Human dignity, freedom and equality;

“Based on respect for human dignity, liberty, and equality”

The first line of the Constitution’s Preamble determines three cornerstones for Bosnia and Herzegovina after Dayton: the Framer of the Constitution relies on human dignity, freedom and equality as generally accepted fundamental and central constitutional values. Thus, the State does not serve its own purpose but it rather justifies its own existence by protecting those greatest values. The said provisions, in Article II of the Constitution, have been largely incorporated within specific fundamental rights, and in Article X.2, a protective clause has been incorporated whereby it is forbidden to abolish or reduce the said rights by any prospective amendments to the Constitution.

The BiH Constitution declares that respect for human rights is a fundamental prerequisite for a free and democratic society.¹⁰¹ An accurate definition of the term “human dignity” raises new issues since that term, particularly in the era of globalization, bears an impression of a specific view of the world possessed by the person using that specific term. “Naïvely referring” to philosophers, philosophic traditions, natural law, etc., will not bring us a step further.¹⁰² In defining the said term, one should primarily rely on the applicable constitution. Only if such an approach achieves success should one think about “examining whether philosophic definitions of ‘human dignity’ term have a minimum in common, which may become a basis for interpretation of the term”.¹⁰³

Despite the relativity of the term “human dignity” depending upon the point of view, it may be helpful, when defining the said term, to take into consideration current attempts of other states with the same or similar culture.

If one gives a comparative view of the Western states whose constitutions are dedicated to the effective protection of fundamental rights, the legal state and democracy, a comparison with the definitions of human dignity in the democracies of Western Europe must be made. This is particularly true if one takes into account the circumstances under which the BiH Constitution was adopted, which testifies to the will for radical change aimed at achieving the mentioned values along with departing from communism and authoritative forms of government. Any limitation in favour of supremacy of state interest over the protection of the individual, which someone might try to justify by the tradition of Yugoslav communism, has no more room in a constitution whose provisions on the protection of human rights and fundamental freedoms use the highest international standards as a point of reference. The European Convention for the Protection of Human Rights and Fundamental Freedoms was proclaimed applicable under the constitution, which practically elevated the complete international humanitarian law to the level of the constitution.

From the aspect of comparative law, several attempts of international constitutional courts and human rights courts will be mentioned in defining this term. For example, the German Federal Court (Bundesverfassungsgericht), in its judgment “Eavesdropping” (Abhörurteil), stated as follows:¹⁰⁴

“[…] In giving an answer to the question what exactly the human dignity mean, we must be cautious not to interpret this pathetic word only within its highest meaning assuming that the human dignity is violated only if the treatment by authorities, while enforcing laws, constitutes the lack of respect a human being is entitled to as a person, in other words if a ‘disrespectful treatment’ is in place. If, nevertheless, we do that we will downgrade the meaning of Article 79, paragraphs 3 of the Basic Law [guaranties of the eternal validity of German Basic Law, which is similar to Article X.2, the second sentence of the BiH Constitution]105 relating to prohibition of re-introduction of, for example, torture, pillar of shame or methods of Third Reich. Such a limitation is not in accordance with the concept and spirit of the Basic Law. Article 79, paragraph 3, in conjunction with Article 1 of the Basic Law has a substantially more specific content. Accordingly, the Basic Law acknowledges that a free personality of a human being, his/her values and qualities are on the highest scale of fundamental value system. All state authorities are obliged to respect and protect a human being along with all his/her values and individuality. A human being must not be ‘inhumanly’ treated as an object, even if it is done with good intentions and not because of the lack of respect for his/her values as a person. The First Senate of this Court formulated the aforesaid by stating that it is contrary to human dignity to consider a human being as a mere object being subjected to the actions of state authorities or to dispose of him/her in the name of state authority without much thinking, (the notes on current and major jurisdictions are to follow- authors’ remark). The aim of the aforesaid is in no way to point to the direction in which the violations of human rights may be found. This is a principle whose roots are in Article 1 of the Basic Law and this principle sets directly the criteria”.¹⁰⁶

The Charter of Fundamental Rights of the European Union,¹⁰⁷ in its first chapter (“Human Dignity”), has also placed human dignity at the top of the catalogue of fundamental rights. Article 1 of the Charter states: “Human dignity is inviolable. It must be respected and protected.” In the explanations to the Charter, which had been originally worked out under the auspices of the European Convent (Europäischer Konvent), and then published in the “Official Journal of the European Communities”, No. 2007/C 303/02 of 14 December 2007, as to the obligation to respect human dignity, the following can be inferred: the dignity of the human person is not only a fundamental right in itself but constitutes a real basis of fundamental rights. None of the rights laid down in the Charter may be used to harm the dignity of another person, and the dignity of a human person is a part of the substance of the right laid down in the Charter. It must therefore be respected, even where a right is restricted.

The right to self-determination is also an element of human dignity since, according to the constitution, a person serves one’s own purpose and one has one’s own values, which, again, presumes the freedom of a person to make decisions about one’s own life. Nevertheless, for the purpose of complying with the principle of fairness (Article II.3 of the BiH Constitution) and the obligation to limit human rights, the freedom of an individual must be harmonized with the fundamental rights of other persons.

Human dignity, from the perspective of the classic protective function of fundamental rights, must be respected by State authority at all levels. That is to say, human dignity must be respected by the State of “Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities” (Article II.6 of the BiH Constitution). It has already been stated, on page 37 et seq., that this obligation of respect for human rights may have a normative character exceeding the requirements under Article II of the BiH Constitution. For example, human dignity plays a significant role when dealing with the issue of whether the media may be excluded from criminal trials.¹⁰⁸ Also, in resolving an issue of lawfulness of deprivation of liberty against someone’s will, human dignity serves as a landmark.¹⁰⁹ Furthermore, both the use of force and measures undertaken as a reaction to the behaviour of a person deprived of liberty, when unnecessary, may jeopardise the principle of human dignity and violate Article 3 of the ECHR.¹¹⁰

Unlike Article 1, paragraph 1 of the German Basic Law,¹¹¹ the obligation to respect human dignity, according to line No. 1 of the BiH Constitution, does not contain an independent subjective human and constitutional right only. The Preamble may indeed have a normative character (see, page 37 et seq.), and therefore, may be applied as a criterion for interpretation, as already stated in the decisions of the BiH Constitutional Court. In the Decision of the Constitutional Court U 19/01, the Constitutional Court, inter alia, finds that the provisions of line 1 of the Preamble have been concretised as human rights and fundamental freedoms according to Article II.3, 4, 5, as well as according to Article II.2 in conjunction with the ECHR. Provided that in examining certain human rights those principles have already been taken into consideration, then, there will be no need for special control of the violations of the principles laid down in the Preamble (paragraph 35). The fact that ‘the obligation to respect human rights’ may be a criterion for interpretation follows from the ECHR as well, which is proved by the appropriate case-law of the European Court of Human Rights, for example, in relation to Articles 3 and 8. Accordingly, respect for human rights is the very essence of the ECHR.¹¹²

While referring to the obligation of respect for human rights, the European Court of Human Rights, considers that, for example, corporal punishment¹¹³ constitutes a disrespect for human dignity; the same applies to long lasting doubts cast on the state of mind of a person’s mental health which are subsequently proved to be ill-founded;¹¹⁴ lengthy proceedings, which, as such, are unacceptable for medical reasons;¹¹⁵ lack of punishment for rape within marriage;¹¹⁶ non-issuance of personal documents in individual cases;¹¹⁷ use of force against a person deprived of liberty, which is not absolutely necessary due to the person’s behaviour;¹¹⁸ in exceptional cases, deportation of seriously ill foreign citizens after being released from prison;¹¹⁹ and conditions of detention which are incompatible with human dignity.¹²⁰