消除种族歧视委员会审议波斯尼亚和黑塞哥维那的报告消除种族歧视委员会（部分翻译）

消除种族歧视委员会

2015年5月1日

消除种族歧视委员会今日完成审议波斯尼亚和黑塞哥维那关于落实《消除一切形式种族歧视国际公约》条款的第九至第十一次合并定期报告。

波斯尼亚和黑塞哥维那人权与难民事务副部长普莱德拉格·约维奇（Predrag Jović）介绍了报告，并表示一个独特的人权监察员机构已经成立，该国正在努力解决在宪法里被称为“其他人”的少数群体的境况；欧洲人权法院在芬奇-塞蒂奇案（Finci-Sejdić）的决策中认为该条款具有歧视性，因为它偏袒组成民族：波斯尼亚人、塞尔维亚人和克罗地亚人，并给予他们优于其他族裔群体的特权和便利。2009年的反歧视法基于欧盟标准，保护公民在所有工作和生活领域中免受歧视，免受任何形式的骚扰、性骚扰、暴行、隔离或煽动歧视。尽管已努力解决难民和境内流离失所者的权利问题，但在可持续地返乡方面（包括提供恢复正常生活方式的基本条件）依然存在许多困难。

委员会专家们关切地指出，国家宪法违反了《消除一切形式种族歧视国际公约》，因为它实际上依据族裔归属而把全国的少数群体排除在大部分政治生活领域之外。专家们说，组成民族不断表现出来的不同愿望对长久和平构成了精神和物质障碍，他们还询问了修订宪法并落实欧洲人权法院决定的努力。专家们问及少数群体在2013年人口普查中的地位，这项调查只提供了自称为波斯尼亚人、塞尔维亚人和克罗地亚人的选项；他们还询问了支持难民和境内流离失所者返乡的战略和政策。尽管当局已采取了一些积极措施，罗姆人仍在教育、住房、就业和获得基本服务方面受到歧视。

担任国家报告员的委员会专家杨钦俊（Yeung Sik Yuen）在总结发言中表示，更广泛的多元文化新途径是在多样性中团结的方式，波斯尼亚和黑塞哥维那应该坚持其反对歧视的决心，这样一来，长久的和平与进步才会自然产生。

波斯尼亚和黑塞哥维那人权与难民事务助理部长兼代表团团长萨利哈·朱德尔亚（Saliha Djuderija）表示，委员会的结论性意见将被纳入未来的活动方案和正在筹备的人权战略中。

波斯尼亚和黑塞哥维那代表团成员包括以下部门代表：人权与难民事务部，司法部，传播管理局，数据局，波斯尼亚和黑塞哥维那常驻联合国日内瓦办事处代表团。

委员会将在2015年5月4日（周一）上午10点举行下一次公开会议，与来自德国和丹麦的非政府组织举行一场非正式会议，两国和苏丹的报告将在下周接受审议。

报告

波斯尼亚和黑塞哥维那的第九至第十一次合并定期报告请见这里：（CERD/C/BIH/9-11）。

Presentation of the Report

SALIHA DJUDERIJA, Assistant Minister for Human Rights and Refugees and the head of the delegation, welcomed the Committee Experts and introduced the members of the delegation of Bosnia and Herzegovina.

PREDRAG JOVIĆ, Deputy Minister for Human Rights and Refugees, introducing the report, said that Bosnia and Herzegovina had established a unique institution of Ombudsman for Human Rights, while the Gender Equality Agency strove to ensure the elimination of all forms of discrimination against women in the country. The commission for human rights, immigration, refugees and asylum operated within the Parliamentary Assembly with the mandate of protection of human rights and fundamental freedoms enshrined in the Constitution. Efforts were being made to resolve the situation of minorities which under the Constitution were defined as “others”, which the European Court of Human Rights in its Finci-Sejdic decision had found to be discriminatory, because it favoured the constituent peoples: Bosniaks, Serbs and Croats, and granted them special privileges and advantages compared to other ethnic groups. Seventeen of those ethnic groups had been recognized by the 2003 Law on the Protection of National Minorities. In 2009, Bosnia and Herzegovina had adopted its Anti-Discrimination Law, based on European standards; the law protected citizens from discrimination in all areas of work and life, and from any form of harassment, sexual harassment, mobbing, segregation or incitement to discrimination. Bosnia and Herzegovina was working to resolve the issue of “two schools under one roof”, which was a striking example of segregation and division of students because of ethnicity.

Propagating ideas of racial discrimination and hatred was sanctioned as a criminal offence of incitement to national or religious hatred in the criminal legislation, and Bosnia and Herzegovina was strongly committed to fighting terrorism, which was also criminalized. Roma were the largest national minority in the country and the most vulnerable by all parameters; the Action Plan was in place to address the issue of Roma in the areas of housing, employment and health care. Although the rights of refugees and internally displaced persons had been addressed for many years, particularly in the area of property rights, many difficulties still existed in sustainable return, including in the provision of basic conditions to resume normal life style. The European Convention on Human Rights and Fundamental Freedoms was directly applied in the legal system of the country, and the principle of non-discrimination was embedded in the Constitution of Bosnia and Herzegovina, Constitution of entities and of lower levels of government. The Law on Prevention of All Forms of Discrimination had been passed in 2009, while all premises of the International Convention on the Elimination of All Forms of Racial Discrimination were reflected in the criminal legislation, prescribing criminal penalties for war crimes, crimes against humanity and genocide, incitement to commit criminal acts of genocide, and destruction of cultural, historical and religious monuments, thereby establishing the legislative mechanism to protect human rights and fundamental freedoms for all without distinction as to race, sex, language, religion, etc.

Questions by the Country Rapporteur

YEUNG SIK YUEN, Committee Expert and Country Rapporteur, noted that before 2010, there had been three Ombudsmen, one at the State level and two at entity levels. The creation of the unique institution of Ombudsman of Human Rights had also incorporated the ethnic origin of members of this institution, and that point needed to be cleared up during the discussion. The Dayton Agreement of 1995 had established the State Constitution which was questionable for being in breach of the Convention. The three ethnic groups – Bosniaks, Serbs and Croats, were referred to in the Constitution as the “constituent peoples”, who alone could serve as President or in the House of Peoples, effectively excluding national minorities from a significant area of political life on the basis of ethnic belonging, which was in direct breach of article 5 of the Convention. In spite of provisions for power sharing at the highest level among the three main constituent groups, there was constant manifestation of different aspirations and a rise of nationalist movements, creating a mental and material blockade to long-lasting peace. The population of Bosnia and Herzegovina came from many different ethnic backgrounds and many cultural differences existed; but there were also core values which were common to every human being and on which may rest the pillars of successful nation building.

Mr. Yuen raised the problems encountered by the returnees to their home, and asked about how national minorities could self-identify in the 2013 census which offered the options of Bosniak, Serb, Croat or not expressing ethnicity; about measures to amend discriminating laws after the European Court of Human Rights delivered its decision in the Finci-Sejdić case in December 2009; progress in implementing the Law on Prohibition of Discrimination; an update on strategies and policies for return of refugees and internally displaced persons; and the segregation of minorities. The Rapporteur took positive note of the prohibition in the Constitution of racial and other forms of discrimination and asked how it was effectively implemented, considering that the Constitution itself promoted and established discrimination instead of banning it. How often had the Law on Prohibition of Discrimination been evoked and how many cases of discrimination had been reported? Discrimination between the constituent peoples and others was an issue of concern and Mr. Yuen spoke about the lack of the implementation of the decisions of the European Court of Human Rights in the Finci-Sejdić and Zornić cases, and the fact that the Ombudsmen were appointed from the ranks of the constituent peoples only. Despite some positive steps to address the situation of Roma, they continued to suffer discrimination in education, housing, employment, and access to basic services. Internal displacement and the return of internally displaced persons to places of origin were of concern, and the country Rapporteur asked about measures taken to solve that problem, and whether the law had been passed which would oblige all State institutions to give 2 per cent of their budget for internal displacement and return issues.

Questions by the Committee Experts

Efforts to change the Constitution and implement the decisions of the European Court of Human Rights had ended in 2012, and a Committee Expert inquired what had been done in this area since then, about harmonization of the law on citizenship of entities with the State law, and about the registration of Roma in the 2013 census.

What were prohibited grounds for discrimination and how was the Law on Protection from Discrimination implemented in practice, particularly with regard to protection from discrimination on political grounds?

Another Expert noted the political and financial pressure that was exerted on the Communication Regulatory Agency which could compromise its independence and asked who was applying that pressure.

The Experts asked for further explanation on the situation of “two schools under one roof” and suggested that an independent account of history was needed to ensure appropriate history teaching in schools.

A Committee Expert said that the Committee understood paradoxes and challenges created by the Dayton system, noting that facing the challenges opened the way to finding the solutions and engaging in open discussions was useful. The delegation was asked to explain the purpose of the commission for human rights, immigration, refugees and asylum which operated within the Parliamentary Assembly, and to expand on the existing machinery to fight discrimination, including the function and indicators of the effectiveness of the Ombudsman.

There were still attacks against internally displaced persons who returned to their places of origin; how many were there and what action was being taken to investigate them? What was the role of political discourse and the media in those attacks? How many returnees had to flee again because of this violence? Could the delegation comment on the situation of displaced Roma, who were victims of multiple discriminations, both as Roma and as internally displaced persons?

The delegation was asked to explain the constitutional status of international agreements, including the applicability of the Convention on the Elimination of All Forms of Racial Discrimination in the national legislation; to explain how minority issues were incorporated in the training of judges and prosecutors; and to comment on the offence of mobbing, what it entailed and the reasons behind the increase in the number of those offences.

It was difficult to speak of discrimination in a State where the Constitution was formed as a part of a peace agreement that ended the war and which established a system in which ethnicity was the basis of governance. Bosnia and Herzegovina was trying to address those issues, but it was very difficult to promote the necessary amendments. Many people in Bosnia and Herzegovina, particularly the young, regretted that the national census of 2013 did not offer the option to self-identify simply as Bosnian, instead of being forced into the three predefined ethnic categories, an Expert commented.

Experts also inquired about the structure of the education system, whether a national system existed and if textbooks existed for the whole of the country as opposed to textbooks written by different parties; and if any progress had been made in the area of national reconciliation and economic revival and development.

A Committee Expert took positive note of the laws that protected human rights and fundamental freedoms and the corresponding machinery that had been put in place and, noting that the Committee was interested in the intersection of race and gender, asked the delegation about the situation of women, particularly elderly and minority women.

What was the value of the Dayton Peace Agreement within the legal system of the country and its status within the Constitution, particularly with regard to its Annex VII? Did this political system assert a direct link between the citizen and the State, or did they have to go through ethnicities in order to relate to the State? Was there a plan in place to rebuild trust between communities, and was there a policy to overcome acts of hate and discrimination at the national level? Did the Constitution recognize the freedom of conscience?

Replies by the Delegation

The Dayton Agreement was a general framework agreement for peace in Bosnia and Herzegovina which contained several chapters, including the Constitution and the Annex VII, which referred to the return of refugees and internally displaced persons. The Constitution recognized three constituent peoples – Bosniaks, Serbs and Croats. The European Court of Human Rights had ordered Bosnia and Herzegovina to amend its Constitution, but that required the consent of all ethnic groups, including national minorities. An action plan had been prepared for the implementation of the Finci-Sejdić judgement and it was hoped that the Parliamentary Commission would start its implementation soon; it was important to mention that the right of national minorities to stand for elections at local levels had been fulfilled.

The Convention on the Elimination of All Forms of Discrimination prevailed over the national legislation, as was defined by the Constitution.

The delegation explained that any citizen could lodge a complaint with the Constitutional Court for violations of the Convention, while political parties could require action by the Constitutional Court if they believed that entity laws or the laws of the Brčko District were in violation of the Convention. Several such complaints had been lodged and the Constitutional Court had ordered entities to amend their legislation, for example in relation to flags and coats of arms. The legal system in Bosnia and Herzegovina was not as complex as some thought, and it was possible for the citizens to use the protective mechanisms and lodge complaints with the Office of the Ombudsman or the Constitutional Court. Everyone agreed on the need to change the Constitution, and a solution to that issue had to be found. Harmonisation of the legislation was being conducted because of the desire of Bosnia and Herzegovina to join the European Union, said the delegation, stressing the importance of coordination for the highly decentralized governance system. The constitutional order was an obstacle to the full enjoyment of minority rights.

The Brčko District was a part of the territory of Bosnia and Herzegovina, established by the decision of the Arbitrary Court in 2000, and was a strategic crossroad in terms of land communications and international borders. It had the population of 95,000 with 50,000 living in the city. The Brčko District was a unit of local self-governance under the direct jurisdiction of Bosnia and Herzegovina, and used all three local languages on equal footing.

The anti-discrimination legislation was an excellent tool in the protection against discrimination; the data collected on its implementation would show its usefulness. The primary source of information on discrimination cases were the cases before the European Court of Human Rights: in 2008 some 1,000 cases had been lodged, while in 2013, 871 cases had been filed against Bosnia and Herzegovina on different grounds. Most of the cases related to old foreign currency savings, and there was an increase in cases related to slow operation of the judiciary and to deportation of foreign national, property rights, non-enforcement of judgement, election law, and others. A significant number of cases had been filed with the Constitutional Court: more than 3,000 cases in 2012 and more than 4,000 had been filed with the Constitutional Court, most of which related the right to fair trial and the right to peaceful enjoyment of property. A number of cases filed related to various forms of discrimination such as mobbing and labour-related issues. The Law also allowed the mechanism for legal aid and the local non-governmental organization Vaša prava (Your Rights) provided free legal aid on issues of antidiscrimination, refugees, asylum, Roma and others.

The delegation explained that the general unemployment rate was 31 per cent for men and 46 per cent for women, and was even higher among the youth. About 20 per cent of the members of the Parliament were women; while an increase in the representation of women in legislature had been seen, Bosnia and Herzegovina had not yet reached European levels.

Parliamentary Committees had a dual role, including receiving individual complaints of citizens or groups of citizens on issues of discrimination. During the period 2013-2014, there had been 171 reported cases concerning hate crime, while 47 indictments, involving 56 persons, had been filed.

Judges and prosecutors received training in European standards, including the European Convention on Human Rights, while in 2014 some 700 judges and 200 prosecutors had been trained in human rights protection. Training in Prosecutorial and Judicial Training Centres were compulsory. The pressure exerted on the Regulatory Agency for Communication was financial in nature as it did not have the ability to dispose of its own money.

Defamation had been decriminalized in 2003, a delegate explained.

The 2013 population census had started by a trial census which had been conducted on a sample with the objective of testing all instruments to be used in the actual census, including law, questionnaire, understanding of the questions and the capacity of municipalities to implement the census. The trial census had been accepted by all. The census had been conducted using traditional methods, including one-to-one interviews, and had been monitored by international group of monitors and received technical support by the European Union. The sensitive issues in the census were religion, language and ethnicity; respondents had a constitutional right not to declare their affiliation with a certain ethnic group. National minorities had an option to declare their ethnicity in the census. The final data of the census would be published in mid-June 2015, and only then the data on the structure of the population would be available.

The delegations stated that Bosnia and Herzegovina joined the Roma Inclusion Decade in 2008, prior to which it had adopted a national plan on education, employment, housing, access to basic services. By the end of 2014, 12 million euros had been invested in the housing for Roma, while more than 1,000 families had benefitted from infrastructure improvement projects. Unemployment of Roma was a serious issue in the country, and they remained among the most vulnerable categories of the population. Annex VII of the Dayton Agreement on return had been applied equally to all, but Roma had been affected differently because many of the settlements and housing units where they used to live were illegal, so their rehabilitation and return there was difficult.

The amendment on the Law on Ombudsmen had been presented in 2014. It sought to incorporate the recommendations from the consultations carried out during the appointment of the Ombudsmen and to ensure political and financial independence and adequate staffing and capacity to implement the mandate. The Office was comprised of three persons from the ranks of the constituent peoples, but the Consultative group working on the amendment would try to open the posts to national minorities as well. Recommendations made by the Ombudsmen were sent to the relevant authority which had an obligation to comply; in 2013 more than 300 recommendations had been addressed to different levels of Government.

The Revised Strategy on the Implementation of Annex VII and the Framework Programme of Return 2009-2014 aimed to complete the progress of return of the two million persons expelled during the war to their pre-war homes, including the completion of construction of housing units for returnees and the reintegration of returnees. The cost of the Framework Programme was 650 million euros and it was important to ensure the funding and so complete the return. The European Development Bank financed the closure of 221 collective centres in which more than 7,000 people still lived.

Responding to questions, a delegate explained that the “two schools under one roof” existed in only three cantons in the Federation. That method to ensure that children were educated in their mother tongues. All schools in Bosnia and Herzegovina taught in both Latin and Cyrillic script.

The question whether all children in Bosnia and Herzegovina could learn one history should be sent to the Conference of Ministers of Education, which harmonised education policies and strategic plans for education development. In 2010, the Council of Ministers had adopted its revised action plan on the education of Roma to ensure their equal inclusion in primary and secondary education and so address the rather high dropout rates of Roma students; some of the actions included sensitisation of parents on their legal obligation to ensure the attendance of their children in school, as well as provision of free textbooks, transport, school meals and scholarships. One of the key problems was the lack of Roma teachers.

Questions by the Committee Experts

An Expert said that different criminal codes existed in the country, which opened a possibility for discrimination because certain acts, crimes and penalties could be defined differently in the two Entities.

An Expert asked whether the courts had the authority to repeal the laws that were inconsistent with international human rights instruments; about the status for the recommendation to eliminate segregation in educational structures; and about religious education in public schools.




Responses by the Delegation

The standards of the Convention on the Elimination of All Forms of Racial Discrimination had been incorporated into the national law; the Constitutional Court and the Office of the Ombudsmen could invoke the Convention in their judgements and recommendations. There were four criminal codes in the country, and most of their provisions had had been harmonized; rape and sexual assault were currently subject of amendments and harmonization.

Religious education was taught in school as an optional course, and there were no scorecards which punished students who did not attend.

In their follow-up questions, Committee Experts noted that the 17 national minorities were recognized in the law and asked about the procedure to have a minority legally recognized.

Could more information be given about the participation of the Roma Board in the decision-making at different levels of government?

Minorities were defined by European and international standards, and their acknowledgement in the law was a very complex process, which required a group wishing to be acknowledged as a new minority to fulfil several criteria, including language and culture. The Brčko District had the best model of education and represented a good practice to study multicultural approach to education without segregation. Schools operated on a unique curriculum, teachers were trained to work with students of all three ethnic groups, they taught in one language while students had the right to study and speak in their own languages. The Ombudsmen were preparing a report on segregation and discrimination in school, which would be published in 2015.

Questions by the Committee Experts

In a further series of comments and questions, Experts welcomed the alignment of the anti-discrimination law with European standards and asked whether Bosnia and Herzegovina was considering joining the European Strategy for the Integration of Roma. The delegation was asked to explain how it targeted Roma women particularly in the efforts to eliminate double discrimination and improve their socioeconomic empowerment; the implementation by the authorities of the recommendations made by the Office of the Ombudsman.

YEUNG SIK YUEN, Committee Expert and a Country Rapporteur, congratulated the delegation for taking their obligations under the Convention very seriously and for quality answers they provided to the Committee Expert, and asked the delegation to explain how recommendations on elimination of discrimination were being implemented.

Response by the Delegation

The delegation stressed that the debate on ethnic affiliation was related to the participation in the election process. The new and updated Roma strategy was in place and was fully in alignment with the 2020 European Strategy, which was in line with the capacity of the State to deliver. The challenge was to engender the change in a community which was not interested in that change and this was the next step for the authorities.

“Two schools under one roof” was not a problem to the authorities of the three cantons where that was still a practice, as they saw that as a way to ensure education in mother tongue. They wished to stop treating it as a problem and that was the reason why the recommendations on the ending of segregation in schools were not being implemented.

Concluding Remarks

YEUNG SIK YUEN, Committee Expert and a Country Rapporteur, thanked the delegation for the fruitful dialogue and said that a number of issues remained outstanding in the compliance with the Convention. Some of those were recurring, while a number of the Committee’s recommendations made earlier had not been implemented. The new and broader avenue of multiculturalism was a way to unity in diversity. Bosnia and Herzegovina should maintain its resolve against discrimination, so that long-lasting peace and progress would naturally flow.

JOSE FRANCISCO CALI TZAY, Committee Chairperson, thanked the delegation for replying to a huge number of questions which the Experts had asked in a spirit of constructive dialogue.

SALIHA DJUDERIJA, Assistant Minister for Human Rights and Refugees of Bosnia and Herzegovina, thanked the Committee Experts for their involvement and commitment to the shared and common goal of preventing discrimination. The recommendations would be very important and would be included in the programme of activities for the future and in its Human Rights Strategy that was being prepared.

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