Balance between ethnic and civil concepts (citoyenneté)

The Court did not accept an objection by the Republika Srpska that Article 1 of the RS Constitution defines neither the Serb people as constituent people nor the Republika Srpska as a Serb nation-state exclusively. Article 1 of the RS Constitution, i.e., its challenged provisions, in view of the Constitutional Court, is a compromise between the ethnic and non-ethnic principles of legitimacy. In addition, the RS Constitution, on the face of it, contains no ethnic differentiation as to the composition of the State authorities. Therefore, this compromise formula together with this institutional structure might indeed allow an equal representation of all citizens.²¹⁹ However, non-discrimination of an individual cannot be the same as collective equality of ethnic groups, nor can it be a substitute for the latter. Taking into account other constitutional provisions as well, the RS Constitution places the Serb people in a favourable position, which cannot be legitimatised since the Serb people, at the level of the Republika Srpska or at the level of Bosnia and Herzegovina, are not in the factual position of an endangered minority that must preserve its existence. Consequently, collective privileges of the Serb people are in violation of the principle of collective equality mentioned in the Preamble, and in favour of this constituent group.²²⁰

As to the compromise formula between the principle of ethnicity and the principle of non-ethnic citizens, the same applies to the FBiH Constitution. Recognition of “Others” in the FBiH Constitution is indeed a considerable difference but it is only a half-hearted substitute for the status of a constituent people.²²¹ While “Others” are proportionally represented in several governmental bodies of the Federation, Bosniaks and Croats enjoy various privileges in other cases, including the veto-power.²²² Such special treatment would not stand a test related to the principle of collective equality, (firstly) as to the individual right to vote under Article 3 of the First Additional Protocol to the ECHR in conjunction with non-discrimination (secondly), and (thirdly) as to the equal representation under Article 5 of the Convention on the Elimination of all Forms of Racial Discrimination (Annex I to the BiH Constitution). The favourable treatment of Bosniaks or Croats is not necessary for their protection and, consequently, cannot be justified within the meaning of the mentioned Conventions.²²³ The institutional safeguard clauses (guarantees), with the purpose of power sharing in consensus democracy, are indeed legitimate, but must not entirely exclude the individual right to participate,²²⁴ as it is, to a certain extent, in the FBiH Constitution.²²⁵ Thus, the very essence and effectiveness of the free expression of the opinion of the people in the choice of legislature as well as the principle of collective equality are breached as the FBiH Constitution provides for veto- powers on behalf of ethnically defined “majorities”, which are in fact minorities, and are thus able to enforce their will on the parliament.²²⁶

In his concurring opinion on the Decision taken in Case No. U 5/98-III, Judge Danelius agrees with the final decision in its entirety though he holds that the paragraph of the Preamble reading “Bosniaks, Croats, and Serbs as constituent peoples“ has no normative force and, therefore, cannot be deemed to be assessment criteria. However, he also considers that the challenged provisions are unconstitutional for being in violation of the prohibition of discrimination under Article II.4 of the BiH Constitution in conjunction with the right to return under Article II.5 of the BiH Constitution. Namely, the notion “constituent people”, referred to in Article I.1(1) of the FBiH Constitution, is not sufficiently clear and specific and, besides, it has a symbolic significance and is emotionally coloured. The designation of Bosniaks and Croats as constituent peoples might also imply a special role of these two peoples in creating the Federation as well as it could reasonably make the Federation appear primarily as a territory populated by Bosniaks and Croats, which may well have a dissuasive effect particularly on Serb refugees and displaced persons wishing to return to the Federation.