Case No.: CH/00/5480
Applicant: Aziz DAUTBEGOVIC and 51 Other Villagers from Duge
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 6 July 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicants are villagers of Bosniak origin living in Duge, Prozor-Rama Municipality, the Federation. The village is located near the Krupic Spring on the banks of the Buk River which flows into the Duscica Stream, forming two waterfalls along the way. The village is named for the rainbows that often appear in the sky above the waterfalls and the area is renowned for its natural beauty. The applicants consider the river and its waterfalls to be an integral part of their lives. They are farmers in a rural area who support themselves through agricultural production for which they depend upon the river.

The case concerns the alleged threat of imminent damage to the applicants' homes, livelihood, and well-being resulting from the planned construction of a hydro-electric power plant near their village and within a protected site of natural heritage assets. This construction was approved by the Prozor-Rama Municipality, and the investors in the power plant project obtained, among other approvals, a certificate on conditions of regional development issued on 13 May 1996 and a building permit issued on 14 May 1996.

The applicants claimed that if the planned construction of the power plant was allowed to go forward, their rights protected under Articles 8, 6, and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention would be violated. The applicants further alleged that they suffered discrimination based on their ethnic origin in the enjoyment of these rights. On 4 September 2000, the Chamber ordered the respondent Party, as a provisional measure, to take all necessary measures to ensure that the construction works on the planned hydro-electric power plant near the village of Duge be stopped. The Chamber subsequently extended the provisional order until such time as it would adopt its final decision in the case or the order was withdrawn.

Admissibility

First, noting that the permit for use of the land for construction of the power plant was issued after the Dayton Peace Agreement entered into force, the Chamber found that the application fell within its competence ratione temporis. Second, the Chamber found that the applicants could not be required to exhaust any further domestic remedies. Third, noting that the power plant had not been built, and that there had not been any substantiation of the allegation that the power plant would interfere with the property of the applicants, the Chamber declared the applicants' claims under Article 1 of Protocol No. 1 inadmissible as manifestly ill-founded. Fourth, noting that the applicants had never sought to have their rights determined in any civil court, the Chamber declared their claims under Article 6 inadmissible as manifestly ill-founded. Fifth, noting that a prima facie case did not exist against the respondent Party for discrimination, the Chamber declared the applicants' allegations of discrimination inadmissible as manifestly ill-founded. Finally, the Chamber declared the applicants' remaining claims admissible.

Merits

Article 8 of the Convention

The Chamber first considered whether there was an interference with the applicants' right to respect for private and family life and home. The Chamber found that construction of the power plant would interfere with the protected natural heritage assets near the village of Duge. Considering the relevant case law of the European Court of Human Rights, the Chamber found that it may be argued that the applicants are entitled to protection under Article 8 for their traditional way of living as farmers in a rural area protected as an asset of natural heritage. Thus the Chamber found that the respondent Party's approval of construction of the power plant near the village of Duge in a location that would directly affect the applicants' traditional way of living constituted an interference with their rights to private and family life and home protected by Article 8.

The Chamber next examined whether the respondent Party's interference with the applicants' protected rights was justified by the requirements of Article 8(2). The Chamber noted that at the time of the interference, two sets of laws concerning the protection of nature and physical planning were being applied on the territory of the Federation: one set passed by the authorities of the former Republic of Bosnia and Herzegovina and the other set passed by the authorities of the former "Croat Community of Herceg-Bosna." The Chamber considered each set of laws individually in analyzing whether the interference with the applicants' rights was "in accordance with the law." The Chamber found that under both sets of laws, the competent authorities failed to obtain necessary approval for the protection of nature from the governmental body responsible for such protection service and failed to allow the applicants an opportunity to participate in the administrative proceedings surrounding issuance of the construction approvals. Thus the interference with the applicants' protected rights was not in accordance with the law and the respondent Party violated the applicants' rights under Article 8.

Remedies

The Chamber ordered the Federation, should further steps be necessary for the protection of the applicants' rights in relation to the natural heritage assets near the village of Duge, to prevent construction of buildings or other objects at the site of protected natural heritage assets unless permission for such construction was granted in accordance with the law. The Chamber also ordered the Federation to pay to the applicants one lump sum amount of KM 2,000 for total compensation for their legal costs and expenses.

Decision adopted 2 July 2001
Decision delivered 6 July 2001