in the case of

H.R. and MOHAMED MOMANI v. THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/98/946)

FACTUAL BACKGROUND

H.R. is a citizen both of Bosnia and Herzegovina and of Jordan. He is of Arab descent. Mohamed Momani is a Palestinian citizen of Palestinian descent. Bosnian Croat police arrested them on 10 February 1996 at Kreševo, the Federation of BiH, and detained them together with Samy Hermas, who was the applicant in case no. CH/97/45 in which the Chamber delivered its decision on admissibility and merits on 18 February 1998. On 27 June 1996 the applicants were brought before a judge and allowed to meet their lawyer for the first time. By a decision taken that day their continued detention was ordered due to their being suspected of having committed war crimes and other criminal offenses. The Office for the Exchange of Prisoners and Other Persons of Hrvatska Republika Herceg-Bosna had made numerous attempts to have the applicants exchanged. The applicants were finally exchanged for Bosnian Croat prisoners of war on 7 August 1996.

The applicants complain under Article 5 of the European Convention on Human Rights, that they were unlawfully arrested and detained for a total period of 179 days without being charged with an offence, informed of the reasons for their detention, brought before a judge, or given the possibility of starting proceedings for the first 139 days of that period. They further complain that they have not been compensated for their detention. The applicants also complain that during their detention they were subjected to torture and inhuman and degrading treatment in violation of Article 3 of the Convention and required to perform forced labour in violation of Article 4 of the Convention. The applicants further complain that they were discriminated against in the enjoyment of their rights under Articles 3, 4 and 5 of the Convention. Finally, the applicants complain that they had no effective remedy against their deprivation of liberty. In this respect, they allege, in substance, a violation of Article 13 of the Convention.

FINDINGS OF THE CHAMBER

Article 3 of the European Convention on Human Rights

The Chamber found that the physical violence committed on the applicants while they were in captivity and thus at the mercy of their captors constituted inhuman and degrading treatment. In the Chamber's opinion, the same applied to the fact that the applicants were being kept in a state of prolonged uncertainty as to their eventual fates, which was further aggravated by threats of death and grievous injury. Thus the Chamber found that Article 3 of the Convention had been violated.

Article 4 of the Convention

The Chamber found that the applicants, who were detained against their will, did not offer themselves voluntarily for the work that they were required to perform while in detention. Moreover, the Chamber accepts that the applicants could reasonably believe that they were under threat of violence against their persons had they refused. In this regard the Chamber noted that they had already been physically assaulted and were entirely at the mercy of the persons keeping them in detention. It therefore accepted that the work exacted from the applicants amounted to "forced or compulsory labour". This constituted a violation of Article 4 of the Convention.

Article 5 paragraph 1 of the Convention

The Chamber came to the conclusion that the applicants were arrested and detained by agents of the respondent Party for the sole purpose of exchanging them against prisoners held by others. Moreover, although the Chamber did not distinguish the period after 27 June 1996 from the preceding period, it noted that in so far as the reason for the detention of the applicants as from that date was the suspicion that they had committed war crimes, the "Rules of the Road" contained in the Rome Agreement of 18 February 1996, which are directly applicable in the legal system of Bosnia and Herzegovina, required that the relevant order, warrant or indictment be reviewed beforehand by the International Criminal Tribunal for the former Yugoslavia. That requirement was not complied with in this respect. In this respect also, the deprivation of liberty was inconsistent with Article 5 paragraph 1 of the Convention. The Chamber concluded that Article 5 paragraph 1 had been violated.



Article 5 paragraph 2 of the Convention

Although it appeared that the detention of the applicants was for the purpose of exchange against other prisoners and that they were so informed in May 1996 by the commanding officer of the military prison where they were detained, no legal grounds were given at all. In these circumstances the Chamber took the view that the date on which the applicants were informed of the reasons for their arrest and of any charge against them was 27 June 1996. That was the date on which the investigative judge gave them the information which enabled them to take any proceedings to challenge the lawfulness of their detention. The Chamber therefore found that a delay of some four-and-one-half months in providing such essential information could not in any circumstances be considered compatible with Article 5 paragraph 2 of the Convention. Thus, there had been a violation of Article 5 paragraph 2.

Article 5 paragraph 4 of the Convention

The Chamber found that no remedy at all was available to the applicants until 27 June 1996 and the respondent Party had not suggested otherwise. This was in itself sufficient to find that there had been a violation of Article 5 paragraph 4. It should be noted that, although it appears that a judicial remedy became available to the applicants on 27 June 1996 (of which the applicants did not avail themselves), no argument had been made by the respondent Party that this remedy met the requirements of Article 5 paragraph 4. In conclusion, Article 5 paragraph 4 had been violated.

Article 5 paragraph 5 of the Convention

The Chamber found that, although the law of the Federation provides for a right to compensation in relation to illegal detention, it was not established that it met Convention standards. Thus, the Chamber found that Article 5 paragraph 5 of the Convention had been violated.

Article 13 of the Convention

Given the absolute nature of the prohibition enshrined in Article 3 of the Convention, the Chamber found that this applies equally to forms of inhuman or degrading treatment short of torture. Whether or not it would be, or would have been, open to the applicants to take civil proceedings against the respondent Party or a subordinate authority with a view to obtaining compensation, the Chamber was not convinced that a remedy involving a "thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure" was in fact available. Like the Ombudsperson, the Chamber noted that the public prosecutor failed to make use of his powers to carry out any investigations directed against the applicant's captors. In conclusion, Article 13 had been violated in that there was no "effective remedy" available to the applicants with regard to the violation of Article 3. No separate issue arose under Article 13 with regard to the violations of Article 4 and Article 5. 

Discrimination

The Chamber found that the applicants were detained for no other reason than to exchange them against other prisoners. During their detention, they were subjected to ill-treatment and forced labour on the ground of their religion and national origin. Since no objective and reasonable justification is conceivable for such treatment, the Chamber concluded that the applicants were discriminated against in the enjoyment of their rights under Articles 3, 4, and 5 of the Convention.

REMEDIES

The Chamber ordered the respondent Party to carry out a thorough and effective investigation of the arrest, ill-treatment and forced labour of the applicants, to identify those responsible, to bring the perpetrators to justice and to provide effective access for the applicants to the investigatory procedure. As to the compensation claims, the Chamber ordered the respondent Party to pay to Mr. Momani, within three months, the sum of 11,500 Convertible Marks (KM) by way of compensation for pecuniary and non-pecuniary injury, and to pay to H.R., within three months, the sum of 12,500 Convertible Marks (KM) by way of compensation for pecuniary and non-pecuniary injury.