in the case of

DŽEVAD MAHMUTOVIĆ v. THE REPUBLIKA SRPSKA
(Case No. CH/98/892)

FACTUAL BACKGROUND

The applicant, Mr. Dževad Mahmutović, is of Bosniak origin and lives in Prnjavor, Republika Srpska. On 17 May 1998 the applicant's wife, Mrs. Bedrija Mahmutović, died. Two days later she was buried in the Muslim Town Cemetery, where the Mahmutović family owns a parcel and where all its members have been buried for decades. On 21 October 1994 the Municipality of Prnjavor had issued a decision according to which the Muslim Town Cemetery could no longer be used and the burial of all deceased Muslims would have to be performed at "the new town cemetery in the eastern part of the town". At the time of the Chamber's decision, this new cemetery did not yet exist. On 30 July 1998 the Prnjavor Municipality issued a decision ordering the applicant to conduct (at his own expenses) the exhumation of his wife and to move her remains to the new town cemetery. The applicant was also obliged to request the Municipal Sanitary Inspection for permission to exhume his wife. According to the same decision, an appeal could be filed within 15 days, but it would not have suspensive effect. On 20 August 1998 the applicant filed an application for provisional measures with the Chamber, asking for an order permanently prohibiting the execution of the decision of the Prnjavor Municipality to exhume the remains of his wife from the Muslim Town Cemetery and to re-bury her at the new town cemetery. The applicant complained that the order to exhume his wife amounted to discrimination against him in the enjoyment of his right of freedom of religion on the grounds of religion and national origin.

FINDINGS OF THE CHAMBER

Discrimination

The Chamber decided to consider the case under Article II(2)(b) of the Agreement, i.e. the prohibition of discrimination, in relation to the right to private and family life and the right to freedom of religion, as provided in Articles 8 and 9 of the Convention.

As to Article 8 of the Convention, the Chamber stated that the authorities' action in ordering the exhumation of the applicant's wife from the family plot was so closely related to the private and family life of the applicant that it fell within the ambit of Article 8.

As to Article 9 of the Convention, the Chamber noted that the applicant's wife was buried in the Muslim Cemetery in accordance with Muslim religious regulation and practice. Therefore, the Chamber found that such a burial fell within the scope of Article 9, in so far as this provision relates to freedom of religion including, in particular, freedom to manifest one's religion in practice and observance.

With reference to the Municipality's Decision of 21 October 1994 providing for the closure of the Muslim Town Cemetery, the Chamber stated that, even if it was taken before the entry into force of the Dayton Peace Agreement, it remained in force after that date and, therefore, affected the applicant's rights since it formed the legal basis for the decision of 30 July 1998, ordering the exhumation of the applicant's wife. Moreover, the Chamber found the same decision discriminatory because it affected only the Muslim Cemetery and it did not state any reason for the closure of the cemetery. The Chamber noted that also the respondent Party had not been able to indicate the reasons underlying the decision.

The Chamber noted that the respondent Party had not given any reasons as to why the applicant should have been required to exhume his wife beyond the fact that the cemetery had been closed. The Chamber found that the continued closure of the cemetery, under a decision taken in pursuance of a policy of ethnic cleansing, involved differential treatment of Muslims and could not be regarded as pursuing any legitimate aim. The Chamber, therefore, found discrimination against the applicant in the enjoyment of his rights to private and family life under Article 8 of the Convention and his freedom of religion as provided for in Article 9.

REMEDIES

The Chamber ordered the Republika Srpska to desist from any steps to remove the remains of the applicant's wife from their present place of burial. The Chamber also ordered the Republika Srpska to pay the applicant, within three months from the date of the decision, 1,000 KM as monetary compensation for moral damages. 

Mr. Manfred Nowak attached a Concurring Opinion to the decision.