyond the public area, in other words it also includes the areas which generally do not fall within the sphere of public authority, such as the media and economy.²³⁰⁶ For the purposes of the interpretation of this provision, the legal provisions on the existence of other languages are less important than the territorial limitation to the areas inhabited by groups speaking other (non-Serbian) languages. Taking into account the pre-war ethnic composition of the population on the one hand and the obligation of safeguarding the right of return within the meaning of Article II.5 of the BiH Constitution on the other, no reference is to be made to the regions inhabited by groups speaking other (non-Serbian languages) unless the languages that have just emerged after the territorial segregation during the return process are taken into consideration. Accordingly, Article 7, paragraph 2 of the RS Constitution is inherently discriminatory and is in contravention of the positive obligations of the Republika Srpska to protect the right to return in conjunction with the right to freedom of movement and residence. Moreover, this provision is in contravention of Article I.4 of the BiH Constitution since it prevents the guaranteeing of economic freedom of movement of goods, services, people and capital.²³⁰⁷ In principle, the BiH Constitutional Court has acknowledged that regulating the issue of official languages may be the Entities’ legitimate aim. However, given the implications of such arrangements on the subjective right of individuals and given the introduction of a market economy (the Preamble of the Constitution) there is an implicit, but also necessary responsibility of Bosnia and Herzegovina in this regard. Pursuant to Articles

8 through 13 of the European Charter for Regional or Minority Languages from 1992, that responsibility implies that, in the form of a framework law, the minimum standards have been established for the regulation of language issue. All the more so, the legislative authority of Bosnia and Herzegovina must consider the effective possibility of equal use of Bosnian, Croatian and Serbian languages not only in the institutions of Bosnia and Herzegovina but also at the level of Entities and at the level of their administrative units operating within the bodies of legislative, executive and judicial authorities, as well in the public life. The highest standards of Articles 8 through 3 of the European Charter for Regional or Minority Languages from 1992 should serve as a guideline for the mentioned three languages and, accordingly, the establishment of private schools would not be sufficient to meet the said standards. The lower standards referred to in the European Charter could – taking into account the appropriate conditions – be sufficient only for other languages.²³⁰⁸

The Constitutional Court used these standards, i.e., this reasoning, in a proper manner in respect of the challenged provision of the FBiH Constitution. Additionally, the decision relies on the lack of participation of other ethnic groups in the legislative processes and that aspect has been already mentioned in a different context. Article I.6(3) of the FBiH Constitution gives the right of veto to Bosniaks and Croats when deciding on the introduction of other languages as official languages, which constitutes a violation of the right of other groups, which is referred to in Article 15 of the Framework Convention for the Protection of National Minorities and Article 1, paragraph 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. Moreover, paragraph 3 of Article I.6 gives no legislative authority to the official use of other scripts since paragraph 1 determines that the Latin script is in official use together with the Croatian and Bosnian languages and thus it has made a distinction between language and script.²³⁰⁹