in the case of

SAKIB ZAHIROVIĆ v. BOSNIA AND HERZEGOVINA AND
THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/97/67)

FACTUAL BACKGROUND

The applicant is a citizen of Bosnia and Herzegovina of Bosniak origin. He worked for approximately 30 years for the "Livno-Bus Company" in Livno, Canton 10 of the Federation of Bosnia and Herzegovina. During the Bosniak-Croat conflict in July 1993 he was no longer allowed to come to work but was placed on a so-called waiting list together with 51 other employees of Bosniak origin. The company paid certain compensation to the applicant and the others on the waiting list until June 1997. It continued to pay contributions for them to the pension and social security funds until January 1994. In 1996 the company offered formal employment contracts to some 40 persons of Croat origin who had "temporarily" taken over the duties of the applicant and his Bosniak colleagues during the hostilities. In July 1997 the applicant and his colleagues initiated proceedings before the Municipal Court in Livno, requesting to be reassigned to their posts and to be awarded pecuniary compensation. A pre-hearing was only scheduled in February 1999 and a full hearing in March 1999. 

FINDINGS OF THE CHAMBER

Discrimination

The Chamber found that public organs for which the Federation was exclusively responsible had had a direct influence on the acts and omissions of the Livno-Bus Company. The Chamber found that the continued placement of the applicant on the waiting list of the company, after the entry into force of the Dayton Agreement, had subjected him to differential treatment in comparison with his colleagues of other ethnic or national origins. In so far as this treatment had continued after the particular war-related circumstances had ceased to exist, the Chamber found no evidence that it had been objectively justified in pursuance of a legitimate aim. The Chamber concluded that the authorities of the Livno Municipality and Canton 10 had either actively discriminated against the applicant or at least passively tolerated discrimination against him in the enjoyment of his right to work and just and favourable conditions of work, as guaranteed by Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights, due to his Bosniak origin. 

Article 6 of the European Convention on Human Rights

The Chamber recalled the Đ.M. case in which it noted the apparent practice in Canton 10 that only members or sympathisers of the ruling Croat party were appointed to judicial office and that political pressure was exerted on them. An objective observer could therefore legitimately doubt that the Livno Municipal Court was an "independent" tribunal within the meaning of Article 6 paragraph 1 of the Convention, which guarantees the right to a hearing before an independent and impartial tribunal. In the present case the Chamber established that the Livno Municipal Court did not process civil actions or complaints by plaintiffs of Bosniak origin, or only scheduled hearings to cover up its inefficiency. The Chamber concluded that the Livno Municipal Court could not be regarded as independent of political influence when examining the applicant's civil action. Accordingly, his rights under Article 6 paragraph 1 of the Convention had been violated.

REMEDIES

The Chamber ordered the Federation to undertake immediate steps to ensure that the applicant is no longer discriminated against in his right to work and to just and favourable conditions of work, and that he is offered the possibility of resuming his work on terms commensurate with his qualifications and equal to those enjoyed by other employees of the company. Further, the Chamber ordered the Federation to take all necessary steps to ensure that the applicant's civil action against the Livno-Bus Company is examined by an independent and impartial judiciary, and to pay to the applicant a lump sum of 24,000 KM for moral and pecuniary damage. 

Mr. Dietrich Rauschning attached a Partly Dissenting Opinion to the decision. Mr. Želimir Juka attached a Dissenting Opinion to the decision.