Kantor Center for the Study of Contemporary European Jewry

Bosnia-Herzegovina

The following law excerpts appear in the publication "Legislating for Equality, A Multinational Collection of Non-Discrimination Norms. Vol. I: Europe":

CONSTITUTIONAL PROVISIONS

 

Hereinafter are the relevant provisions in the Constitution of Bosnia and Herzegovina of 14 December 1995, as amended up to 2009. [1]

 

Article 1 - Human Rights

"Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms. To that end, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework Agreement."

 

Article 2 - International Standards

"The rights and freedoms set forth in the European Convention for the Protection of Human

Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and

Herzegovina. These shall have priority over all other law."

 

Article 3 - Enumeration of Rights

"All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include:

a) The right to life.

b) The right not to be subjected to torture or to inhuman or degrading treatment or punishment.

c) The right not to be held in slavery or servitude or to perform forced or compulsory labour.

d) The rights to liberty and security of person.

e) The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings.

f) The right to private and family life, home, and correspondence.

g) Freedom of thought, conscience, and religion.

h) Freedom of expression.

i) Freedom of peaceful assembly and freedom of association with others.

j) The right to marry and to found a family.

k) The right to property.

l) The right to education.

m) The right to liberty of movement and residence."

 

Article 4 - Non-Discrimination

"The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

 

Article 5 - Non-Discrimination

"All refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 to the General Framework Agreement, to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void."

 

Article 6 - Implementation

"Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in paragraph 2 above."

 

Article 7 - International Agreements

"Bosnia and Herzegovina shall remain or become party to the international agreements listed in Annex I to this Constitution."

 

Article 8 - Cooperation

"All competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to: any international human rights monitoring mechanisms established for Bosnia and Herzegovina; the supervisory bodies established by any of the international agreements listed in Annex I to this Constitution; the International Tribunal for the Former Yugoslavia (and in particular shall comply with orders issued pursuant to Article 29 of the Statute of the Tribunal); and any other organization authorized by the United Nations Security Council with a mandate concerning human rights or humanitarian law."

 

 

2.           HUMAN RIGHTS RELATED LEGISLATION

 

 

LAW ON FREEDOM OF RELIGION AND LEGAL POSITION OF CHURCHES AND RELIGIOUS COMMUNITIES IN BOSNIA AND HERZEGOVINA OF 17 MARCH 2004[2]

 

Article 1

"(…) This Law guarantees the right of all to freedom of conscience and religion in conformity with the Constitution of Bosnia and Herzegovina (hereinafter referred to: the Constitution), the highest international standards of human rights comprised in the international declarations and conventions of freedom of conscience and religion, being an integral part of the Constitution of Bosnia and Herzegovina."

 

Article 2

"For the purpose of this Law:

1. Discrimination on the grounds of religion or belief means any exclusion, restriction, preferential treatment, omission or any other form of differentiation on the grounds of religion or belief having for its purpose or which may bring about - directly or indirectly, intentionally or unintentionally - the revocation or diminution of the recognition, equal enjoyment and exercise of human rights and fundamental freedoms in civil, political, economic, social and cultural matters.

2. The making of distinctions or preferences by churches and religious communities when they judge it necessary to comply with religious obligations or needs shall not be considered as discrimination on the grounds of religion or belief.

3. Churches and religious communities are communities, institutions or organizations of believers founded in accordance with their own precepts and regulations, doctrines, beliefs, traditions and practices, and of which the legal personality is recognized and which are registered in the Register of Churches and religious communities in Bosnia and Herzegovina."

 

Article 4

"1. Everyone has the right to freedom of religion or belief, including the freedom to publicly profess or not a religion. Also, everyone has right to adopt or change his or her religion, and the freedom - individually or in community with others, in public or private - to manifest his religion or belief in any manner in worship, practice and observance, maintenance of customs and other religious activities. Everyone shall have the right to religious education, which shall be provided solely by persons appointed so to do by an official representative of his Church or religious community, whether in religious institutions or in public and private pre-school institutions, primary schools and higher education which shall be regulated according to the specific regulations.

2. Churches and religious communities shall not, when teaching religion or in other actions, disseminate hatred and prejudices against any other Churches and religious communities or its members, or against the citizens of no religious affiliation, or prevent their freedom to manifest in public their religion or belief."

 

Article 5

"1. All discrimination based upon religion or belief as defined in Art. 2.1. of this Law is prohibited.

2. The following acts are also prohibited:

a. Attacks upon or insults against religious officials;

b. Attacks against or damage to the religious buildings or other property of Churches and religious communities;

c. Activities or actions aimed at the dissemination of religious hatred against any church or religious community or its members;

d. The denigration or ridiculing of any religion;

e. The public use of religious symbols, signs, attributes or the name of a church or religious community without the consent of the said church or religious community;

f. The formation of associations of religious officials or believers without the consent of the relevant church or religious community authorities, nor such existing associations, established without relevant church authority, may exist without such a competent consent.

g. Incite, encourage or call for religious hatred and prejudices."

 

 

3.                    PENAL CODE PROVISIONS

 

 

CRIMINAL CODE OF JUNE 2003, AS AMENDED UP TO 2010[3]

 

 

Article 3 - Basis and Limits of Criminal Justice Compulsion

(1)   "Criminal offences and criminal sanctions shall be prescribed only for acts threatening or violating personal liberties and human rights, as well as other rights and social values guaranteed and protected by the Constitution (…) and international law (…).

(2)  (…)."

 

Article 20 -Criminal Offences not Subject to the Statute of Limitations

"Criminal prosecution and execution of a sentence are not subject to the statute of limitations for criminal offences that, pursuant to international law, are not subject to the statute of limitations."

 

Article 163 - Inciting National, Racial or Religious Hatred, Discord or Hostility

"(1) Whosoever publicly incites and inflames national, racial or religious hatred, discord or hostility among constituent peoples and others who live in the Federation of Bosnia and Herzegovina shall be punished by imprisonment for a term of between three and ten years.

(2) Whosoever commits an offence under paragraph 1 above by employing duress and torture. Jeopardizing the safety of any person, exposing national, ethnic or religious symbols to derision, damaging other people's belongings, desecrating monuments or graves, shall be punished by imprisonment for a term of between one to eight years.

(3) Whosoever perpetrates the criminal offence referred to in paragraph (1) of this Article by abuse of office or authority shall be punished by imprisonment for a term between one and ten years.

(4) Whosoever commits an offence under paragraphs 2 above by abuse of his official capacity, or if the offence results in riots, violence or any other serious consequence to the co-existence of the constituent peoples and others who live in the Federation of Bosnia and Herzegovina, shall be punished by imprisonment for a term of between one and ten years."

 

Article 177 - Infringement of the Equality of Individuals and Citizens

"(1) Whosoever, on the grounds of race, skin colour, national or ethnic background, religious, political or other belief, sex, sexual orientation, language, education, social status or social origins, denies or restricts the civil rights of any person as provided for by any international agreement, the Constitution, any law, other regulation or general act of the Federation of Bosnia and Herzegovina or, whosoever, on the grounds of these differences or background or other status, grants unjustified privileges or favours to any person, shall be punished by imprisonment for a term of between six months and five years.

(1)   (…).

(2)   Any official or responsible person in any of the institutions of the Federation of Bosnia and Herzegovina who, in contravention of the regulations on the equal use of languages and alphabets of the constituent peoples and others living on the territory of Bosnia and Herzegovina, restricts or denies any citizen the free use of his language or alphabet while addressing bodies or institutions of the Federation of Bosnia and Herzegovina, trade companies or other legal persons in order to exercise his rights, shall be punished by a fine or imprisonment for a maximum term of one year.

(3)   (…)."

 

Article 279 - Breach of Right to Equal Treatment at Work

"Whoever denies or limits the right all of citizens to equal treatment at work throughout the Federation of Bosnia and Herzegovina, shall be punished by a term of imprisonment of between three months and three years."

 

Article 287 - Aggravated Theft

"(1) Whoever commits the criminal offence of theft (Article 286, Theft, paragraph 1) shall be punished by a term of imprisonment of more than six months but not more than five years if a larceny are committed:

(a)-(d) (…)

(2) (a)(…)

b) where the stolen property  has a religious purpose, or the property has been stolen from a religious or another building, or premises that are used for religious purposes;

c) where the stolen property is of cultural value or is an object of special scientific, artistic, historical or technical significance, or is a part of public collection, protected private collection, or has been  on display to the public.

(3) The punishment of a fine or a term of imprisonment of not more than three years shall be imposed on whoever commits any theft (Article 286, paragraph 2) in the manner and in the circumstances under paragraph 1 or 2, item 2 and 3 of this article.

(4) The punishment of a term of imprisonment of more than one but not more than eight years shall be imposed on whoever commits theft (Article 286, paragraph 1[4]) as a member of a group, or whilst in possession of a weapon or dangerous articles for the purposes of theft."

 

Article 378 - Disturbing Religious Services

"(1) Whoever disturbs or prevents the performance of religious ceremonies, shall be fined or punished by a term of imprisonment of not more than  one year.

(2) Whoever commits an offence under paragraph 1 of this article by the use of force or the serious threat of use of force, shall be punished by a term of imprisonment of between three months and three years."

 

Article 379 - Defiling a Grave or a Corpse

"(1) Whoever without authority digs over, demolishes, damages or defiles a grave or another place of interment, shall be fined or punished by a term of imprisonment of not more than one year.

(3)  Whoever without authority excavates, removes, damages, destroys of hides a corpse or a part thereof, or the ashes of the deceased, or defiles a corpse, shall be fined or sentenced to up to a maximum of two years’ imprisonment."

 

 

4.                     NON-DISCRIMINATION

 

 

LABOUR CODE OF 27 OCTOBER 1999, AS AMENDED UP TO 2003[5]

 

Article 5

"A person seeking employment, as well as a person who becomes employed shall not be discriminated based on race, colour, sex, language, religion, political or other opinion, national or social affiliation, financial situation, birth or any other circumstances, membership or non-membership in a political party, membership or non-membership in trade union, and bodily or mental problems regarding engagement, education, promotion, work conditions and requirements, cancelling the employment contract and other issues deriving from employment. In terms of paragraph 1 of this Article, the following differences are not excluded:

1. differences made in good intentions, based on certain requirements which relate to a specific job;

2. differences made in good intentions, based on the incapability of the employee to carry out the work envisaged for a specific job or to complete the necessary specialization for work, provided that the employer or the person providing specialization have made a reasonable effort to adjust the work or the training for that employee or to provide another job or specialization, if possible; 

3. activities which aim to improve the position of the person who is in an unfavourable economic, social, educational or physical situation. In case of a breach of the provision in paragraph 1 and 2 of this Article:

1. the person whose rights have been violated, may, due to the violation of his rights, bring an action before the competent court; 

2.in case the plaintiff submits clear evidence of discrimination which has been prohibited by the provisions of this Article, the defendant is obliged to submit evidence that such a differentiation has not been made based on discrimination; 

3) if the court establishes that there is reasonable doubt, it shall impose, in order to secure the application of the provisions of this Article, including employment,  returning to work, securing or re-establishing of all rights arising from employment which derive from the employment contract".

 

 

ANTI DISCRIMINATION LAW OF 23 JULY 2009[6]

 

 

Article 1 - Subject of the Law

"(1) This Law shall provide a framework for implementation of equal rights and opportunities to all persons in BiH and shall define a system of protection from discrimination.

(2) In compliance with the BiH Constitution and international standards related to human rights and fundamental freedoms, this Law defines responsibilities and ob-ligations of legislative, judicial, executive authorities in BiH and legal persons and individuals with public authorities in BiH, (hereinafter "competent authorities in BiH”) shall ensure protection, promotion and creation of conditions for equal treatment."

 

Article 2 - Discrimination

"(1) Discrimination, in terms of this Law, shall be every different treatment including every exclusion, limitation or preference based on real or assumed features to-wards any person or group of persons on grounds of their race, skin colour, language, religion, ethnic affiliation, national or social origin, connection to a national minority, political or any other persuasion, property, membership in trade union or any other association, education, social status and sex, sexual expression or sexual orientation, and every other circumstance with a purpose or a consequence to disable or endanger recognition, enjoyment or realization, of rights and freedoms in all areas of public life.

(2) Prohibition of discrimination shall be applied to all public bodies, all natural and legal persons, in public and private sector, in all spheres, especially: employment, membership in professional organisations, education, training, housing, health, social protection, goods and services designated for public and public places together with performing economic activities and public services."

 

Article 7

Central Institution for Protection of Discrimination

"(1) Central institution competent for protection from discrimination is the Ombudsman for Human Rights of Bosnia and Herzegovina (hereinafter: BiH Ombudsman).

(2-6) […]

(7) Competent institutions in BiH shall be obliged to cooperate with the BiH Ombudsman and deliver their responses and notifications in written within the deadline defined by the BiH Ombudsman and report on efficiency of recommendations given in order to end discrimination."

 

 

5.                      EQUALITY BODIES / OMBUDSMAN

 

 

LAW ON THE HUMAN RIGHTS OMBUDSMAN, OF 22 JANUARY 2004, AS AMENDED UP TO 2006[7]

 

Article 1

"1. The Human Rights Ombudsman of Bosnia and Herzegovina is an independent institution set up in order to promote good governance and the rule of law and to protect the rights and liberties of natural and legal persons, as enshrined in particular in the Constitution of Bosnia and Herzegovina and the international treaties appended thereto, monitoring to this end the activity of the institutions of Bosnia and Herzegovina, its entities, and the District of Brčko, in accordance with the provisions of the present Law."

 




[3] Unofficial translation, consolidated version as published in the "official gazette of Bosnia and Herzegovina” no. 36/03, 37/03, 21/04, 69/04, 18/05 and 42/10, kidly provided by the Ombudsman of Bosnia and Herzegovina.

New criminal legislation against cybercrime and holocaust denial, and a revised bill to ban all fascist and neo-fascist organisations and the use of their symbols in Bosnia and Herzegovina was approved by the council of ministers in March 2010 and forwarded to the parliament, before which it remains pending. Available at http://www.coe.int/t/dghl/monitoring/ecri/country-by-country/bosnia_herz...

 

[4] Article 286 refers to theft.

[6] Translation kindly provided by the Ombudsman of Bosnia and Herzegovina.