in the case of

Đ.M. v. THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/98/756)

FACTUAL BACKGROUND

The applicant, of Bosniak origin, owns a house in Kablići in Canton 10. In 1993 a family of Croat origin occupied the house by force and has remained there since. The applicant and her family left the country shortly thereafter. The applicant initiated proceedings before the Livno Municipal Court and municipal authorities in 1997, seeking to regain physical possession of the house. There have been no developments in the proceedings to date. 

FINDINGS OF THE CHAMBER

Discrimination

The Chamber found a pattern of discrimination consisting of a failure on the part of the Livno Municipal Court and municipal authorities to process claims for repossession of property belonging to returning Bosniaks or of not enforcing judgements rendered in favour of such plaintiffs against defendants of the Croat majority. The Chamber concluded that the applicant had been discriminated against in the enjoyment of her rights under Article 6 of the European Convention on Human Rights (right to a fair hearing before an independent and impartial tribunal), Article 26 of the International Covenant for Civil and Political Rights (right to equal protection of the law), Article 8 of the Convention (right to respect for home), Article 1 of Protocol No. 1 to the Convention (right to peaceful enjoyment of possessions) and Article 13 of the Convention (right to an effective remedy before a national authority). 

Article 6 of the European Convention on Human Rights

Considering the above Convention provisions also in isolation, the Chamber found that an objective observer could legitimately doubt that the Municipal Court in Livno in general and the judge on the applicant's case in particular had been, and would be, independent in the applicant's case. A court not entirely independent of the political bodies could not comply with the requirement of impartiality and the applicant could not expect to receive a fair hearing of her case. There had thus been a violation of Article 6 paragraph 1 already at the present stage of the court proceedings.

Article 8 of the Convention

The passivity shown by the municipal and cantonal authorities in response to the applicant's various petitions aiming at her being able to re-enter a house which is indisputably hers amounted to a lack of respect for her "home" within the meaning of Article 8 paragraph 1. Accordingly, there had also been a violation of the applicant's rights under Article 8.

Article 13 of the Convention

There had been no response whatsoever to the applicant's various claims and petitions to the administrative authorities. Thus, there had also been a violation of Article 13.

Article 1 of Protocol No. 1 to the Convention

The authorities' failure to assist the applicant in recovering her house also amounted to a violation of her rights under Article 1 of Protocol No. 1.

REMEDIES

The Chamber ordered the respondent Party to take, through its authorities, immediate steps to reinstate the applicant into her house. The respondent Party was further ordered to pay, in non-pecuniary damages, KM 4,000 and an additional sum of KM 10 each day from the date of delivery of the Chamber's decision until the applicant regains possession of her house. 

Mr. Vlatko Markotić and Mr. Želimir Juka, joined by Mr. Vitomir Popović and Mr. Miodrag Pajić, attached a Dissenting Opinion to the decision.
REQUEST FOR REVIEW

The respondent Party requested the Plenary Chamber to review the decision adopted by the Second Panel. On 5 April 2000 the Plenary Chamber rejected the request for review.