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  Annual Report 2002


The Human Rights Chamber for Bosnia and Herzegovina, first constituted in March 1996, has just completed its seventh year of functioning. Many changes have taken place since the Chamber issued its first decision on the merits in the case CH/96/01 Matanovic v. the Republika Srpska. From that early beginning when the electricity failed in 1997 during the public hearing in that case, and the hearing had to be continued under the glow of candlelight, until today, the Chamber has deliberated, debated and decided on a couple thousand cases involving a diverse range of alleged violations of human rights. Over the years it has established itself into an effective and impartial judicial institution that has earned the trust and confidence of the citizens of Bosnia and Herzegovina.

The year 2002 has seen the largest number of new applications - 4,177 - filed to the Chamber in any one year - an average of 348 per month. At the same time the Chamber has resolved almost twice as many cases as in the previous year -- 675 cases. But the rate at which cases are resolved simply cannot keep pace with the ever-increasing rate at which new applications are received. The increase is partly explained by the submission in 2002 of more than 1,500 individual applications by family members of Bosniak men who disappeared during the fall of Srebrenica. A large number of applications relating to housing issues are still received, however, which reveals that the problem is not yet solved seven years after the end of the war.

But statistics do not reflect the actual work of the Chamber. During 2002, many important cases were decided among which was the first freedom of information case ("ORDO"- RTV "Sveti Georgije" v. State BiH), and the first case related to the expulsion of aliens and nationals (Boudellaa, Lakhdar, Nechle and Lahmar v. State BiH and the Federation of BiH). Other important cases include Škrgic et al. v. the Federation of BiH, which concerned the applicants' attempts to gain recognition of their claimed rights as shareholders of Agrokomerc, one of the largest companies in Bosnia and Herzegovina before the war; the cases Rizvic, Huskic, Šabancevic, Sefic and Gracanin v. the Federation of BiH which concerned claims of maltreatment in custody and the right to a fair trial after the applicants had been arrested, indicted and convicted for having committed war crimes or murder; and Todorovic et al. v. State BiH and the Federation of BiH which concerned frozen foreign currency savings accounts. In March 2003 the Chamber also issued its decision in the "Srebrenica cases", directed against the Republika Srpska, which dealt with the rights of family members to be informed about the fate and whereabouts of their loved ones.
These decisions reflect the diversity of cases alleging violations of human rights brought before the Chamber but are only a few of the decisions on admissibility and merits decided in 2002 and the first few months of 2003.

Compliance with the Chamber's orders is another matter. In general, it can be said that both the Federation and the Republika Srpska have an uneven record with respect to implementation, although sustained pressure from the international community has helped to push the rate of compliance up in recent years. Compensation awards have been paid in many cases, but not all. Some orders seem to be particularly difficult for the respondent Parties and often take years to implement e.g., those which require the granting of permits to rebuild mosques or investigations into disappearances and allegations of maltreatment by police. Although few orders have been directed against the State of Bosnia and Herzegovina, they are virtually ignored. There is still some way to go before the citizens of Bosnia and Herzegovina can feel confident that when a decision is made by the Chamber, not to mention by the domestic courts, it will be fully respected without being subjected to a political filter.

The future of the Human Rights Chamber is a looming uncertainty. Its current mandate expires at the end of 2003. The mandate was extended an additional three years at the end of 2000 in recognition of the continuing need for this type of institution to address the ongoing human rights violations in Bosnia and Herzegovina. The preferred option of the international community, which has been under discussion for several years, is to "merge" the Chamber and the Constitutional Court of Bosnia and Herzegovina after the expiration of this extended mandate period. The legal, procedural and administrative difficulties associated with this option, however, have defied satisfactory solution. Toward the latter part of 2002, however, this issue appears to have been taken up again with renewed urgency. The position now of the proponents of a "merger" is that the Chamber will cease to function on 31 December 2003 and all remaining pending cases and all future applications will then be transferred or directed to the Constitutional Court. The Chamber is not aware of the position of the signatories to Annex 6 (Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska) on the "merger".

The Chamber is concerned because the Constitutional Court has not been functioning at all since May 2002 due to the failure to appoint two of the new members. Moreover, the new Constitutional Court, when it is finally constituted, will already have its own backlog of cases to deal with.

If the Chamber is to disappear, however, and its remaining pending cases taken over for ultimate resolution by the Constitutional Court, the legal opinion of the Chamber (adopted on 7 November 2002 and distributed to national and international decision-makers) is that this can be effected only through amendments to the Constitution of Bosnia and Herzegovina and to Annex 6 of the Dayton Peace Agreement. In the opinion of the Chamber, these are necessary if there is to be no diminution in the protection of human rights in Bosnia and Herzegovina as stipulated in Article 10 paragraph 2 of the Constitution of Bosnia and Herzegovina.

In April 2002 Bosnia and Herzegovina acceded to the Council of Europe and in July ratified the European Convention on Human Rights. It has been said that now that the country is under the jurisdiction of the European Court of Human Rights, the Chamber is no longer needed. But cases filed with the Chamber before ratification of the European Convention are not within the jurisdiction of the European Court. Regarding the possibly "overlapping competence" of the Chamber and the European Court after July 2002, it will be up to the European Court to decide whether proceedings before the Chamber will be regarded as a domestic remedy to be exhausted before a case can be declared admissible in Strasbourg or as "another procedure of international investigation or settlement" in which an application already submitted to the Chamber will have to be declared inadmissible by the European Court in accordance with Article 35(2)(b) of the European Convention.

Also, in respect of the "overlapping competence" of the Chamber and of the European Court, whether before or after 31 December 2003, it should be noted that:

The Human Rights Chamber has jurisdiction not only in relation to allegations that the rights protected in the European Convention are not respected and secured, but also on alleged discrimination in the enjoyment of rights protected by other international treaties (Article II(2)(b) of Annex 6). In the practice of the Chamber those cases concerning discrimination in the right to work, the right to social security and the right of access to the public service have become more and more important. Discrimination in employment or reemployment is one of the most severe problems for the return of refugees and displaced persons.

Annex 6 confers on the Chamber the competence to issue provisional orders for the protection of human rights. As the judiciary in wide parts of Bosnia and Herzegovina is not yet functioning properly, the Chamber has made use of this competence in numerous cases. It has been an effective means of protecting human rights in practice. The European Court of Human Rights has no power to issue legally binding provisional orders. The Chamber also has wider power than the European Court to make legally binding orders to remedy the violations of human rights which it finds.

The reform of the judiciary should be able, in the future, if performed, to render this institution less necessary. But, acknowledgement that the establishment of the rule of law is fundamental to the future of Bosnia and Herzegovina came late to the international community. Steps are finally being taken now but the process will not take place overnight and the results of that process will take even more time.

The end of the Chamber's mandate may be almost at hand. The decision as to whether the Chamber will receive an extension of its mandate, be transformed in some way or simply disappear at the end of 2003 is in the hands of national and international decision-makers. But the year 2002 has not been much different from 2001 in terms of respect for human rights and the year 2003 is already proving to be much the same. The Chamber's fate should not be decided on the basis of a pre-determined date selected for its demise, but rather on a careful and honest evaluation of the context in which the Chamber operates to determine whether a need still exists for the continuation of such an institution in Bosnia and Herzegovina to protect human rights.

Michčle Picard
President of the Chamber