VI. STRATEGIES FOR DEALING WITH THE CASELOAD

The Chamber has considered over the years various strategies and procedures for dealing efficiently with its huge caseload and developed several "model" decisions for use in certain types of cases. Scarce resources, especially in terms of staffing, have meant that these strategies, procedures and mechanisms for dealing with its caseload could only be partially implemented. Only in 2003 have additional resources been given to the Chamber to facilitate the processing of these cases. Time is of the essence, however, as the Chamber's mandate expires at the end of 2003 and the organisation, coordination and legal and administrative work involved in the ultimate processing of many thousands of cases is considerable. Moreover, other important considerations relating to the purpose and legal mandate of the Chamber and its role in contributing to the rule of law in Bosnia and Herzegovina influence the Chamber's strategic approach.

According to Article VIII(2)(e) of Annex 6 to the Dayton Peace Agreement, "the Chamber shall endeavor to accept and to give particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds".

In pursuance of this principle set forth in its founding instrument, the Chamber has adopted the following informal guidelines in addressing its caseload:

- Priority is given to allegations of systematic violations of human rights;
- priority is given to allegations of particularly severe violations of human rights, such as violations of the right to life, unlawful detention, disappearances, serious violations of the principle of fair trial;
- priority is given to allegations of discrimination;
- moreover, although not expressly mentioned in Article VIII(2)(e), the Chamber gives priority to applications
which either
(a) raise novel legal issues of particular relevance for Bosnia and Herzegovina, so that the Chamber's decision can serve as a precedent or guideline for domestic decision-makers, including the administrative authorities and the courts; or
(b) are particularly important for the promotion of the rule of law in Bosnia and Herzegovina.

A. SYSTEMATIC VIOLATIONS OF HUMAN RIGHTS

As to the mandate to give priority to allegations of systematic violations of human rights, the Chamber has noted that most of the cases it deals with are individual instances of systematic (at least in the sense of widespread) violations of human rights. This is, e.g., the case of obstruction of the refugee return process resulting in violations of the right to respect for a person's home and property, the freezing of foreign currency bank accounts, employment discrimination, failure to investigate war-time disappearances and systematic failure of courts to decide within a reasonable time cases brought by members of minorities. These types of cases account for approximately two-thirds of the applications registered with the Chamber. With regard to these systematic violations of human rights, the Chamber sees its role as deciding "lead cases" or precedent-setting cases, which provide domestic and international decision-makers with the principles to be applied in order to address the remaining cases sharing the same fact pattern.

B. CATEGORIES OF CASES THAT SIGNIFICANTLY CONTRIBUTE TO THE CHAMBER'S CASELOAD

(i) Applications that fit model decisions on admissibility and to strike out

The Chamber has developed model decisions for standard inadmissibility decisions and strike out decisions, which significantly expedite the drafting process in standard situations. These model decisions concern, e.g., cases that are outside the Chamber's competence ratione temporis, where the applicant has failed to exhaust domestic remedies, where the applicant asks the Chamber to act as an additional appeals instance to the domestic judicial system, or cases in which the applicant complains about his/her eviction from an apartment he/she has to vacate in order to allow the return of the pre-war occupant.

(ii) Right to respect for one's home and right to property in the context of the repossession of pre-war apartments and houses

As of the end of the year 2002, more than 3,000 applications lodged with the Chamber concerned the applicants' right to respect for their home and their right to property in the context of the repossession of pre-war apartments and houses, often coupled with complaints of unreasonable length of proceedings and allegations of discrimination.

During 2002, the Chamber's strategy to more effectively deal with this huge caseload has had three prongs: the grouping of cases by the Municipality in which the pre-war property is located; the exchange of information on repossessions with the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC) as part of a pro-active approach towards identifying cases in which the applicant has repossessed his or her pre-war dwelling; and strike out decisions under Article VIII(3) of the Human Rights Agreement where an applicant has repossessed his or her pre-war home.

Regarding the latter prong, in the course of the year 2002 the Chamber has changed its approach to cases in which the applicant has been reinstated into possession of his or her pre-war home but asks the Chamber to still issue a decision recognising the past violation of his or her rights and ordering the respondent Party to pay compensation. Under Article VIII(3) of the Annex 6 Human Rights Agreement, the Chamber may strike out an application from its case list when "the matter has been resolved" and it is compatible with respect for human rights not to further pursue consideration of the matter. The previous approach of the Chamber, as set forth in the case of S.P. (case no. CH/99/2336, decision to strike out of 2 July 2001), was that the Chamber would in each case of repossession balance several elements when deciding whether to decide on admissibility, merits and possible remedies of a case of reinstatement into the pre-war home or rather decide to strike the case out. These elements included the difficulties faced by the domestic authorities in implementing the property legislation in force in a timely manner, the stage the proceedings have reached when the Chamber is informed of the applicant's reinstatement, and the circumstances of the applicant's reinstatement, such as "the length of time the applicant has had to wait for reinstatement; other exceptional suffering incurred by the applicant ... and the proven effectiveness, in a particular locality, of the domestic remedies".

In October 2002 the Chamber decided to adopt a slightly different approach. In Vujicic (case no. CH/99/2198, Vujicic v. the Federation of BiH, decision to strike out of 10 October 2002), the applicant had been reinstated into possession of his pre-war apartment in Sarajevo after nearly four years of proceedings before the domestic authorities. He asked the Chamber to continue consideration of his case, to find a violation of his human rights and to award him compensation. In its decision to strike out the application, the Chamber recalled its obligation to give particular priority to allegations of especially severe or systematic violations and of discrimination. The Chamber further observed that there are presently over 10,000 undecided applications pending before it, and that this number is growing month by month, at an increasing rate. The Chamber also noted the significant progress in the return and property law implementation process in Bosnia and Herzegovina since it adopted the S.P. decision. The Chamber observed that, the applicant having been reinstated, the ongoing alleged human rights violation has been brought to an end and the main issue of the application solved. In the light of all these considerations, the Chamber decided to strike the application out, notwithstanding the understandable request of the applicant, on the ground that "it is no longer justified to continue the examination of the application" within the meaning of Article VIII(3)(c) of the Agreement. The Chamber finally found that this result is "consistent with the objective of respect for human rights, as this "objective" must be understood to embrace not only the individual applicant's human rights, but also the Chamber's more general mandate to assist the Parties in securing to all persons within their jurisdiction the highest level of internationally recognised human rights".

(iii) Applications with a clear failure to exhaust domestic remedies

The Chamber has continually received a great number of cases in which applicants file an application to the Chamber without awaiting a final decision in their case by the domestic authorities. Under Article VIII(2)(a) of the Human Rights Agreement, applicants are required to exhaust effective domestic remedies before applying to the Chamber. The Chamber has in its case-law stressed the requirement that the remedies available be effective, and has considered on the merits many applications in which domestic remedies had not formally been exhausted, because the prospect of their providing relief to the applicants' complaints was non-existent in practice.

However, the Chamber receives a significant number of applications in which the applicants completely disregard the existence of a domestic court system competent to deal with their grievances, or address the Chamber more or less at the same time as they initiate proceedings before domestic authorities. In most of these cases, there is prima facie no reason to doubt that the domestic remedy could be effective. These applications therefore appear to be clearly inadmissible.

The Chamber could increase the number of decisions issued by identifying these cases and declaring them inadmissible. However, it may be questioned whether the Chamber's resources are well-invested in issuing numerous decisions rejecting clearly inadmissible applications. The argument could be made that an increased number of such inadmissibility decisions could discourage future applications of the same kind. However:

(a) most applicants are not represented by lawyers, and therefore not aware of admissibility requirements; and
(b) submitting an application to the Chamber does not involve any costs, while lawyers' fees and court expenses are for many persons an obstacle to litigation before domestic courts. They are therefore not easily discouraged from filing applications with the Chamber instead of the domestic court system.

(iv) CRPC decision implementation cases

The Chamber developed a model decision on admissibility and merits for cases concerning the failure of the housing authorities to implement decisions of the Annex 7 Commission for Real Property Claims of Refugees and Displaced Persons (CRPC). In the course of 2002 about 30 cases were decided on the merits using this model decision. Subsequently, the Chamber abandoned the use of such model decisions, for reasons connected to the explicit and mandatory introduction of the "chronological order" requirement for the reinstatement process in the new property law implementation legislation, imposed by the High Representative in December 2001. In issuing such decisions, - if issued in the streamlined procedure - the implementation of the Chamber's decisions within the deadlines set by the Chamber risked being at odds with the respect of the statutory chronological order requirement. This illustrates a circumstance in which an approach to the Chamber's caseload aiming at the expeditious decision of as many cases as possible might prove counterproductive when viewed within the larger context.

(v) JNA apartment cases

A common theme of the Chamber's case-law has been the decisions concerning the right to respect for home, the right to property, and the right to access to a court and to fair and expeditious proceedings in the context of the so-called "JNA apartment cases". More than 1,000 such cases had been lodged with the Chamber as of the end of 2002, and the Chamber has decided on the merits more than 125 of them. However, the reluctance of the Federation legislature, administration and judiciary to implement the Chamber's decisions in this matter, means that only a part of these cases can be struck out as a result of the matter being resolved, while the Chamber again and again has to examine JNA apartment applications on the merits. The changes to the legislation and/or to the administrative practice necessary to implement the Chamber's decision of December 2001 in Miholic & Others (case nos. CH/97/60 et al., decision on admissibility and merits of 4 December 2001) have not been put in place during the entire year 2002 (and the first third of the year 2003). Moreover, even where the legislation concerning JNA apartments has been changed to implement the Chamber's decisions, the authorities continue to obstruct the implementation of the amended laws in individual cases (see, e.g., the Chamber's decision in case no. CH/99/2028, Crnogorcevic v. the Federation of BiH, decision on admissibility of 11 October 2002).

(vi) Right to property in frozen foreign currency account cases

About 2,000 "frozen foreign currency account cases" have been lodged with the Chamber. All but about 30 of these cases concern foreign currency savings deposited with banks now located in the Federation, the remaining accounts with banks in the Republika Srpska and the Brcko District of BiH. In May 2000 the Chamber delivered its decision in the first four of these cases. In order to comply with the Chamber's remedial orders issued in that decision, the government and legislature of the Federation have amended the relevant legislation. However, a decision of the Constitutional Court of the Federation and the lack of response thereto of the government and legislature have put into question the steps taken by the Federation authorities to implement the Chamber's May 2000 decision. In October 2002, the Chamber issued a new decision concerning old foreign currency savings in the Federation, in which it found that:

"[T]aken together, the decision of the Federation Constitutional Court, the lack of responsive legislative action, and the continued application of the Citizens' Claims Law have led to a state of legal confusion with regard to the applicants' old foreign currency savings accounts. There is no justification for the current uncertainty, which leaves the applicants' claims to their property in a state of oblivion and neglect. Meanwhile, as the privatisation process moves forward without clarification of the law, the potential consequences of the applicants' insistence on their property rights become more severe."

(Case nos. CH/97/104 et al., Todorovic & 6 Others v. BiH and the Federation of BiH, decision on admissibility and merits of 10 October 2002, paragraph 148).

As a consequence, the remaining 2,000 "old foreign currency account cases" pending before the Chamber remain unresolved. The Chamber will in the course of 2003 again examine whether the Federation legislature has created a legal framework that strikes an acceptable balance between the rights of the individual applicants (holders of old foreign currency accounts) and the public interest. The prospects of resolving the remaining frozen foreign currency account cases in a standardised and expedited procedure are, at the current stage, remote.

(vii) Employment discrimination cases

More than 500 applications pending before the Chamber allege discriminatory termination of labour relations, mostly on grounds of ethnic/national origin. Although in most of these cases the termination or suspension of the employment is linked to the armed conflict, the Chamber has found that it is competent ratione temporis in a majority of the cases considered until now. As several decisions of the Chamber during the year 2002 have shown, the current legal framework and practice of the authorities, both administrative and judicial, do not provide any effective remedy for these applicants. On the contrary, these cases show that systematically a violation of the right to fair trial within a reasonable time is added to the alleged violation of the right not to be discriminated against in the right to work in the aftermath of the armed conflict (see case no. CH/98/948 Mitrovic v. the Federation of BiH, decision on admissibility and merits of 9 June 2002; case no. CH/01/7351 Kraljevic v. the Federation of BiH, decision on admissibility and merits of 12 April 2002; and case no. CH/99/1714 Vanovac v. the Federation of BiH, decision on admissibility and merits of 8 November 2002).

As a consequence, the Chamber also has found that the considerable backlog of cases falling into this category cannot be addressed in any standardised, summary or otherwise expedited procedure.

(viii) Srebrenica cases

In November 2001 the Chamber has begun to receive applications that can be classified as "Srebrenica cases". In the course of the year 2002 more than 1,500 of these applications have been lodged with the Chamber. The applicants complain of the disappearance of the spouse or one or several relatives in the aftermath of the fall of Srebrenica in July 1995, of the failure of the government of the Republika Srpska to take any steps to clarify the fate of these persons or the whereabouts of their mortal remains, to punish the perpetrators and to compensate the relatives of the victims. The Chamber has issued a decision on admissibility and merits concerning 49 of these cases in March 2003.

C. BALANCING QUANTITY OF DECIDED CASES V. IMPACT OF DECISIONS

The Chamber's output, in numerical terms, has been considerably increased in the course of the year 2002: 675 applications have been decided, 80 percent more than the 377 decided in 2001. During the year 2003 the number of cases decided will be further increased by allocating a significant portion of its resources (i.e. lawyer and translator working hours) to the issuance of decisions in strike-out cases, cases permitting the drafting of standardized decisions, and clearly inadmissible cases. However, in pursuing such a "quantity-oriented" approach, the Chamber is aware of the risk that it is mostly deciding cases which either are already decided from a substantive point of view (because the matter is solved in fact, or because the Chamber has stated the law in a lead decision addressing the same issue, thereby substantially deciding the other identical cases), or which do not even come close to revealing a violation of the Human Rights Agreement.

Therefore, to balance quantity with quality and impact, the Chamber will continue to allocate most of its resources during the remaining part of 2003 to deciding:

(a) cases involving requests for provisional measures, which by their nature have to be dealt with urgently; and
(b) cases involving allegations of particularly serious violations of human rights and discrimination, and cases raising new legal issues, where the Chamber's decision can function as a precedent for domestic courts, and, finally, other cases which promise to have a particular impact on the rule of law in Bosnia and Herzegovina.

It is fair to say that the overall procedure (written procedure involving the parties, possibly oral hearing, legal research of both domestic and international law, drafting of memoranda and decisions, deliberations of the judges) in deciding one important case on admissibility and merits on average involves the same amount of resources (lawyers', translators' and judges' time) required to decide perhaps 40 or 50 of the applications that could be solved by a standardised decision.

Nonetheless, the Chamber's impact on respect for human rights and the rule of law in Bosnia and Herzegovina is secured primarily by these "big", resource-intensive decisions, and not by the sixty to one hundred inadmissibility and strike-out decisions the Chamber issues every month.

It is therefore necessary for the Chamber to balance two conflicting necessities: on the one hand, to solve the important and urgent cases it is mandated to give priority to or novel cases that will set precedents or cases that are of particular importance for the rule of law in Bosnia and Herzegovina, and, on the other hand, to decide as many of the "smaller", "standard", strike-out and inadmissible cases as possible, in order to limit the uncontrolled growth of its backlog of unsolved cases.

D. LIMITATIONS ON STREAMLINING

It is worth mentioning that the Chamber has considered the legal feasibility of more radical measures for the streamlining of its procedures, which would touch the very core of the judicial process before the Chamber, e.g. introducing a judge rapporteur system, or small panels for standard inadmissibility and strike out decisions (possibly composed only of domestic judges). However, the provisions of Annex 6 place severe limitations on the legal possibility to validly change proceedings before the Chamber in these respects. Moreover, other practical difficulties associated with these changes leave open to doubt whether they would actually increase the Chamber's ability to solve substantially more cases.