in the case of

THE ISLAMIC COMMUNITY IN BOSNIA AND HERZEGOVINA v. THE REPUBLIKA SRPSKA (Case No. CH/96/29)

FACTUAL BACKGROUND

The applicant represents the religious and ethnic minority of Bosnian Muslims in Banja Luka, a city currently with a majority population of Serb descent. Before the war some 30,000 Muslims lived in the Banja Luka region and could perform their religious practice in 15 mosques in Banja Luka. The applicant claimed to be the owner of 15 mosques destroyed in the city in 1993, as well as of the land on which they stood. The applicant alleged that the respondent Party was responsible for the destruction of the mosques and maintained that the municipal bodies of Banja Luka had continued to destroy and remove remains of the mosques even after the Dayton Agreement entered into force on 14 December 1995. In March 1997 the applicant requested permission to reconstruct seven of the mosques (Ferhadija, Arnaudija, Gazanferija, Sefer Bey's, Hadži-Perviz, Stupnica, and Hisečka) and to erect fences around the sites. The Banja Luka municipality had not issued any decisions on these requests.

The applicant complained that the killing, expelling and displacement of Muslims in Banja Luka and the destruction of its 15 mosques (prior to the entry into force of the General Framework Agreement), taken together with the subsequent removal of the remains of those mosques, the desecration of adjacent graveyards, the destruction of a further building on the site of Ferhadija, the municipality's ongoing refusal to permit the construction of seven mosques or even the erection of fences around the remains of the sites, the inability for Muslim believers to worship on adequate premises, the local authorities' failure to protect believers during worship and funerals, and the refusal to allow the burial of the late Mufti on the Ferhadija mosque site (all events which occurred after 14 December 1995), constituted discrimination against the applicant and its members on the grounds of religion and national origin in the enjoyment of their right to freedom of religion and the right to peaceful enjoyment of their possessions. This discrimination had allegedly continued since the destruction of the mosques in 1993.

CHAMBER'S FINDINGS ON ADMISSIBILITY

Competence ratione personae

The Chamber noted that the applicant is an independent religious community to which belong, among others, all Muslims in Bosnia and Herzegovina. The applicant could therefore legitimately claim status as a "victim" appearing on behalf its members in Banja Luka in respect of the alleged violation of their freedom of religion, as guaranteed by Article 9 of the European Convention on Human Rights. The Chamber understood the complaint regarding property rights to have been brought by the Islamic Community in its own right, as a legal person capable of possessing property under domestic law. Thus, the applicant could also claim status as a "victim" in relation to the alleged violation of its property rights under Article 1 of Protocol No. 1 to the Convention.

Competence ratione temporis

In so far as the applicant had alleged that the authorities of the respondent Party were responsible for, or allowed, the destruction of its 15 mosques in Banja Luka in 1993 as well as the killing, expelling and displacement of Muslims in the area prior to the entry into force of the General Framework Agreement, the Chamber found that it was not competent in time to adjudicate on the case. The remaining complaints related to a number of events which, taken as a whole, allegedly formed a pattern of ongoing discrimination. The Chamber found itself competent to examine this situation in so far as it had continued after 14 December 1995.

Lis alibi pendens

The Chamber found that the actions taken by the Commission to Preserve National Monuments (established by Annex 8 to the General Framework Agreement) in regard to sites of destroyed mosques in Banja Luka did not preclude the Chamber from examining the applicant's grievances relative to rights and freedoms guaranteed by the Annex 6 Human Rights Agreement to the General Framework Agreement.

Exhaustion of effective domestic remedies

The Chamber recalled that the burden of proof was on the respondent Party to show that there was, both in theory and in practice, an effective remedy available to the applicant that could have afforded redress in respect of the breaches alleged. The Chamber could not find it established that such a remedy had been or was available to the applicant.

CHAMBER'S FINDINGS ON THE MERITS

Article 9 of the European Convention on Human Rights

The Chamber found that the failure of the authorities in Banja Luka to respond to the applicant's request in March 1997 for permission to rebuild seven of the destroyed mosques was an interference with, or a limitation of, the right of the Muslim believers in Banja Luka to freely manifest their religion as guaranteed by Article 9. The Chamber found no legitimate reason for this interference. Furthermore, the authorities' systematic failure to protect Muslim believers against assaults, provocation and other disturbances during worship and funerals violated the respondent Party's positive obligation to secure the right to freedom of religion for the applicant's members in Banja Luka. All elements considered, Article 9 of the Convention had been violated.

Article 1 of Protocol No. 1 to the Convention

The Chamber found that the objects that remained on the sites of the destroyed mosques on 14 December 1995, and the applicant's right under the RS Law on Building Land to use the land on which the destroyed mosques had stood were "possessions" protected by Article 1 of Protocol No. 1. The destruction and removal of objects on the sites after 14 December 1995 had deprived the applicant of its possessions. The continued refusal of the Municipality to allow the applicant to reconstruct any of the mosques amounted to a control of the use of its possessions. The respondent Party had failed to identify any general interest justifying the overall interference with the applicant's property rights. Article 1 of Protocol No. 1 had therefore also been violated.

Discrimination

The Chamber found that the case also involved discrimination on grounds of religious and ethnic origin against the applicant and its membership in their enjoyment of the rights guaranteed by the above-mentioned provisions. The Chamber found it established that the Muslim believers in Banja Luka had been subjected to differential treatment if compared with the local Serbian Orthodox majority. In the absence of any justification for such treatment, the Chamber concluded that the Banja Luka authorities had actively engaged in or passively tolerated discrimination against Muslim believers due to their religious and ethnic origin. This attitude of the authorities had hampered, and continued to hamper, the local Muslim believers' enjoyment of their right to freedom of religion for reasons and to an extent which were clearly discriminatory. Accordingly, the respondent Party had failed to meet its obligation to respect and secure the right to freedom of religion without any discrimination.

REMEDIES

The Chamber ordered the respondent Party to:

-take immediate steps to allow the applicant to erect enclosures around the sites of the 15 destroyed mosques and to maintain those enclosures;
-take all necessary action to refrain from the construction of buildings or objects of any nature on the sites of the 15 destroyed mosques and on the cemeteries and other Islamic sites indicated in the application, and not to permit any such construction by any other institution or person, whether public or private, apart from the applicant and persons acting under its authority;
-refrain from destroying or removing any object remaining on the sites of any of the 15 destroyed mosques and on the cemeteries and other Islamic sites indicated in the application, and not to permit any such destruction or removal by any other institution or person, whether public or private, apart from the applicant and persons acting under its authority; and
-swiftly grant the applicant, as requested, the necessary permits for reconstruction of seven of the destroyed mosques (Ferhadija, Arnaudija, Gazanferija, Sefer Bey's, Hadži-Perviz, Stupnica, and Hisečka) at the location at which they previously existed.

Mr. Rona Aybay attached a Concurring Opinion to the decision. Mr. Viktor Masenko-Mavi attached a Partly Concurring and Partly Dissenting Opinion (in Memoriam Vlatko Markotić) to the decision. Mr. Vitomir Popović and Mr. Miodrag Pajić attached a Dissenting Opinion to the decision.