Legal framework on freedom of religion and actual application
In 1995, the General Framework Agreement for Peace in Bosnia and Herzegovina was signed in Dayton, Ohio, after three years of war, establishing Bosnia and Herzegovina (BiH) as a de facto confederation between the mostly Catholic and Muslim Federation of Bosnia and Herzegovina, in the western and central areas of the country, and the mostly Orthodox Serbian Republika Srpska, in the north and the east. The two main regions have their own president, government, parliament, and police. A third entity, the Brčko District of Bosnia and Herzegovina, exists in north-eastern BiH, and is an administrative unit set up in 1999 run by the two other entities.
The central government has a rotating three-member presidency (Article V). Annex four of the Dayton Agreement sets out the Constitution of Bosnia and Herzegovina.
Most BiH citizens self-identify with one of the country’s three main ethnic groups: Catholic Croatians, Orthodox Serbs and Muslim Bosniaks. According to the last census (2013), Bosniaks represented 50.1% of the population, Serbs 30.8%, Croats 15.4%, Others 3.7%.
In Bosnia and Herzegovina, Church and state are separate in accordance with Article 14 of the 2004 “Law on Freedom of the Religion and the Legal Position of the Churches and Religious Communities in Bosnia and Herzegovina”.
The law provides for freedom of religion (Article 4, 1), ensures the legal status of Churches and religious communities (Article 2, 3) and prohibits any form of discrimination against any religious group (Article 2, 1). It also provides the basis for the relationship between the state and religious groups (Chapter IV).
Article 16 (1) also requires that a register of all religious groups be kept at the Ministry of Justice, while the Ministry of Human Rights and Refugees is tasked with documenting violations of religious freedom. The law recognises four traditional religious communities and Churches: the Islamic Community, the Serbian Orthodox Church, the Roman Catholic Church and the Jewish Community (Article 8, 2).
According to the law, any group of 300 adults may register to be recognised as a new Church or religious community by applying in writing to the Ministry of Justice (Article 18, 1 and 2). The Ministry of Justice is to issue a decision within 30 days of the application, and an appeal may be made to the Council of Ministers.
The law reaffirms the right of every citizen to religious education. Official representatives of the various Churches and religious communities have responsibility for teaching Religious Studies in all public and private pre-schools, primary schools, and higher-level educational establishments (Article 4, 1).
The Basic Agreement between the Holy See and Bosnia and Herzegovina was signed on 19 April 2006 and came into effect on 25 October 2007. The agreement recognises the public juridical personality of the Catholic Church (Article 2) and grants a number of rights, including the right to establish schools (Article 14, 1) and charities (Article 17, 1), providing religious education in all schools (Article 16, 1), and officially recognises the main Catholic feast days (Article 9, 1). The agreement also includes the creation of a Mixed Commission to deal with further issues (Article 18, 2). During the most recent reporting period, however, the government failed to re-establish the joint commission after the change in government. It similarly failed to re-establish the joint commission with the Serbian Orthodox Church during the same period.
On 6 January 2010, the Islamic Community submitted a draft proposal for an agreement with the state. In 2015 the draft proposal was approved by the Council of Ministers and sent to the Presidency for final approval, but the final text has not yet been implemented. During the relevant reporting period, the new government had not yet taken up consideration of the agreement.
Under communist rule, the state seized assets owned and operated by Churches and religious communities. The Law on Freedom of Religion (Article 12, 3) acknowledges this, recognising the right of religious communities to restitution of expropriated religious properties. Unlike other former Yugoslav republics, the BiH parliament has not yet legislated on the matter despite calls from the European Union to do so. There has been no progress in efforts to adopt legislation facilitating restitution during this reporting period.
The foundation of an Interreligious Council in 1997 was a turning point in the religious history of the country. Still active today, it aims to provide an authentic basis for mutual esteem, cooperation and freedom in the country.
Incidents and developments
The intimate tie between religious identity and ethnicity in Bosnia and Herzegovina often makes it difficult to distinguish the difference between ethnic and religious animosity. Incidents of hate crimes based on religion / ethnicity remained disturbingly prevalent during the reporting period.
In 2021, the Interreligious Council of BiH registered 23 reported acts of vandalism on religious buildings and three attacksagainst religious officials but said the number of actual incidents was likely much higher. Attacks reported by the council include: gunshots fired at the Aladza Mosque in Foca in February; the spray painting of anti-Christian graffiti of the walls of Saint Anthony Church in Bihac in May; vandalism of the Annunciation of the Holy Mother of God Orthodox Church and religious burial sites near Kupres in August; the vandalism of a window and graffiti on a mosque wall and Muslim cemetery in Prozoru in September; the desecration of the Church of Saint Elijah in Trebevic in September; threats against a Catholic family and vandalism of their flat in Porodici in December; the vandalism of a chapel in the Sarajevo settlement of Stup in December; the vandalism of a mosque in Trebinje also in December; the spray painting of hate speech in Prijedor in December; the looting and desecration of the St. Barbara Church in Vares in December, and the vandalism of mosques near Bugojna and Gornji Vakuf-Uskoplje also in December.
The OSCE hate crime database indicates that police have reported 15 anti-Christian hate crimes (the majority being threats and damage to property), 11 anti-Muslim hate crimes (the majority being threats and incitement to violence), one antisemitic hate crime relating to threatening behaviour, and one hate crime based on an unspecified religion or belief in 2021. Other sources in BiH report 34 hate incidents against Muslims, 25 against Christians, and five which were antisemitic in 2021. Most of the incidents involved vandalism or graffiti, several which involved the depiction of swastikas.
The European Commission further reports that 134 ethnic-related hate incidents were recorded in 2021, and eight convictions were handed down in 2021. 70 reports were also filed and 11 rulings, of which eight convictions, were handed down for hate speech in 2021.
The BiH Jewish Community also reported a significant increase in antisemitic speech online during the relevant reporting period.
While there have been several cases communicated by the European Court of Human Rights (ECHR)to the government of Bosnia and Herzegovina concerning regional and ethnic tensions, none of them directly relate to religious freedom. There have been no adverse judgments against Bosnia and Herzegovina from the ECHR in relation to religious freedom during this reporting period.
Many foreign Muslim fighters who entered during the civil war in the 1990’s to fight alongside Bosnian Muslims never left. These tend to be Wahhabi, very conservative, and receive funding from Saudi charitable foundations. This has led to disputes and clashes between more moderate, local Muslims, and the outsiders with more radical views of Islam.
Tensions remain concerning other sources of radical Islamist views. The return to BiH of Bosnian fighters who joined the Islamic State group is also a source of concern because of the incoherence between the law and the citizenship of the fighters. In January 2020, the State Presidency decided to allow its citizens to return home. At the same time, under a law that made participating in foreign wars a criminal offence, local courts tried and convicted up to 26 Bosnian IS fighters as of January 2020.
While mass migration and border issues were a significant problem during the last reporting period, the European Commission has recently praised BiH for its migration management policies which include improved local and international coordination. The Commission, nevertheless, recognised that much still needs to be done.
In the Appeal of the Justitia et pax Commission of the Bishops' Conference of Bosnia and Herzegovina on the occasion of the International Human Rights Day (December 10, 2021), they stated: "Bosnia and Herzegovina is one of the few countries in Europe without the Law on Restitution of Property. Property, confiscated by the enactment of unjust laws during the period of the socialist-communist political system, has long been sold or bought, often without its rightful owners. The disarray of legal directives in this area is also related to the issue of the new Entity Law on Survey and Cadastre. By this Law, land and property are registered to the current user or to social (municipal, city) property by simply establishing the factual situation, regardless of whether certain property was previously confiscated or nationalized or its owners were expelled and evicted during the last war."
Some media outlets have erroneously claimed that Case U 9/21, decided on 2 December 2021, related to a military ban of headscarves and the Constitutional Court felt the need to clarify. In January 2020, Emela Mujanovic, a member of the Bosnian armed forces, brought a case against the Ministry of Defence for its refusal to allow her to wear a hijab on duty. The Constitutional Court took the extraordinary step of issuing a press release clarifying that case U 9/21 dealt only with the right to wear a beard in the military.
On 9th January 2022, in the Republika Srpska, on Republika Srpska Day, which corresponds to a Serbian Orthodox holiday, numerous instances of threats and hate speech against Bosniaks were registered in the region.
The Bishops' Conference of Bosnia and Herzegovina published on 9th May 2022, a "Memorandum on the need to establish justice and social harmony and on the current state of the Catholic Church and the Croatian people in Bosnia and Herzegovina" in which they emphasize problems regarding religious freedom: "There are numerous unresolved issues in the area of the state authorities' relationship with the Catholic Church and other religious communities, among which are pastoral care in health care, pastoral work in police services and prisons, the issue of non-working days during religious holidays, health insurance for church members, the law on the return of confiscated property , compensation for the use of confiscated property, unclear tax policy regarding the non-profit activity of church legal entities, the method of financing schools and charitable church institutions, the question of the operation of charitable institutions, the legal uncertainty of goods given to the Church for use only, contesting building permits for church buildings, etc."
In May 2022, in response to efforts in the Republika Srpska to distance themselves from national oversight, the Constitutional Court ruled that entities within BiH have no right to unilaterally withdraw from existing agreements for the purpose of transferring specific competencies to the state level. The Bosnian Serb leader, Milorad Dodik, has vowed to defy the order. Moreover, government formation efforts have been hindered by the refusal of the main Croat Party (HDZ BiH) to agree to needed reforms in the election law, leading to instability of the national institutions.
During 2022, the Catholic Press Agency of the Bishops' Conference of Bosnia and Herzegovina reported several thefts and attacks on church buildings, some examples include in Banja Luka theft from the premises of the parish office; in Kakanj monuments, crosses and paintings were damaged in the cemetery chapel; six of the fourteen Stations of the Way of Cross in Drijenča were damaged.
In June 2022, 700 engraved memorials in Mostar’s partisan cemetery were destroyed in an act of large-scale vandalism.
In June 2022, the European Council affirmed its readiness to give Bosnia and Herzegovina status as a candidate country to the European Union.
Prospects for freedom of religion
Bosnia and Herzegovina is a deeply divided country and far from being economically and politically stable. In a country where ethno-religious identity is so important – and consequently divisiveness along these lines is rife - human rights are unlikely to find a fertile ground in the coming two years, including religious freedom. A United Nations poll, for example, indicated that 90 percent of respondents across all ethnic and religious groups expressed pride over their religious identity.
Incidents of ethnic zealousness, particularly from political leaders in the Republika Srpska, are leading to greater instability in the country. As religion is so closely tied with ethnicity, and the national memory regarding the Bosnian War still fresh, the prospects for religious freedom remain intimately tied to political and societal stability, to be kept under observation.
Bosnia-Herzegovina