Case No.: CH/99/1900 and CH/99/1901
Applicant: D.Š. and N.Š.
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 12 April 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

On 23 September 1995 the applicants, both officers of the Army of the Republika Srpska, were arrested and detained by members of the Army of the Republic of Bosnia and Herzegovina. They were held in detention as prisoners of war until their release on 4 August 1997. The applicants alleged that during their detention they were severely and repeatedly maltreated. The cases were referred to the Chamber on 13 April 1999 by the Ombudsperson, after an attempt to find a friendly settlement promoted by the Ombudsperson had failed.

Admissibility

The Chamber recalled that it had no competence ratione temporis to review alleged violations occurring before 14 December 1995. The Chamber concluded that it lacked competence to review the applicants' arrest and detention prior to 14 December 1995, but could review violations of their rights occurring between 14 December 1995 and the end of their detention on 4 August 1997. Acknowledging that the applicants had a domestic remedy of requesting compensation for illegal detention under the Code of Criminal Procedure, the Chamber observed that the respondent Party failed to provide evidence of the effectiveness of this remedy and failed to demonstrate that it had been used successfully in the past. Since the available remedies were not shown to be effective, the Chamber declined to declare the cases inadmissible for non-exhaustion of domestic remedies. Applying its six-month rule, the Chamber declared the parts of the applicants' complaint raised with the Ombudsperson within six months of the violation admissible. However, it found the complaints under Articles 3, 8, 9, 12, and 13 of the Convention inadmissible, since they were not present in the original complaint to the Ombudsperson, but were added to the application later, more than a year after the violations.

Merits

Article 5 of the Convention

The Chamber observed that that the applicants' claims had to be considered in light of their prisoner of war status and of Article IX of Annex 1A of the General Framework Agreement, which regulated the treatment of war prisoners. The Chamber also noted that the applicants stayed in detention significantly longer than all other prisoners of war at their camp, that their names did not appear in the lists of prisoners of war, and that they were hidden from the proper authorities. While detention may have been justified in the direct aftermath of the hostilities by the exigencies of war, they were not justified for such a long time. The Chamber held that the detention of the applicants from the beginning of March 1996 to 4 August 1997 constituted a violation of their right to liberty and security of person as guaranteed by Article 5 paragraph 1 of the Convention, the Federation of Bosnia and Herzegovina thereby being in breach of Article I of the Agreement. The Chamber further considered that it was not necessary to examine whether the applicants had been discriminated against in the enjoyment of their rights as guaranteed by Article 5 of the Convention.

Remedies

The Chamber ordered the Federation of Bosnia and Herzegovina to pay to each applicant the sum of KM 25,000 by way of compensation for non-pecuniary damage.

Decision adopted 6 March 2002
Decision delivered 12 April 2002


DECISION ON REQUEST FOR REVIEW

The respondent Party submitted a request for review in which it complained that the amount of compensation awarded for non-pecuniary damages was not proportional to the amount of compensation awarded in other similar decisions the Chamber had already issued. The Chamber found that the respondent Party's objection did not raise a serious question affecting the interpretation or application of the Human Rights Agreement or a serious issue of general importance. In addition, the Chamber found that the whole circumstances of the case did not justify reviewing the decision. As the request did not meet the conditions set forth in Rule 64 paragraph 2 of its Rules of Procedure, the Chamber decided to reject the request for review.

Decision adopted 6 June 2002.