Case No.: CH/00/6444, CH/00/6506, CH/00/6511 and CH/00/6513
Applicant: Neđo and Saveta TRKLJA, Envera-Vera ÐIKIĆ, Salko and Katarina OVČINA and Manojlo and Danica AVDALOVIĆ
Respondent Party: Bosnia and Herzegovina
Date Delivered: 10 May 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The cases concern the attempts of seven applicants to regain possession of their apartments in the municipalities Mostar West ("Zapad") and Mostar Southwest ("Jugozapad"). All the applicants have lodged applications with the CRPC, which has issued decisions confirming their occupancy rights. However, the competent authorities have failed to execute those decisions.

Admissibility

As the applicants could not be required to exhaust any further domestic remedies, the Chamber declared the applications admissible.

Merits

Discrimination

On the basis of Article II paragraph 2(b) of the Human Rights Agreement the Chamber considered whether the applicants had suffered discrimination in the enjoyment of their rights. In the opinion of the Chamber the uncontested policy of the ruling Croat HDZ party to prevent minority returns and maintain the demographic "purity" of the three Croat majority municipalities in itself constituted a systematic pattern of discrimination against persons of Bosniak and Serb origin, including persons of mixed marriages. Accordingly, the Chamber concluded that the applicants had been discriminated against in the enjoyment of their rights under Articles 17 and 26 of the ICCPR and Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Article 8 of the Convention

Recalling Blentic v. the Republika Srpska and Ð.M. v. the Federation of Bosnia and Herzegovina, the Chamber stated that Article 8 may give rise to positive obligations, which are inherent in an effective respect for the rights which it guarantees, and that a fair balance must be struck between the general public interest and the interests of the people concerned. The Chamber found that the passivity shown by the municipal authorities in response to the applicants' various petitions to re-enter apartments which were indisputably theirs amounted to a lack of respect for their "home" within the meaning of Article 8 paragraph 1. In the opinion of the Chamber the respondent Party had made no attempt to justify this lack of respect. Nor could the Chamber find any such justification on its own motion. The Chamber therefore concluded that the applicants' rights under Article 8 had also been violated.

Article 1 of Protocol No. 1 to the Convention

The Chamber noted that positive obligations may include the provision of necessary assistance in the recovery of property by means of eviction. The Chamber was concerned with the failure of the authorities to protect the applicants against a continuing unlawful occupation of their possessions within the meaning of the first sentence of the first paragraph of Article 1. The Chamber found, for essentially the same reasons as it had given in relation to Article 8 of the Convention, that this failure of the authorities to assist the applicants in recovering their property also amounted to a breach of their rights under Article 1 of Protocol No. 1 to the Convention.

Article 13 of the Convention

Recalling Galic v. the Federation of Bosnia and Herzegovina, the Chamber stated that for Article 13 to apply it is not necessary for an applicant to show an actual violation of another one of his Convention rights. It is sufficient for an applicant that he has an arguable claim that such a violation has occurred. The Chamber further stated that the applicants clearly had arguable claims that their rights had been violated and that accordingly they were entitled to an effective remedy in respect of those claims. As the Chamber had already found that there had been no sufficient response to the applicants' various claims and petitions to the administrative authorities, it followed that in this respect there had also been a violation of Article 13 in isolation.

Remedies

The Chamber ordered the Federation to reinstate the applicants into possession of their apartments immediately and in any event at the latest by 10 June 2002. Further, the Chamber ordered the respondent Party to pay the applicants sums varying from KM 6,800 to KM 7,200, as compensation for non-pecuniary damages and the loss of use of their home. In addition, the Chamber ordered the Federation to pay to the applicants in each registered case KM 200 for each further month that they remain excluded from their apartments as from May 2002 until the end of the month in which they are reinstated, each of these monthly payments to be made within 30 days from the end of the month to which they relate. Finally, the Chamber ordered the Federation to take all necessary measures to ensure the respect for and the implementation of Article 18f of the new Abandoned Property Law, which provides for criminal responsibility of administrative officials who do obstruct the return process.

Decision adopted 10 May 2002
Decision delivered 11 April 2002


DECISION ON REQUEST FOR REVIEW

The respondent Party submitted a request for review in which it argued that (a) the amount of compensation for non-pecuniary damages was not in accordance with the previous decisions of the Chamber; (b) the orders to compensate the applicants for loss of use of their homes were excessive; and (c) that the respondent Party was not responsible for the loss of the possession of their apartments and the damage caused to the applicants. The Chamber stated that the respondent Party had failed to give any grounds as to why the issues referred to in the request for review would raise "a serious question affecting the interpretation or application of the Agreement or a serious issue of general importance". As the request for review failed to meet the first of the two requirements set forth in Rule 64 paragraph 2 of its Rules of Procedure, the Chamber decided to reject the request for review.

Decision adopted 5 July 2002.