The status of constituent people suppresses the status of minority

Given the unequal numerical strength of the three majority peoples, an issue arises as to whether the constituent status of one of the peoples excludes its minority status under the existing international-legal agreements, the result of which would be that members of that group could not invoke the minority status to which they would actually be entitled if they were not granted the privilege of constituent people status.

The BiH Constitutional Court addressed this issue in Case No. U 10/05. In his request for review of constitutionality, Mr. Velimir Jukić, the then Chair of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, challenged Article 26(4) of the Draft Law on the Public Broadcasting System of Bosnia and Herzegovina, claiming that the mentioned Law was destructive to the vital interest of the Croat people in Bosnia and Herzegovina.

In the applicant’s opinion, the right to freedom of expression (Article 10 of ECHR) was violated as the mentioned Law stipulated that that the Public Broadcasting System of Bosnia and Herzegovina was to be composed of three public broadcasters (one at the State level and two at the level of the Entities), whereby there was no possibility for the three constituent peoples, at the level of the Entities, to have one channel each in their respective languages. In this respect, the applicant referred to the 2002 Report of a group of experts of the Advisory Panel to the Media Division of the Director General of Human Rights of the Council of Europe, underlining that Article 10 of the European Convention not only enshrined an individual right to media freedom, but also entailed a duty to guarantee pluralism of opinion and cultural diversity of the media in the interests of a functioning democracy and of freedom of information for all. In addition, reference was made to Article 11 of the European Charter for Regional or Minority Languages with regard to a violation of the collective right to have public service broadcasting in the relevant language; Article 11 provides that national minorities may have at least one radio station and one television channel in their language. Finally, the applicant complained that the existing broadcasters of the Entities had been de facto using only the Bosnian (in the FBiH) and Serb (in the RS) languages and the BiH Law on the Public Broadcasting System did not provide the mechanisms for the implementation of the programming principles. Thus, according to the applicant, it is at the discretion of authorised personnel of the RTV Services to make decisions about each language, and whether and to what extent cultural, traditional and religious characteristics of the constituent peoples would be observed.

The Constitutional Court did not share such a view.²³⁴ A violation of the vital interests of the Croat people in Bosnia and Herzegovina cannot be derived from a violation of their right to freedom of expression. Indeed, according to the ECHR’s case law, public monopolies in audiovisual media breach this fundamental right primarily because they cannot ensure several different sources of information and a plurality of points of view. However, the present issue, as established by the Court, is not concerned with plurality of viewpoints but with the use of language. The challenged Draft Law neither excludes nor favours any language of a constituent people in BiH in relation to other languages; on the contrary, Article 26, paragraphs 4 and 5 thereof guarantee equality of the three official languages of the constituent peoples. The said Law, therefore, differs from the Framework Law on Higher Education that the Constitutional Court held to be destructive to the vital interests of the constituent peoples in Bosnia and Herzegovina, including the Croat people, too.²³⁵

In addition, the Croat people in BiH cannot invoke the rights guaranteed to minorities to create at least one radio station and one television channel in the own languages, which is the right provided for under the European Charter for Regional or Minority Languages. In order to apply the Charter, a certain group of people must be defined as a minority in the positive legislation of a state. The Croat people are not a national minority in Bosnia and Herzegovina but a constituent people. Furthermore, the purpose and the idea of the Charter is not to guarantee to the minorities, such as Croats in BiH, the rights under the Charter but its objective is to protect groups which, by reason of their minority status, lack effective protection for their language rights against domination by the languages of majority groups. In BiH, the language rights of the constituent peoples enjoy extensive protection under the Constitution and laws of Bosnia and Herzegovina. The constitutional principle of collective equality of the constituent peoples requires equal treatment of all constituent peoples by public authorities and public services in BiH and the Entities. This applies to their rights to use their own languages and to enjoy their cultural traditions.²³⁶

The argument offered by the Constitutional Court in its Decision No. U 10/05, on the face of it, seems formalistic or even contradictory: a constituent people, per definitionem, is not a minority even if it is a numerical minority. Consequently, the status of constituent people guaranteed by the Constitution excludes the minority status and the rights inherent to that status. This may, as in the present case, result in a situation where one ethnic group, because of its status as a constituent people, is deprived of special rights which they would have been entitled to from the point of view of international law as well as under the BiH Constitution (by means of the international instruments listed in Annex I thereto), if that group were a national minority. If this case is viewed in isolation, such an outcome might seem absurd. Actually, one de facto minority (a numerical minority), because of the privileged status of that group as a constituent people under the Constitution, is deprived of the right which that group would be entitled to if it had no privileged status. The logic behind the constituent status of a people, however, does not require that the minority rights be guaranteed since the Constitution, elsewhere, guarantees to the constituent peoples rights broader in scope than the rights guaranteed to minorities, starting from the right to participate in authorities up to the veto- power. In this context, the Constitutional Court holds that the rights of people, who belong to numerically smaller groups, are sufficiently protected. In this respect, the position taken by the Constitutional Court can be upheld.