VI. CASES BEFORE THE CHAMBER IN 1999

The following paragraphs are intended to provide a broad picture of the Chamber's work during the year, illustrating the types of cases dealt with and highlighting some of the main developments in its case-law. The full texts of all the decisions rendered during the year, apart from orders for provisional measures and decisions striking applications out of the list, are included in the two companion volumes of 1999 decisions (January-July and August-December). A list of 1999 decisions is attached to this Report as Annex F, and summaries of a selection of the decisions on the merits are attached as Annex G. Copies of the Chamber's decisions are also available from the Secretariat and via the internet at the following address: www.gwdg.de/čujvr/hrch/hrch.htm

It will be seen that the number of cases pending before the Chamber, and the number of decisions rendered, have continued to expand. As in previous years a high proportion of the cases dealt with have concerned housing and property matters. Although changes in domestic legislation, such as the cessation of the laws on abandoned property in both Entities, have improved the situation in this field, violations of the Agreement continue to be found by the Chamber, particularly where the new laws do not adequately remedy past violations or where the domestic authorities do not apply the new laws correctly. Many decisions in property cases, where the Chamber has applied case-law developed in previous years, have been rendered by Panels. A number of highly significant decisions have also been rendered by the plenary Chamber in other areas, notably in relation to discrimination in the fields of employment, freedom of religion and access to justice.

1. Provisional Measures

Article X, para. 1, of Annex 6 empowers the Chamber to order provisional measures. Applicants frequently request the Chamber to use this power either when they submit their applications or at a later stage of the proceedings. Applications entailing such requests must, under Rule 36 of the Rules of Procedure, be reviewed as a matter of priority. When the Chamber is not in session the President of the Chamber or of the appropriate Panel will decide on the request and report the decision to the Chamber at the next session. In practice the Chamber will generally order a provisional measure only where there is some prima facie indication that a protected right might have been infringed and if it appears likely that the applicant will suffer serious or irreparable harm if an order is not made.

As in previous years, requests for provisional measures have been made frequently in cases concerning threatened evictions and numerous orders have been made to protect the position of applicants in such cases. The interests of other parties, such as property owners seeking to return to their properties, often have to be taken into account and balanced against those of the applicant. The Chamber therefore attempts to secure as much information as possible at an early stage, consulting if necessary with international organisations in the field, such as the OSCE, for that purpose.

It may also take into account the observations of third parties whose rights or interests may be affected by a provisional order. In one case (case no. CH/98/1184, Ovuk, Decisions January-July 1999) an applicant complained to the Chamber about a provisional order it had made in another case, preventing the eviction of an individual occupying property belonging to the applicant. The first Panel of the Chamber rejected the complaint on the ground that none of the Parties to the Annex 6 Agreement was responsible for the Chamber's order and the Agreement gave no right to a third party to seek review of the decisions of the Chamber. It pointed out that the Chamber could take into account the observations of the third party in deciding the other case.

Provisional orders are most frequently used to preserve the status quo pending the Chamber's determination of a case. A recent example occurred where eleven applicants of Serb origin complained that they were unable to return to their homes in the Glamoč region because the area was being used as a military training range. They alleged that the authorities had not followed the appropriate procedures for the expropriation of their land. A provisional order was made requiring the Federation to refrain from any action, especially the continuation of military exercises, causing further harm to the applicant's properties (cases nos. CH/99/2425 et al., Ubović and others).

Requests for provisional orders which would involve an alteration of the status quo by, for instance, requiring the restoration of property to an applicant and the eviction of an existing occupant, have generally been refused (see, e.g., cases nos. CH/98/659 et al., Pletilić and others, Decisions August-December 1999).

The Chamber has held that its provisional orders, in contrast to provisional measures indicated by the European Court of Human Rights, are legally binding on the Parties. Where a measure, such as an eviction, is carried out by a public authority in breach of a provisional order, it cannot therefore be considered to be "lawful" for the purposes of the European Convention on Human Rights. The Chamber has thus held that such an eviction breached the right to respect for the home guaranteed by Article 8 of the Convention since it could not be regarded as being "in accordance with the law" for the purposes of paragraph 2 of Article 8 (case no. CH/98/710, D.K., Decisions August-December 1999).

2. Questions of Admissibility

When a case comes before the Chamber it must decide whether or not to accept it taking into account the admissibility criteria set out in Article VIII, para. 2, of Annex 6. The principal criteria so far considered by the Chamber relate to: the exhaustion of any effective domestic remedies; the introduction of the application within six months of the final domestic decision; whether the application is compatible with Annex 6 and whether it is manifestly ill-founded.

In all cases (apart from any case submitted by a Party to the Annex 6 Agreement) the Chamber carries out a preliminary examination of the admissibility of the case before deciding on the further procedure. It may reject an application as inadmissible at that stage, without communicating the case to the respondent Party (see Rule 49 of the Rules of Procedure). It will do so if it considers it clear that the case is inadmissible for one of the reasons referred to in Article VIII para. 2. Over the past year increasing numbers of cases have been thus rejected. If, however, a case is communicated to the respondent Party for observations, the Chamber expects the Party concerned to set out in its written observations any objections it has to admissibility, failing which it may be precluded from arguing at a later stage that the case is inadmissible.

The number of cases rejected for non-exhaustion of domestic remedies has increased during the year, but there are still many cases where, although remedies are theoretically available, the Chamber does not reject the case because it is not satisfied that the remedies in question are effective in practice. In some cases the inactivity of the relevant courts or authorities, or the excessive length of the proceedings, have led the Chamber to conclude that the remedy in question was not effective (see, e.g., case no. CH/97/51, Stanivuk, Decisions January-July 1999). In several cases concerning abandoned property the Chamber has had to consider the effectiveness in practice of remedies established under the new laws of both the Entities, which provide for the cessation of the former laws on abandoned property. The Chamber has held that procedures under the new laws, under which owners or occupancy right holders may apply for the return of their properties, might in principle qualify as effective remedies, but that they cannot be considered effective in practice where the authorities delay unduly to deal with the matter and fail to render or enforce decisions within the legal time limits (see, e.g., case no. CH/97/58 Onić, Decisions January-July 1999; and the Pletilić and others case, sup. cit.).

The Chamber has been called upon to apply the six months time-limit for the submission of applications in relatively few cases so far. Where a case has not been submitted within six months of the final domestic decision the Chamber may have to consider whether there are any special circumstances which could excuse the applicant's failure to apply in time. In one case the first Panel of the Chamber pointed out that under the wording of Article VIII para. 2 of the Annex 6 Agreement the Chamber has greater discretion in deciding whether a case is admissible than does the European Court of Human Rights under Article 35 of the European Convention. Amongst the factors which it will take into account in deciding whether to reject a case under the six months rule, is the question whether the Parties have complied with their obligation under Article XV of the Agreement to give "effective notice" of the terms of the Agreement (case no. CH/99/1433, Smajić, Decisions August-December 1999).

The Chamber has held that a case will be "incompatible" with the Agreement if it is outside its competence ratione temporis, ratione personae or ratione materiae. In relation to its competence ratione temporis, the Chamber has followed a consistent case-law to the effect that the Agreement cannot be applied retroactively and that it cannot therefore deal with complaints relating to events which occurred before the Agreement came into force, on 14 December 1995. Events which occurred before that date may, however, be taken into account as part of the background to subsequent events. Furthermore where an applicant alleges a continuing violation of his rights after the Agreement came into force, the Chamber has jurisdiction to consider the claim. These principles have been applied in a number of cases during the year (see, e.g., cases nos. CH/96/29, The Islamic Community in Bosnia and Herzegovina, and CH/97/67, Zahirović, both in Decisions January-July 1999; and case no. CH/98/892 Mahmutović, Decisions August-December 1999). In the Islamic Community case the Chamber rejected complaints relating to the destruction of mosques and other violations of the rights of Muslims in Banja Luka alleged to have occurred before 14 December 1995, but declared admissible complaints relating to the authorities' subsequent refusal to allow the rebuilding of the mosques and other matters alleged to form an ongoing pattern of discrimination against the Muslim community. The Mahmutović case arose from a decision, taken in 1998, ordering the applicant to exhume his wife from a cemetery which had been closed by a decision taken in 1994. The Chamber held that in considering whether the exhumation decision was discriminatory, it was relevant also to consider the closure decision, which remained in force and gave rise to a continuing prohibition on burials in the Muslim cemetery. In the Zahirović case the applicant was placed on the "waiting list" by his employer during the war and remained on it after the Agreement came into force. The Chamber held that it had no competence to adjudicate on the question whether the original decision had been discriminatory but that in examining the events since December 1995, and in particular the question whether the applicant's continuing presence on the waiting list was discriminatory, it could take into account the events which had occurred earlier.

In considering whether an application is incompatible with the Agreement ratione personae the Chamber may have to consider whether the applicant has the right under the Agreement to bring a case before it and also whether the application is directed against one of the Parties to the Agreement. In the case of CD Coalition Deputies (case no. CH/98/938, Decisions January-July 1999) a group of deputies on the Prnjavor Municipal Assembly complained of a decision issued by the Assembly designating certain land for public use. The second Panel of the Chamber held that it had no jurisdiction to consider the case, since the applicants did not claim themselves to be victims of the decision in question and had not shown that they had any authority to represent persons who were affected by the decision.

A case will be rejected as incompatible ratione materiae if the subject matter of the complaint is outside the scope of the rights and freedoms guaranteed by the Agreement. This ground of inadmissibility has been applied most frequently where the applicant complains about a matter, such as a breach of employment rights, which is not within the scope of the European Convention and where the other international agreements listed in the Agreement cannot be applied because there is no allegation or evidence of discrimination.

3. Questions Arising on the Merits

Housing and Property Matters

As in previous years the largest single class of cases dealt with by the Chamber has been that relating to housing and other property matters. The Chamber has rendered numerous decisions in cases relating to the annulment of contracts for the purchase of former Yugoslav National Army (JNA) apartments, following the case-law laid down in the leading decision in Medan, Bastijanović and Marković (cases nos. CH/96/3, 8 and 9, Decisions on Admissibility and Merits 1996-1997). Other such cases remain pending before the Chamber but it is hoped that, following changes to the law in the Federation, many of these cases will be resolved. For the time being the Chamber is therefore now giving priority to other matters. Numerous other cases arise from the inability of applicants to recover possession of housing and other property which has either been declared abandoned and allocated to other persons, or simply illegally occupied. Breaches of the European Convention on Human Rights (Articles 6 and 8 and Article 1 of Protocol No. 1 to the Convention in particular) have been held by the Chamber to arise from the acts or omissions of administrative authorities responsible for housing and property matters, from the absence of appropriate court remedies, from failures of the courts to deal with cases properly and expeditiously, and from failures of the responsible authorities to take adequate action for the enforcement of court decisions (see, e.g., the Stanivuk case, sup. cit.; and case no. CH/98/756, Đ.M., Decisions January-July 1999).

Two important groups of property cases, whose outcome may affect many people in similar situations, are pending. The first group concerns frozen foreign currency bank accounts and the second concerns pension reductions. In the frozen bank account cases the applicants claim that their inability to withdraw money held on deposit in the relevant banks involves a breach of their rights under Article 1 of Protocol No. 1 to the Convention. A hearing on the admissibility and merits of four such cases (cases nos. CH/97/48 et al., Poropat and others) was held before the plenary Chamber in March 1999, following which the Chamber has obtained further written testimony and pleadings. A further hearing was held in December 1999 and it is envisaged that a decision in these cases will be issued in the first half of the year 2000. The pension cases have been submitted by former members of the Yugoslav National Army who, until 1992, received pensions from the army pension fund in Belgrade. Payment of these pensions stopped in 1992 and the applicants now receive pensions from a fund in Sarajevo. The sums paid are calculated on the basis that they amount to half the pensions paid in 1992 and the applicants complain that they are denied their full pension entitlement and invoke Article 1 of Protocol No. 1. A number of these cases were communicated to the respondent Parties for written observations in 1999 and a hearing on admissibility and merits has been scheduled for early in 2000 in three of the cases (cases nos. CH/98/706, 740 and 776, Šečerbegović, Biočić and Oroz).

Arrest and Detention

Decisions on the admissibility and merits of two cases concerning allegedly unlawful detention and ill-treatment during such detention, were delivered by the second Panel in November 1999. The first case concerned two persons who were arrested and detained together with Samy Hermas, the applicant in case no. CH/97/45 (Decisions and Reports 1998). The facts of the case were largely similar to those of the Hermas case and the Chamber found breaches of Articles 3, 4, 5 and 13 of the Convention and also found that the applicants had been discriminated against (case no. CH/98/946, H.R. and Momani, Decisions August-December 1999). The second case concerned the arrest and detention of the applicant, a Bosniak resident in Prnjavor, for alleged failure to produce an identity card. The Chamber found that during his arrest and detention he had been physically and verbally abused by a police officer and held that his rights under Articles 3 and 5 of the Convention had been violated and that he too had been discriminated against (case no. CH/98/1786, Odobašić, Decisions August-December 1999).

Civil and Criminal Proceedings

The Chamber has dealt with numerous cases under Article 6 of the Convention concerning civil and criminal proceedings. Issues which have arisen include access to court, the fairness and length of proceedings, and the independence and impartiality of the courts.

In the civil sphere questions under Article 6 have arisen frequently in housing and other property related cases. In Đ.M. (sup. cit.) the Chamber found that in view of the Livno Municipal Court's failure to deal with the applicant's case, she had been denied effective access to court and, furthermore that the court did not meet the requirements of independence and impartiality laid down in Article 6. The Chamber followed this conclusion regarding the independence and impartiality of the court in Zahirović (sup. cit.). In both cases the Chamber took into account written and oral evidence regarding the functioning of the court. It found, amongst other matters, that in the Canton in question the current practice was that only members or sympathisers of the ruling Croat party were appointed to judicial office. Furthermore, instructions had been issued by the Cantonal Governor to the courts seeking to influence judges not to evict displaced persons in cases with Bosniak plaintiffs.

There have been fewer cases regarding criminal proceedings. In one such case (Odobašić, sup. cit.) the Chamber found a breach of Article 6 where, during the applicant's trial, a police officer who had arrested the applicant had been armed, had acted in a threatening manner towards the applicant and other persons, and had made inflammatory statements. This conduct had been tolerated by the presiding judge. The Chamber held that in these circumstances the trial had been deprived of the appearance of fairness and that the impartiality of the judge was also put in question.

Two cases concerning requests for the re-opening of criminal proceedings have been considered by the Chamber (cases nos. CH/98/548, Ivanović, and CH/98/638, Damjanović). In both cases the applicants are seeking to reopen proceedings in which they were convicted of serious offences by military courts during the war and where, they allege, new evidence is available. The domestic courts have refused their requests. The cases raise issues as to the applicability of Article 6, and as to the fairness of the proceedings. Decisions in these cases will be issued early in the new year.

Freedom of Religion

Two cases concerning religious freedom in the Republika Srpska have been decided during the year.

In the case of The Islamic Community in Bosnia and Herzegovina (sup. cit.) the applicants complained inter alia of the effective refusal of the authorities in Banja Luka to allow them to reconstruct mosques which had been destroyed during the war years. The Chamber delivered its decision in May 1999. It found that the applicant's right to freedom of religion under Article 9 of the Convention had been violated by this refusal, and by other incidents affecting the Muslim religious community. It pointed out that the authorities were under a positive obligation to secure the applicants' freedom of religion and that against a background where all the mosques in Banja Luka had been illegally destroyed, and other massive violations of the human rights of Muslims were widely believed to have taken place, they should take measures as a matter of urgency to allow the practice of religion in genuine freedom. The applicants' requests for reconstruction of the destroyed mosques should have been denied or delayed only for the most pressing social need, of which the Chamber found no evidence.

The second case, Mahmutović (sup. cit.), arose from the closure of the Muslim cemetery in Prnjavor. The applicant's wife was buried in the cemetery in 1998 and shortly after the burial the municipal authorities ordered the applicant to have her exhumed and reburied in a "new town cemetery" which did not in fact exist. The legal basis for the decision was a decision taken in 1994 by which the Muslim cemetery was declared closed. The Chamber found that the only plausible explanation for the 1994 decision, for which no reason was given either at the time or in the proceedings before the Chamber, was that it was intended to contribute to the elimination of all traces of the Muslim population in the town. The continued closure of the cemetery, under a decision taken in pursuance of a policy of ethnic cleansing, involved differential treatment of Muslims such as the applicant, and did not pursue a legitimate aim. The Chamber held that the exhumation decision therefore involved discrimination against the applicant in relation to his private and family life and his freedom of religion.

A further case complaining of the closure of the Prnjavor cemetery was introduced by the Islamic Community during the year (case no. CH/99/2177). It will be examined in the beginning of the new year.

Discrimination

Article VIII para. 2(e) of the Annex 6 Agreement provides that the Chamber shall endeavour to accept and give particular priority to, amongst others, applications founded on alleged discrimination on prohibited grounds and the Chamber has stated in several decisions that the prohibition of discrimination is a central objective of the Dayton Agreement, to which it must attach particular importance. The Chamber has particularly wide jurisdiction to deal with discrimination issues since, under Article II para. 2(b) it can deal with alleged or apparent discrimination arising in the enjoyment not only of the rights and freedoms guaranteed by the European Convention, but also those guaranteed by any of the fifteen other human rights agreements listed in the Appendix to Annex 6. Its jurisdiction in this field is thus considerably wider than that of the European Court of Human Rights since it extends to fields such as employment, access to the public service and social security, which are not covered by the European Convention.

The Chamber has found breaches of the anti-discrimination provisions of the Agreement in several significant cases during the year. In the cases of The Islamic Community in Bosnia and Herzegovina and Mahmutović (sup. cit.) it found that the applicants had been discriminated against in relation inter alia to their rights to freedom of religion as guaranteed by Article 9 of the Convention.

Two cases involved discrimination against Bosniaks in the Livno area. In Đ.M. (sup. cit.) the applicant complained that she was unable to recover possession of her house, from which she had been unlawfully evicted. She had instituted proceedings before the Municipal Court for recovery of possession of the house, but the court had not taken any action. During the proceedings the Chamber considered written and oral evidence from a number of sources including the Assistant Ombudsman of the Federation based in Livno. It delivered its decision on admissibility and merits in May 1999 and found that the applicant had been the victim of discrimination in relation to the enjoyment of her rights under various provisions of the Convention and the International Covenant on Civil and Political Rights. It found that the evidence suggested that there was a pattern of discrimination involving failure of the courts and municipal authorities to process claims for repossession of property belonging to Bosniaks or of not enforcing judgements in favour of such plaintiffs against members of the Croat majority. In Zahirović (sup. cit.) the applicant complained of discrimination in relation to his employment with the Livno bus company. He, along with other Bosniak employees, had been placed on the "waiting list" during the war. He complained that after the end of the war the company had not brought him back into active employment, but had engaged new employees of Croat origin. The Chamber found, on the basis of written and oral evidence, that the applicant had been the victim of discrimination in relation to Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights. These provisions relate, respectively, to the right to work and the right to just and favourable conditions of work. Over thirty applications by other Bosniak employees of the company in a similar situation have been submitted to the Chamber.

4. Amicable Resolutions

According to Article IX of Annex 6, the Chamber may at any stage during the proceedings facilitate an amicable resolution of the matter on the basis of respect for the rights and freedoms referred to in the Agreement. No formal settlements have been achieved under this provision during the year, although a number of cases have been struck off the Chamber's list after having been resolved to the satisfaction of the applicant.

5. Review Proceedings

Decisions on the merits delivered by the plenary Chamber are final and binding and are not subject to review by the Chamber or appeal to any other authority in Bosnia and Herzegovina. In a series of decisions adopted in February 1999, the Constitutional Court of Bosnia and Herzegovina confirmed that decisions of the Chamber are not subject to appeal to it.

Where, however, a case is decided by a panel of the Chamber, the plenary Chamber may decide, upon the motion of a party to the case or the Ombudsperson, to review the decision (Article X, para. 2, of Annex 6). Rule 64 of its Rules of Procedure provides that the Chamber shall not accept a request for review unless it considers that the case raises a serious question affecting the interpretation or application of the Agreement or a serious issue of general importance, and that the whole circumstances justify reviewing the decision. The Chamber has not yet accepted any request for review of a decision on the admissibility or merits of a case.

6. Remedies

Article XI para. 1(b), of Annex 6 provides that if the Chamber finds a violation of the Agreement, it shall address in its decision what steps shall be taken by the respondent Party to remedy the breach, "including orders to cease and desist, monetary relief (including pecuniary and non-pecuniary injuries), and provisional measures".

The normal practice of the Chamber is now to deal with the question of remedies in its decision on the merits of the case. Applicants are therefore expected to submit details of any claim they may wish to make for compensation or other remedy, at an early stage of the proceedings. The Chamber does not usually award monetary compensation unless this has been claimed by the applicant. It will, however, make whatever other orders it considers appropriate to end or otherwise remedy the violation found, whether such claims have been specifically made by the applicant or not.

Orders for monetary compensation have been made, ranging from small sums for legal and other expenses to substantial awards for pecuniary loss or non-pecuniary damage arising from the breach found.

The Chamber's power to order other remedies is a broad one. It is, in particular, substantially broader than the power of the European Court of Human Rights to award "just satisfaction" to the victim, which the Court has interpreted as empowering it to award compensation but not to make other types of orders against the State concerned. The Chamber, in the exercise of its powers, has made a wide variety of orders. A few examples may be given. In the case of The Islamic Community in Bosnia and Herzegovina the Chamber ordered the Republika Srpska to allow the applicants to erect and maintain enclosures around the sites of destroyed mosques in Banja Luka, to refrain from constructing or allowing the construction of other buildings on the sites, to refrain from destroying or removing objects remaining on the sites (or permitting such destruction or removal) and swiftly to grant the applicant, as requested by it, the necessary permits for reconstruction of seven of the mosques. The Chamber has frequently ordered the respondent Party to take the necessary steps to restore possession of property to the applicant (see, e.g., the Stanivuk and Onić cases, sup. cit.). In the Zahirović case the Chamber ordered the Federation to ensure that the applicant was offered the possibility of resuming his employment without suffering further discrimination and that his civil action was examined by an independent and impartial judiciary. In two cases the second Panel of the Chamber ordered the Federation to carry out investigations with a view to bringing the perpetrators of human rights violations to justice (see the H.R. and Momani and Odobašić cases, sup. cit.).

7. Implementation of Decisions

Under Article XI para. 6 of the Annex 6 Agreement, the Parties must "implement fully decisions of the Chamber". It is the practice of the Chamber to order the respondent Party concerned, in each of its decisions where an order is made, to report to it within a set time limit on the steps taken to implement the decision. Where no response, or an inadequate response, is received, the matter is taken up with the Office of the High Representative. It is also the practice of the Chamber to inform the Office of the High Representative, as also the OSCE and UNMIBH/IPTF, of all orders for provisional measures so that the Parties' compliance with them can be monitored.

Although the situation as regards implementation of its decisions has improved over the year, the Chamber continues to have serious concerns about this matter. As at the end of 1999, leaving aside the decisions concerning JNA apartments, the Chamber had rendered a total of fifty decisions which required action of some kind by a respondent Party. On the information available to the Chamber, there had been full compliance with twenty of these decisions, partial compliance with six, in all of which the deadline for the respondent Party to report had expired, and no compliance with twenty-four, in nine of which the reporting deadline had expired.