IX. CASES BEFORE THE CHAMBER IN 2001

This section of the Report is intended to provide a broad picture of the Chamber's work during the year, and to highlight some of the main developments in its case-law. A list of all the decisions taken by the Chamber during the year, on the admissibility or merits, requests for review, striking out of cases and decisions on review, is attached to this Report as Annex F. Summaries of a selection of decisions dealing with the merits of cases are attached as Annex G. The full texts of all decisions on the merits, and a selection of decisions on admissibility, are included in the two companion volumes of decisions (January - June 2001 and July - December 2001). Copies of the Chamber's decisions are available from the Secretariat on request.
1. Provisional Measures

Article X, para. I, of Annex 6 empowers the Chamber to order provisional measures. This can be done at any stage of the proceedings. Generally speaking the Chamber will only order a provisional measure where there is a prima facie indication that a protected right has been infringed, or is threatened with infringement, and it appears likely that the applicant will suffer serious or irreparable harm if an order is not made. Such orders are most frequently used to preserve the status quo pending the Chamber's determination of a case and are legally binding. The Chamber also has specific power under Article XI, para. l (b) of Annex 6 to include an order for provisional measures in its final decision on the merits of a case. This power can be used to regulate the position of the parties before a decision becomes final and binding, or pending the full implementation of a decision.

During the year the Chamber has continued to receive substantial numbers of requests for provisional orders, particularly in housing cases where the applicant is threatened with eviction. Following changes in the housing laws, including in particular the repeal of abandoned property legislation, the majority of such requests have been refused. Many such requests relate to evictions lawfully ordered to enable the pre-war occupant of property to return. In such cases a provisional order will be made only in exceptional circumstances. All cases involving such requests are, however, reviewed as a matter of priority in accordance with Article VIII, para. 2(f) of Annex 6.

2. Questions of Admissibility

When a case comes before it the Chamber must decide whether or not to accept it, taking into account the admissibility criteria set out in Article VIII, para.2 of Annex 6. The principal criteria relate to: the exhaustion of any effective domestic remedies; the introduction of the application within six months from the date of the final domestic decision; whether the application is compatible with Annex 6 and whether it is manifestly ill-founded. These provisions are similar, but not identical, to the provisions of the European Convention on Human Rights concerning the admissibility of applications to the European Court of Human Rights.

In all cases (apart from any case submitted by a Party to the Annex 6 Agreement) the Chamber carries out a preliminary examination of the admissibility of the application before deciding on the further procedure. It may reject the application as inadmissible at that stage without communicating the case to the respondent Party. If, however, the case is communicated to the respondent Party for observations, the Chamber expects the Party concerned to set out in its written observations any objections it has to the admissibility of the case, failing which it may be precluded from raising such objections at a later stage.

A number of significant decisions have been taken on admissibility issues during the year in which the scope of the Parties' responsibilities under the Agreement has been considered. In the case of Zornic (Case No. CH/99/1961) the applicant complained that she was unable to recover possession of an apartment situated in an area of Dobrinja whose status was disputed between the Federation and the Republika Srpska. The area was under the de facto control of the Republika Srpska, but the Federation claimed that it was de jure part of Federation territory. A question arose as to whether the Republika Srpska was responsible for the matters complained of. Following case-law of the European Court of Human Rights the Chamber held that the responsibility of a Party could be engaged by acts of its authorities producing effects outside its own boundaries. Accordingly, regardless of whether the area in question was located within the territory of the Republika Srpska or not, its responsibility was engaged by virtue of its effective occupation of the area. The case of Spahalic and Others (Case No. CH/00/4116 et al.) concerned inter alia housing matters in the District of Brcko. The Chamber held that the Republika Srpska had been responsible for such matters until 19 September 2000, when a Memorandum of Understanding had been signed by the Parties which effected the transfer of responsibility for such matters to the authorities of the District. Responsibility thereafter rested with Bosnia and Herzegovina.

In the case of Miholic and Others (Case No. CH/97/60 et al.) the question arose as to whether the Federation could be held responsible for legislation which had been imposed by decision of the High Representative. The applicants complained that they had been prevented from registering themselves as owners of, and repossessing, apartments they had purchased from the Yugoslav National Army (JNA). They maintained that this situation arose from the application of amendments to the law imposed by the High Representative. The Federation pointed out that the Chamber had previously declared inadmissible, as incompatible with the Agreement ratione personae, complaints concerning decisions of the High Representative on such matters as the removal of officials from office. It maintained that it should follow the same course in the case in point. The Chamber, referring to case-law of the Constitutional Court, held that in enacting legislation the High Representative was substituting himself for the national authorities. The law he enacted had the status of Federation law in both form and substance and the Federation was the appropriate respondent Party in the case.

3. Striking Out etc.

The Chamber has continued to make frequent use of its powers under Article VIII, para. 3, of Annex 6. Under this provision the Chamber may suspend consideration of, reject or strike out an application on the ground that the applicant does not intend to pursue the application, that the matter has been resolved, or that for any other reason continued examination of the application is no longer justified. It can only take such a decision if satisfied that the result is consistent with the objective of respect for human rights. 96 strike-out decisions have been taken during the year. Such decisions have most commonly been based on specific withdrawal by the applicant, failure of the applicant to respond to communications from the Chamber, leading to the conclusion that he or she does not intend to pursue the case, or resolution of the case, where the primary aim of the applicant (such as the recovery of property) has been achieved.

4. Questions Arising on the Merits

The Chamber continues to deal with a large and diverse case-load. The following is a selective outline of some of the more significant matters the Chamber has dealt with.

a) Property and Housing Matters

As in previous years the Chamber has dealt with a substantial number of cases relating to housing matters. Numerous cases have been received from temporary occupants threatened with eviction on the one hand, and from persons complaining that they have not been able to recover possession of their property on the other. In most cases, in the absence of any exceptional circumstances, the Chamber has rejected as manifestly ill-founded complaints of the former category where it appears that the domestic authorities have acted lawfully for the purpose of reinstating the pre-war occupant. As to the latter category, the Chamber has frequently found violations of the Agreement arising from the failure of the domestic authorities to comply with time limits and other legal obligations relating to the reinstatement of pre-war occupants, including in particular failure to enforce decisions of the Commission for Real Property Claims of Displaced Persons and Refugees established under Annex 7 to the Dayton Agreement.

One case decided during the year, Miholic and Others (Case No. CH/97/60 et al.), concerned the measures taken in the Federation following earlier decisions relating to the annulment of sales of JNA apartments. The applicants complained that they were unable to register themselves as owners of, and repossess, apartments which they had purchased from the JNA. Their purchase contracts had been annulled by legislation passed in 1995. In the case of Medan and Others (Case No. CH/96/3 et al., Decision of 3 November 1997, Decisions, March - December 1997) the Chamber had held that the legislation in question had infringed the applicants' rights under Article 1 of Protocol No. 1 to the European Convention. Following the Medan decision legislation was passed which allowed most persons whose purchase contracts had been annulled by the 1995 legislation to be registered as owners and to repossess the apartments in question. However, certain classes of persons, including the applicants in the Miholic case, were excluded from these rights. Essentially the legislation, as applied, excluded persons who were not registered citizens of Bosnia and Herzegovina on 30 April 1991 and were in active service with the JNA on that date, and also excluded persons who were in active military service of any armed forces outside Bosnia and Herzegovina after December 1995. Following a hearing, and having considered amicus curiae submissions by the OHR and the UNHCR, the Chamber held that the applicants' rights to peaceful enjoyment of their possessions under Article 1 of the Protocol had been violated and that they had also been discriminated against.

Another case, Ubovic and Others (Case No. CH/99/2425 et al.) related to the attempts of the applicants to return to properties situated in an area at Glamoc, which had been designated a military training range for the Federation army. The Chamber found that some of the applicants had been de facto deprived of certain properties in that the Federation entered into possession and carried out various works on them. As to certain other properties the Chamber found that, although the applicants had not been deprived of the properties, there had been interference with their right to peaceful enjoyment of their possessions resulting from decisions declaring the general interest for expropriation and allowing the Ministry of Defence to enter into possession. These decisions had significantly reduced, in practice, the applicants' ability to use and dispose of their properties. Since the authorities had not complied with procedural requirements of domestic law in any of the cases, the Chamber found that the interferences with the applicants' rights under Article 1 of Protocol No. 1 to the Convention could not be justified and that this provision had been violated. It also found that the rights of some of the applicants to respect for their homes, under Article 8 of the Convention, had been violated.

b) Employment Issues

The Chamber has dealt with a significant number of cases relating to employment during the year. The European Convention does not guarantee any right to employment and generally speaking the Chamber can therefore only deal with complaints relating to deprivation or refusal of employment where it is alleged that there has been discrimination contrary to Article II, para. (2)(b) of Annex 6 in conjunction with one of the provisions relating to employment in the other treaties referred to in Annex 6. Cases in which the applicant has alleged a violation of employment rights and either has not made, or has not sufficiently substantiated an allegation of discrimination have frequently been declared inadmissible.

In some cases issues may nevertheless arise under the European Convention. When for instance, an individual is deprived of a contractual right to salary an issue may arise under the right to property protected by Article 1 of Protocol No. 1 to the Convention. The Chamber found a violation of this provision in the case of Softic (Case No. CH/97/76). Issues have also arisen regarding court proceedings relating to employment matters, in particular relating to the right to access to court in civil proceedings and to determination of cases within a "reasonable time" under Article 6 of the European Convention.

One case decided by the Chamber during the year, the case of Kajtaz and Others (Case No. CH/98/1309 et al.) related to the appointment procedures in a Ministry of the State of Bosnia and Herzegovina. The nine applicants had all been employed in the Ministry of Justice and General Administration of the Republic of Bosnia and Herzegovina. After the establishment of the new Ministry for Civil Affairs and Communication of the State in December 1997, the applicants continued to work for the new Ministry. Some of the employees of the old Ministry were formally assigned to the new Ministry, but the applicants were not and were eventually removed from employment in 1999. One of the factors taken into account in deciding which employees should be assigned to the new Ministry was the ethnic origin of the persons concerned. The Chamber found that differential treatment arising from an attempt to obtain representation of the major ethnic groups in the public service might pursue a legitimate aim. However, for this aim to be achieved in a legitimate manner the process must be transparent, fair and objective. This had not been the case here. Amongst other defects in the procedures, the Chamber noted that no reasons had been given for the decisions not to employ the applicants, nor had they been interviewed or given formal decisions. No provision was made for the treatment of persons of mixed ethnic origin, as some of the applicants were. The Chamber concluded that the selection process had been arbitrary and that the applicants had been discriminated against in their enjoyment of the right of access to public service under Article 25 (c) of the International Covenant on Civil and Political Rights. It also found that the applicants had been denied the right of access to court under Article 6 of the Convention in view of the absence of any court at the State level and uncertainties as to the jurisdiction of the Entity courts.

c) Missing Persons

The Chamber has received an increasing number of cases submitted by the relatives of persons who have gone missing during the war in Bosnia and Herzegovina. Whilst the Chamber has no competence ratione temporis to deal with complaints concerning events before 14 December 1995, it can consider such cases where there is evidence that the person concerned has been in the custody of one of the Parties after that date. It can also consider whether the authorities dealing with the requests of relatives for information have treated the relatives in a manner that is compatible with their rights under the Agreement. In this respect issues may arise under Article 3 of the European Convention (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life).

One such case, Palic (Case No. CH/99/3196), decided during the year concerned a Colonel Palic, an officer in the Army of Bosnia and Herzegovina, who had been taken into custody by the Bosnian Serb Army in July 1995. In an application brought before it by his wife, both on her own behalf and on behalf of her missing husband, the Chamber found on the evidence before it that it was established that Colonel Palic had remained in the custody of the Republika Srpska after 14 December 1995. It found that his right to liberty and security of person had been violated, that he had been subjected to inhuman and degrading treatment and, in view of the length of time that had elapsed without information as to his whereabouts or fate, that there had also been a violation of his right to life. It also found that the applicant herself had been the victim of inhuman and degrading treatment arising from the fear and anguish she had suffered as a result of her husband's unclarified fate and that the respondent Party had also violated her right to respect for her private and family life by arbitrarily withholding information as to his fate and whereabouts. Amongst other orders, the Chamber ordered the respondent Party to carry out a full investigation and awarded compensation.

Another such case, Unkovic (Case No. CH/99/2150), arose from the murder of members of the applicant's family in 1992. The Second Panel of the Chamber found that the applicant had been the victim of inhuman and degrading treatment as the result of a failure by the authorities of the respondent Party to investigate and pursue the fate of the family in a timely manner. This decision is not final and binding as at the year's end, in view of pending review proceedings.

d) Freedom of Religion

The plenary Chamber reviewed a decision taken by the Second Panel in relation to attempts by the Islamic Community to reconstruct mosques on sites in and near Zvornik in the Republika Srpska (Islamic Community Case No. CH/98/1062). This case raised important issues in relation to the remedies which were appropriate. The Second Panel held that the Republika Srpska had infringed the rights of the applicants by preventing them from using the sites of destroyed mosques and reconstructing the mosques. On two of the sites in question substantial new buildings had been erected, a multi-storey building on one and an Orthodox Church on the other. The Second Panel ordered the respondent Party to make available suitable alternative sites. The applicants maintained that it should have ordered the respondent Party to remove the buildings so as to allow the reconstruction of the mosques on their original sites. The Plenary Chamber essentially upheld the decision of the Panel, drawing persuasive guidance in the matter from domestic property law.

In another case brought by the Islamic Community against the Republika Srpska (Islamic Community Case No. CH/00/4889), the Chamber found that the applicants' rights to freedom of religion and to peaceful enjoyment of their possessions had been violated as a result of the unauthorised burial in the Muslim cemetery at Jakes of a number of deceased non-Muslim patients from an institution housing mentally retarded persons.

5. Amicable Resolutions

No formal settlements have been achieved under Article IX of Annex 6 during the year, but as in previous years many cases have been resolved and struck off the Chamber's list.

6. Remedies

Article XI, para. 1(b) provides that if the Chamber finds a violation of the Agreement it shall address in its decision "what steps shall be taken by the respondent Party to remedy the breach, including orders to cease and desist, monetary relief (including pecuniary and non-pecuniary injuries), and provisional measures".

The remedies most commonly awarded by the Chamber continue to be compensation, and the restoration of property within a defined time limit although a wide variety of other orders has also been made. In the Ubovic case for instance, the Chamber gave the respondent Party a choice of what action to take. It ordered the respondent Party (a) to decide within six months either to pursue the expropriation of the applicants' property in accordance with the relevant domestic legislation or not to pursue the expropriations and return the applicants' property to them and compensate them for all damage suffered and (b) in either case to take steps to comply with the consequences of its decision and make available funds for compensation of the applicants.

In the Palic case the Chamber ordered the Republika Srpska to carry out immediately a full investigation capable of exploring all the facts regarding Colonel Palic's fate from the day when he was forcibly taken away and to bring the perpetrators to justice, to release Colonel Palic, if still alive, or otherwise, to make available his mortal remains to Ms. Palic, and to make all information and findings relating to the fate and whereabouts of Colonel Palic known to Ms. Palic. Compensation in the amount of 65,000 KM was also awarded.

In Miholic and Others, the Chamber ordered the Federation of Bosnia and Herzegovina to take necessary legislative or administrative action to render ineffective the annulment of the applicants' purchase contracts and enable them to register ownership over their apartments.

7. Review Proceedings

Where a case is decided by a Panel, the plenary Chamber may decide, in accordance with Article X, para. 2, of Annex 6, to review the decision. Rule 64 of the Chamber's Rules of Procedure provides that the Chamber shall not accept a request for review unless it considers that the case raises a serious question affecting the interpretation or application of the Agreement or a serious issue of general importance, and that the whole circumstances justify reviewing the decision. In practice the Chamber has used its powers of review sparingly.

8. Implementation of Decisions

Under Article XI, para. 6, of Annex 6, the Parties must "implement fully decisions of the Chamber". Generally speaking the Chamber sets a deadline for the fulfilment of any order it makes, running from the date of the decision or, in the case of a decision taken by a Panel, from the date when the decision becomes final and binding. The latter date is the date of expiry of the time limit for the initiation of review proceedings, or the date of completion of any review proceedings initiated. It is also the practice of the Chamber to order the respondent Party to report to it within a set time limit on the steps taken to implement the decision. If an adequate response is not received, the matter is taken up with the Office of the High Representative (OHR). It is also the practice of the Chamber to inform the OHR, as also the OSCE and UNMIBH/IPTF, of all orders for provisional measures so that the Parties' compliance with them can be monitored.

The situation as regards implementation of the Chamber's decisions still gives rise to concern. By the end of 2001 the Chamber had taken a total of 122 decisions on admissibility and merits (some relating to more than one application). In 111 of these decisions, action of some kind by the respondent Party was required. The Parties concerned had complied fully with 65 of these decisions. In the remaining 46 decisions, the Parties concerned had complied partially with 22 and not at all with 24. In the vast majority of these latter decisions, the deadlines for the respondent Parties to comply had expired.