Case No.: CH/00/4889
Applicant: The Islamic Community in Bosnia and Herzegovina
Respondent Party: Republika Srpska
Other Title: Jakes Cemetery
Date Delivered: 12 October 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

During the period of 1996 through 2000, the Institute for Treatment of Mentally Retarded Persons ("Institute") in Garevac in the Modrica Municipality buried the remains of deceased non-Muslim patients from the Institute in the Muslim Cemetery in Vukosavlje-Jakes, which is situated on land owned by the Islamic Community in Bosnia and Herzegovina. The Institute also allegedly removed the remains of deceased Muslims previously buried in the Cemetery.

Admissibility

Since the Institute is a public body and the respondent Party may be held responsible for its acts, the Chamber found that the application fell within its competence ratione personae and declared it admissible.

Merits

Article 9 of the Convention

First, the Chamber examined Article 9 in isolation. Noting that Bosnian tradition does not usually permit burials of deceased persons of different religions together, the Chamber found that the unauthorised burial of non-Muslims and the erection of crosses in the Jakes Cemetery, an exclusively Muslim cemetery, without the consent of the Islamic Community, fell within the scope of Article 9 because such actions interfered with the religious practice and observance of the Islamic Community. The Chamber found the unauthorised burial of non-Muslims in an exclusively Muslim cemetery to be provocative and unjustified within the meaning of Article 9(2). Thus the Chamber found a violation of Article 9 taken in isolation.

Second, the Chamber examined Article 9 in connection with discrimination. Finding that there was insufficient evidence to support the finding of differential treatment, the Chamber did not find that the respondent Party had discriminated against the Islamic Community with respect to Article 9.

Article 1 of Protocol No. 1

First, the Chamber examined Article 1 of Protocol No. 1 in isolation. The Chamber found that the burial of non-Muslim patients in the Jakes Cemetery without the consent of the Islamic Community was an interference with the Islamic Community's right to peaceful enjoyment of its possessions as guaranteed by Article 1 of Protocol No. 1. Since this interference was not lawful, the Chamber found a violation of Article 1 of Protocol No. 1 in isolation.

Second, the Chamber examined Article 1 of Protocol No. 1 in connection with discrimination. For the same reasons discussed with respect to discrimination in connection with Article 9, the Chamber found that there was insufficient evidence for it to find differential treatment in the respondent Party's interference with the Islamic Community's property rights in the Jakes Cemetery. Accordingly, the Chamber did not find that the respondent Party had discriminated against the Islamic Community with respect to its right to peaceful enjoyment of possessions guaranteed by Article 1 of Protocol No. 1.

Remedies

The Chamber found that the findings of violations of Article 9 and Article 1 of Protocol No. 1 constituted sufficient satisfaction.

Decision adopted 8 October 2001
Decision delivered 12 October 2001

DECISION ON REQUEST FOR REVIEW

As of 31 December 2001, the decision on request for review had not been decided.