Irish Centre for Human Rights Blog

Đermana Kurić is a Research Associate on the BILQIS ERC project at the Irish Centre for Human Rights, University of Galway. Previously, she served as a Regional Adviser on Combating Racism, Xenophobia, and Discrimination at the OSCE’s Office for Democratic Institutions and Human Rights in Warsaw, Poland (2016-2021) where she focused on addressing intolerance and discrimination against Muslims across 57 participating States.

Amila Svraka-Imamović is a Senior Teaching and Research Assistant, School of Law, University of Sarajevo. She holds a PhD in Comparative Law. Her research interests include the Right to Freedom of Religion or Belief.

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As we write this, another round of parliamentary discussions on the new draft law on the Court of Bosnia and Herzegovina (B&H) is taking place. This new version of the law, which describes the functions of the national court system, is an important step on the way towards the democratisation of B&H, the establishment of better legal security, and a more consistent and harmonised judicial practice throughout the whole country in line with EU requirements. The law is also an important part of systemic interventions meant to support the country’s further accession towards the EU membership.

Absolute Prohibition of Headscarves/Hijabs

Discussion about this law, again, revealed a number of preexisting socio-political tensions in B&H. One such topic is the headscarf in B&H judiciary. In the current draft of the law Article 14 puts restrictions on, so called, “Symbols of Affiliation” and proposes under Article 14, Item (1) that “judges, while performing official and judicial duties, shall not display any symbols or content of religious, political, national, or other affiliation, nor shall they engage in any acts that include prayer or religious gestures or expressions.” Further, under Article 14, Item (2) it stipulates that “the President of the Court and the President of the Appellate Division of the Court shall, by special rules, prescribe rules of conduct and dress for employees and parties in accordance with paragraph (1) of this Article.”

The draft law does not define what exactly “Symbols of Affiliation” are, nor what the meaning of “religious gestures or expressions” is, nor have these formulations been clear and/or present in national legislation up till now. Their interpretation and sanctioning is hence left to the discretion of the President of the Court and the Appellate Division, creating space for unharmonized practice, arbitrary and selective application of the law, and thus going against the basic principles of legal security.

Such a restrictive text in relation to headscarf/hijab excludes potentially not only female judges, but also all other court officers (from cleaners, typists, and interns, to those holding the highest judicial and other positions), as well as the parties before the court. This would probably mean that headscarf/hijab wearing women who are lawyers or legal associates, plaintiffs, defendants, etc. (as well as other citizens) would be expected to remove the “Symbols of – Religious, National, Ethnic or Other – Affiliation” – which would potentially violate the principles of fair proceeding as well as their right to access to justice, a point which has already been criticized in ECtHR case of Hamidović v. B&H.

Opinion of the Venice Commission

The currently proposed text is similar to a previous draft of the same law that was discussed in 2023. At that time the Venice Commission in its opinion on the draft law stated that such wording of this Article “may potentially interfere [with] freedom of religion and belief as guaranteed by the ECHR”. The Commission stipulated that “the case-law of the European Court of Human Rights leaves a wide margin of appreciation to the Member States in deciding whether and to what extent a limitation on the right to manifest one’s religion or beliefs is ‘necessary.’” While recognising the considerable margin of appreciation, the Commission also stressed that Member States “may only impose restrictions that serve a legitimate purpose and are necessary in a democratic society, even within that margin.”

What counts as “legitimate purpose” is already listed under Article 9 of the Convention. Those are limitations deemed necessary in a democratic society which are in the “interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

In practice this means that B&H as a Member State would need to prove that this proposed restriction of the individual right to religion or belief is “necessary,” and also prove how this serves one of the specific listed grounds of public safety, protection of public order, health or morals, or the protection of the rights and freedoms of others.

The doctrine of “margin of appreciation” is meant to allow for some space for Member States to manoeuvre in implementing the rights and the principles of the Convention in line with specific circumstances existing in every Member State. This doctrine allows the State of B&H to adopt solutions which would be best for the specific circumstances within B&H, which do not necessarily have to be the same solutions adopted for same issues in other Member States.

Intersectional Discrimination of Headscarf Wearing Women

This is not the first time that headscarves are discussed in the B&H judiciary. Namely, in 2015 High Judicial and Prosecutorial Council of B&H (HJPC), chaired at that time by Milan Tegeltija, adopted the now infamous Conclusion on Prohibition of “Religious Symbols” and ignited a wide social and academic debate on this issue. Briefly, the result of this debate was that this issue is ill-defined and, because of that, headscarf-wearing Muslim women are systematically and institutionally discriminated against. This is also evident from successive judgements of the lower level courts of Brčko and Tuzla in which women were denied employment due to their headscarves. For example, a young intern/volunteer who had the highest score during recruitment was not allowed to volunteer at the Court in Brčko District because of her hijab. Similarly, a candidate for a position of a typist in the Municipal Court in Tuzla was excluded, and another candidate with a lower score was hired because of “an obstacle hindering her from being hired” i.e., “she wears a headscarf (hijab).”  

During this period, contrary to the claims of many experts and commentators, it is evident that such legal ‘solutions’ result in disproportionate discrimination against headscarf-wearing women. This was, for example, established in the ECtHR judgement in the case of Hamidović v. B&H from 2017. In order to establish the facts of this case (concerning the wearing of a skullcap while giving evidence before the Court) the ECtHR requested information from the State of B&H on the previously mentioned HJPC Conclusion on Prohibition of “Religious Symbols” and its circular requesting all courts and prosecutors in the country to inform it whether they had come across any cases of judges, prosecutors or court officers wearing religious symbols in the course of their duties. This judgement, under II.A.14., explicitly lists that the only “offenders” in question were in fact “one judge and approximately ten court officers” who wore headscarves. Also, from current parliamentary debates about this we see that discussions about this particular Article are again only about the headscarf (6:23).

This evidence of intersectional (double) discrimination and exclusion of Muslim headscarf-wearing women concurs with the opinion previously expressed by Gender Equality Agency of B&H. In 2016, Saša Gavrić, on behalf of Sarajevo Open Centre (SOC), submitted a request demanding an examination of violations of the Law on Gender Equality vis-à-vis the actions of HJPC for those employed in judicial institutions. The Request by SOC states:

Although in principle this is a neutral norm that is not targeting only one religious community, this decision is at its core comprised of clear elements of indirect discrimination, since the norm as it is defined, affects mostly and maybe exclusively Muslim women who wear headscarves, since this religious symbol is clearly and directly visible as opposed to other religious symbols.

Following this request, the Gender Equality Agency of B&H issued an opinion stating:

[T]his contested decision made by HJPC … is not in accordance with the Law on Gender Equality of B&H, as it constitutes indirect discrimination according to Article 4.2 and in relation to Article 13.1.h of the Law on Gender Equality of B&H which prohibits sex based discrimination at work and in labour relations.

The Agency also stated that this argumentation is contrary to the ECHR which in B&H is, as per Constitution, implemented directly and “its norms have priority over all domestic legislation.” The Agency further stated:

[M]ore concretely, this decision of the HJPC violates Article 9 of the Convention which is about the freedom to manifest religion or belief.” Finally, the Agency concluded that “wearing of the headscarf due to religious or other beliefs cannot represent a threat to public safety, public order, health or morals, or the rights and freedoms of others, and therefore there is not cumulative fulfilment of the conditions listed under Article 9 of the Convention.

This opinion largely overlaps with another Recommendation issued by the Ombudsman Institution of B&H (No. Ž–SA-06-1212/11) in relation to a case from 2012 (headscarf in the Armed Forces of B&H), which addresses “multiple discrimination based on religion and sex.” Therefore the Ombudsman Institution of B&H ordered the Ministry of Defence of B&H to “undertake all measures and activities in order to remove the discriminatory practice … so that everyone would be on an equal footing in terms of the exercise of their right to work and in relation to work.”  The case of the headscarf in the Armed Forces of B&H is currently awaiting its judgement before the ECtHR since the Constitutional Court of B&H didn’t take into account the opinion of the Ombudsman Institution of B&H and dismissed claims of discrimination (with one dissenting opinion of judge Mirsad Ćeman).  

Exclusion of Women as a Path to Impartial Judiciary

The argument of “neutrality” or “impartiality” is very often invoked as a justification for a violation of women’s right to freedom of religion of belief. But, as Open Society Justice Initiative claims, neutral regulations such as these are not in fact neutral and they result in indirect and disproportionate exclusion of one specific group: i.e. headscarf-wearing women. Neither “neutrality” nor “impartiality” are listed as legitimate grounds for restrictions of this right as per the Convention. And the Law on Judicial and Prosecutorial Council in Articles 56 and 57 has already defined as potential disciplinary offences instances wherein judges and prosecutors are “acting with bias or prejudice while carrying out official duties due to a party’s race, colour, sex, religion, ethnic background, national origin, sexual orientation or social and economic status.”  Therefore, if the intention of this Article is to allow only for official symbols of the State of B&H to be displayed on the buildings of the courts, official premises or walls of the official institutions, then this should be sanctioned with a different legal formulation that regulates this specific purpose without violating in the process individual human rights guaranteed by the Constitution.

Having said all this, there are already several available judgements that allow for more inclusive solutions that would ensure a more balanced approach. For example the ECtHR judgement in Hamidović v. BiH, supported the right to wear a skullcap while giving evidence before the court, or B&H Constitutional Court decisions U-8/17 and U-9/21, which supported the right to have a beard for officers in Border Police and Armed Forces of B&H. Along with these judgements, another important judgement establishing discrimination based on religion or belief, and allowing for a more inclusive approach was the one related to a case of a Catholic nun, sister Janja Martina Katović, who was originally prevented from becoming a Principal of a public preschool educational institution in Glamoč due to her being a nun in a habit. Of note here is the fact that the lawyer who defended her before the court, Mr. Davor Bunoza, is currently serving as Justice Minister of B&H and seems to support the current discriminatory version of the text of the Law on Court as being legitimate and in harmony with “the opinion of the Venice Commission”.

With all this in mind, instead of providing a more inclusive and balanced solution, the current version of Article 14 in the draft law on the Court of B&H only exacerbates disproportionate and indirect discrimination for women who wear or would like to wear a headscarf/hijab, and whose professional development is linked to legal professions and judicial institutions.

With such institutional and intersectional discrimination B&H, instead of empowering and encouraging these women, is marginalising and leaving them without jobs or opportunities for further professional development, thus also causing them financial and psychological harm and forcing them to depend on others and/or their families. Such legislation with these institutional and systemic barriers will also, in the long run, affect their educational and carrier paths and will result in decreasing knowledge of judicial and legal proceedings and overall access to justice. Additionally, the legislation and its underpinning logic will decrease social and community trust in the judiciary of B&H.

Delete or Harmonise

It would be much better if the draft Article 14 was either completely deleted, or harmonised with another Article 14, namely the ECHR one on prohibition of discrimination. In this way it would be possible to strike a balance between an individual right to freedom of religion or belief as a fundamental human right, and a legitimate need to prohibit behaviours that could harm the impartiality and dignity of the court and/or professional conduct.

In order to harmonise this Article with the ECHR the text should allow for judges, employees and parties to exercise their right to freedom of selection of personal dress in accordance to their religion or belief, providing of course that such dress is not hindering regular and professional conduct, and is in line with the rules on judicial robe and official identification documents. Rules for conduct and dress that would be prescribed should include the principles of the right to freedom of religion or belief, equality and non-discrimination. This would allow for the Court to preserve necessary professional and institutional neutrality, without the need to prevent a group of citizens from exercising their constitutional and fundamental right. This might be a bit more of a complex path, but it is the path that in the long run will ensure greater public trust in the impartiality and inclusivity of the judiciary of Bosnia and Hercegovina.