According to constitutional law, the position of a citizen-individual in Bosnia and Herzegovina is generally reduced to the individual achieving his or her rights and freedoms through membership in a collective that enjoys special protection under constitutional law. Special importance is given to the individual's nationality since the Constitution of Bosnia and Herzegovina itself ascribes constitutiveness to collectives-nations rather than to citizens-individuals.

Apart from ethnic groups, Bosnian-Herzegovinian society also has religious communities that, to a large extent, overlap the ethnic groups in their scope and content and also have a collective dimension in a political sense. Religious communities aim to wholly encompass and be equated with the political (and constitutional law) category of the ethnic community. Therefore, religious communities attempt to influence all aspects of the life and work of their members and there have even been attempts to recognise and practice religious law. These attempts do not originate exclusively with religious communities but also with the responsible bodies trying to find a compromise between religious and civil law when passing legislature. For example, in passing the new Family Law it was suggested that religious and civil marriage ceremonies be made completely equal, with divorce carried out in accordance with the regulations of civil law. Recently, a suggestion was heard in a legislative body that adultery be declared a crime. Although this suggestion was not made by invoking religious rules, it was certainly motivated by religious considerations of morality. This type of thinking on the part of those who propose laws is without a doubt the result of the great political influence of religious communities as they cosy up to or even maintain direct connections with the political elite.

The fact that the BiH Constitution does not have a direct regulation on secularism as a constitutional principle raises the issue of the relationship of religious and civil law in the constitutional law system of Bosnian-Herzegovinian society. The constitutional law framework regulating this relationship also determines whether a religious community as a legal person or an individual as a member of a religious community can obtain legal protection of rights under the jurisdiction of regular BiH courts by exclusively invoking the provisions of religious law when dealing with rights simultaneously included in the legal norm of religious and civil law. Also, it must be asked if the constitutional law framework which grants autonomy to religious communities allows these communities to appeal to regular courts using exclusively their own religious norms in order to support their civil rights.

Freedom of Religion in General

The freedoms guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the European Convention) are among the foundations of a democratic society. Religious freedom is one of the key elements in forming the believer's identity and lifestyle. At the same time, it is also important for atheists, agnostics, sceptics and those who are undeclared since pluralism, an integral part of any democratic society, depends on the protection of the freedom of thought, conscience and beliefs, including religion (verdict of the European Court of Human Rights Kokkinakis). The European Court of Human Rights also emphasised that the right to religious freedom, guaranteed by the European Convention, excludes any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs are legitimate (verdict Manoussakis). Religious freedom includes not only the right of an individual to believe or not believe without any state interference, but also the right to the public manifestation of religious beliefs, that is, the freedom of public religious expression as inseparable from religious beliefs but can be restricted in certain prescribed cases.
Evaluating the role of religion in democratic societies, the European Court of Human Rights defined the role of the state as “a neutral and impartial organiser of the practising of the various religions, denominations and beliefs" (verdict Refah

Therefore, the European Court of Human Rights concluded that any conduct which fails to respect that principle cannot be accepted as being part of the freedom to manifest one's religion and is not protected under Article 9 of the European Convention since it is aimed at "the destruction of the rights and freedoms set forth in the Convention.“
Further examining the relationship between religious and civil law, the European Court of Human Rights stated that the freedom of religion, including the freedom of its manifestation, is primarily an issue of individual conscience, emphasizing that the sphere of individual conscience is distinct from the sphere of "private law" or civil law which is concerned with the organisation and functioning of society as a whole. Article 9 of the European Convention guarantees to all people the freedom to respect the dictates of their religion in their private lives and according to their free choice. On the other hand, private or civil law endows the state with the authority to legitimately stop the expression of religious beliefs in ways that are contrary to public safety and democratic values.

The freedom to manifest religion or beliefs is not exclusively an individual right but also has a collective dimension. Therefore, according to the practice of Convention bodies, the Human Rights Chamber for Bosnia and Herzegovina also affirmed that a religious community can be entitled to the rights from Article 9 of the European Convention (CH/96/29). Following European practices (verdict Church of Scientology), the Human Rights Chamber concluded that a church body or organisation with religious or philosophical goals can enjoy and practice the rights under Article 9 of the European Convention and that in this sense it actually acts on behalf of its members.

The Constitutional Law Framework of Religious Freedoms in Bosnia and Herzegovina and Practical Applications

In general, freedom of thought, conscience and religion is guaranteed in Bosnia and Herzegovina by the BiH Constitution and Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms directly applied in the local legal system according to the BiH Constitution. The protection and restriction of religious freedom are defined by the Law on Freedom of Religion and the Legal Status of Religious Communities and Churches, in essence an inheritor of the principles of secular social organisation established by the earlier Law on the Legal Status of Religious Communities from 1976. Apart from incorporating the provisions of Article 9 of the European Convention, this law elaborates the legal status of religious communities in the democratic and secular social organisation of Bosnia and Herzegovina.
According to the law and in accordance with the clearly proclaimed principle of secular social organisation, the state is separate from religious communities. Religious communities have an internal autonomy in line with their religious norms but "no civil-legal influence". Still, the possibility of introducing the internal legal norms of religious communities into the local legal system exists. However, it is necessary to regulate this issue with a special agreement between the state and the religious community.

The first agreement Bosnia and Herzegovina made with a religious community came into force on 25 October 2007. This is the Basic Agreement and Additional Protocol between the Holy See and Bosnia and Herzegovina. The provisions of this agreement caused various public reactions. While the Catholic Church in Bosnia and Herzegovina and the political elite associated with it considers this an historic event, others have asked what Bosnia and Herzegovina stands to gain and what it stands to lose with this Agreement (“Oslobođenje” 28 October 2007), and others still believe that this marks a big come-back for theocrats (D. Babić). A close reading of the Agreement shows that its provisions do not differ from the existing constitutional law framework according to which the Catholic Church has internal autonomy of religious law, while in the civil law system the Catholic Church, being a legal person, can regulate its rights and obligations exclusively through the provisions of the BiH civil law system. However, some doubts remain. For example, ecclesiastical legal persons, founded, changed, abolished or recognised by the autonomous Catholic Church, can purchase moveable and immoveable property and can acquire and alienate patrimonial rights "according to the norms of canon law and the legislation of Bosnia and Herzegovina".

The fact that priority in cases of dispute is not defined could cause differences in interpretation, especially since Article 1 of the Agreement states that BiH and the Catholic Church reaffirm that the state and Church are independent and autonomous “each in its proper sphere". Therefore, should an ecclesiastical legal person pay tax according to BiH laws when it purchases property in accordance with canon law? Another example: The Agreement states that the police may not undertake security measures in places of worship without previous authorisation from the competent ecclesiastical authority. To what extent can this provision effect or make useless in practice the relevant provisions of BiH law in the field of security? It is to be expected that a number of interesting and serious issues will be raised in practice. The answers to them will certainly be key in the further relationship of religion and state in Bosnia and Herzegovina, but also in the effect of these kinds of agreements with religious communities on the rights of individuals guaranteed by the BiH Constitution.

Although there is not a large body of local legal practice concerning the implementation of religious freedom, the Constitutional Court has passed a number of decisions concerning the relationship of religious and civil law, that is the effect of religious law on the rights of individuals according to civil law. One case (U-62/01) concerned a situation in which the appellant concluded a marriage according to Sharia law and part of the marital agreement was the former spouse’s obligation to pay out to the appellant the amount of 1,000 KM given as dowry (mahr), a practice reserved exclusively for religious Sharia law, in the event of the dissolution of marriage. A civil marriage was not concluded and the Sharia marriage was subsequently dissolved but the spouse refused to pay out the dowry or mahr so the appellant appealed to a regular court. The court denied the appeal because the marriage was according to Sharia or religious law and as such a matter of Islamic law and not the regulations of the Family Law which is applicable to civil marriage and does not include mehr, the basis of the appellant’s case.

Another case concerned the lodging of an appeal by the Franciscan Province with the regular courts against a relative of a deceased monk asking for recognition of its right to the movable property of the monk (AP-286/06). The monk was the owner of the property at the time of his death and had not made a will during his lifetime. The Franciscan Province claimed that according to the norms of canon law the property belonged to them since the monk had taken a vow of poverty. According to their claims, all property that a monk may acquire belongs to the religious institution rather than to him, since otherwise he would be acting against the vow of poverty. It is interesting to note that the first and second instance courts ruled in favour of the appellant, applying the provisions of canon law. However, the Supreme Court overruled the lower instance judgements and dismissed the claim of the Franciscan Province, since it was based on religious law provisions. The Supreme Court concluded that canon law is not domestic law and cannot be applied to the present legal situation.

In the case of the Franciscan Province, the Constitutional Court particularly emphasized that at the time of the reasoning of the Supreme Court, the bilateral agreement between Bosnia and Herzegovina and the Holy See had not been signed and Bosnia and Herzegovina had not adopted the Protocol on conversations held between the representatives of the Government of SFRY and the representatives of the Holy See enacted in 1966. According to the Law on the Freedom of Religion and the Legal Position of Churches and Religious Communities, in order for canon law, the internal legal norm of the Catholic Church or the Franciscan Province, to be included in the domestic legal system, it is necessary to regulate the issue with a special agreement between the state and the Catholic Church. It has been shown that such an agreement did not exist in the present case. The Constitutional Court concluded that the Franciscan Province, as a religious community, is entitled to the right of religious freedom since this right also has a collective dimension. However, the Court also concluded that the public authorities did not “restrict” or interfere with the Franciscan Province's freedom of religion.
The Constitutional Court took into account that, according to the norms of canon law, a monk is obliged to make a will as a legal act of disposing of his own property. This will must be valid within the civil legal framework, while the property of a physical person who is simultaneously a monk by force of law, including the norms of canon law, is not the property of Church. Therefore, the Constitutional Court concluded that by dismissing the claim of the Franciscan Province, the Supreme Court did not “restrict” the freedom of the appellant as a religious community under Article 9 of the European Convention. The Constitutional Court reasoned that public authorities may restrict the application of the internal legal norms of the Catholic Church and disallow their use in regular courts, thereby disqualifying the appeal of the Franciscan Province.

In both cases, the Constitutional Court responded in the negative to the question of whether an individual or religious community as a legal person can protect its rights by applying only the provisions of religious law. In both cases it was concluded that, above all else, neither an individual as a member of a particular religious community, nor a religious community as a legal person acting according to the norms of religious law can base an appeal exclusively on the provisions of religious law and expect civil law protection before the regular courts, since the religious law norm is not the same as the civil law norm. Just as the church and state are separate, so are their legal systems.

The Implications of a Possible Introduction of Religious Law into the Sphere of Civil Law

Civil society is comprised of society as a whole, each citizen individually and also contains all religious communities, political parties, non-governmental organisations, citizen’s organisations etc. as legal persons. In a democratic society, organised according to the principle of the rule of law, all citizens must be equal before the law and the laws must regulate the civil rights and obligations of each individual through previously defined, clear and accessible rules. The subjects of civil law are physical and legal persons. According to the principle of the rule of law, each individual and legal person, without exception, must be treated equally under the law. Also, the laws regulating this area guarantee the equality of all physical and legal persons. Since religious communities have the status of legal persons in the Bosnian-Herzegovinian legal system, as subjects of the civil law system they enjoy the same position as all other legal persons.

Therefore, we may conclude that religious communities, as legal persons, and their members, as physical persons, can obtain legal protection of their rights from the regular BiH courts only through the provisions of civil law. On the other hand, the religious community or church, as well as their individual members, can regulate the rights and obligations that stem from belonging to a collective, in accordance with the norms of that collective. In doing so, they act in accordance with the constitutional law framework for religious communities and the state will not interfere in the internal autonomy of the religious community. Namely, the principle of the rule of law from Article I/2 of the Constitution of Bosnia and Herzegovina obliges the regular courts to apply valid legal norms and rule accordingly. The regular courts are obliged to rule and make decisions exclusively in accordance with the constitution and the laws passed by the responsible legislative bodies. In Bosnia and Herzegovina, a democratic and secular state, religious and civil law are separate and the internal autonomy of the religious community has no bearing on civil law. Therefore, it is not possible to appeal to regular courts exclusively on the basis of the norms of religious law, unless these norms are not already incorporated into the local BiH legal system through an agreement between the religious community and the state, as set out in the Law on Freedom of Religion. However, this incorporation must not lead to the possibility for such an agreement to enable the application of religious law in domestic courts since this would be in violation of the BiH Constitution and its principles that implicitly include secularism.

Namely, as has already been stated, despite the fact that the BiH Constitution does not directly proclaim secularism as a principle, this principle undoubtedly ensues from its other principles, as well as from the text and spirit of the Constitution whose supreme values include respect of differences, democracy, the rule of law and places the protection of individual human rights above all other laws. Introducing religious law or making it equal with civil law would irrevocably endanger the abovementioned principles. In this way, religious communities would finally and definitely abandon internal autonomy for a sphere in which the public authorities are obliged to regulate the functioning of civil society as a whole in a neutral and unbiased fashion. Introducing religious law into the sphere of civil law would make invalid the equality of all participants in the civil law system and would bring about a different position of physical and legal persons depending on their membership in particular religious communities. This would threaten the principle of secularism and the rule of law, leading to the destruction of the nucleus of civil society.

Therefore, it is necessary to maintain the separation of religious and civil law for the unencumbered functioning of a democratic and secular social system, especially in a multi-religious society. This does not take away from the freedoms and rights of believers but rather guarantees that they may enjoy all the same rights as members of other religious communities, atheists and others. Religious communities as collectives and their members as such can, without hindrance, regulate and coordinate their own actions, rights and obligations within the framework of norms of religious law and at the same time fully enjoy and express their religious rights and freedoms. On the other hand, religious communities as legal persons and their members as citizens and subjects of civil law must harmonise their actions in the civil law sphere according to the laws of the state and base their freedoms and obligations on the norms of civil law.

In this way, the state can successfully carry out its role of an unbiased organizer of the manifestation of various religions, beliefs and convictions and protect the principle of the rule of law, one of the key segments of a democratic society, without bringing into question or endangering its constitutional law system. Partisi). The importance of this function of the state was particularly emphasised in connection to public safety, religious harmony and tolerance in a democratic society. Also, the European Court of Human Rights emphasised that the state's obligation to neutrality is incompatible with state authority to evaluate the legitimacy of religious beliefs and that this obligation demands that the state make possible tolerance between opposing groups, pointing out especially that “the principle of secularism in Turkey is undoubtedly one of the fundamental principles of the State, which are in harmony with the rule of law and respect for human rights.”