in the case of

The ISLAMIC COMMUNITY IN BOSNIA AND HERZEGOVINA v. THE REPUBLIKA SRPSKA (“Prnjavor graveyard case”) 
(Case No. CH/99/2177)

FACTUAL BACKGROUND

This case concerns the prohibition by the municipal authorities of Prnjavor, Republika Srpska, to carry out burials at the Muslim Town Cemetery in Prnjavor. In 1994 the Municipality Prnjavor adopted an ordinance closing the Muslim cemetery in the centre of town. Burials were subsequently carried out in the Muslim graveyards of the villages surrounding Prnjavor. In the summer of 1998, the Islamic Community in Prnjavor buried a deceased member in the Muslim Town Cemetery. The deceased’s husband was ordered to exhume his wife and to re-bury her in a non-existing “new town cemetery”. These events were the subject matter of the case no. CH/98/892 Mahmutoviæ v. the Republika Srpska, in which the Chamber delivered its decision finding discrimination against the applicant on 8 October 1999. In November 1999 the municipal authorities prevented a burial at the Muslim cemetery. In December 1999 the Chamber issued a provisional order prohibiting any further interference with burials at the Muslim Town Cemetery in Prnjavor, which did not prevent the authorities from again interfering with a further burial in January 2000. This burial was finally carried out due to the intervention of IPTF, which ensured the compliance with the provisional measure ordered by the Chamber.

FINDINGS OF THE CHAMBER

Admissibility

As to the admissibility of the application, the Chamber ruled that the Islamic Community had standing to present the application both on behalf of its members in Prnjavor and on its own behalf. The Chamber also concluded that it was competent to examine the application insofar as it concerned the continued enforcement of the ordinance closing the cemetery after the entry into force of the Dayton Agreement, and that there were no remedies currently available to the applicant that it could be expected to exhaust.

Merits

Article 9 of the European Convention on Human Rights
As to the merits, the Chamber noted that the Muslim Town Cemetery in Prnjavor had been closed, while the nearby Orthodox and Catholic cemeteries were not affected. The Chamber also noted that there was no shortage of space for burials in the Muslim cemetery and that no reasons for the closure had been provided. It therefore concluded that “the applicant’s suggestion, that the purpose of the continued enforcement of the 1994 ordinance is to discourage the return of Bosniak refugees to Prnjavor by preventing them from freely pursuing their religious traditions, has not been seriously challenged and is the only plausible explanation” of the decision to close the cemetery. The Chamber found that the continued enforcement of the ordinance closing the cemetery constituted discrimination against the Islamic Community and its members in Prnjavor in the enjoyment of their right to manifest religious beliefs in practice and observance, enshrined in Article 9 of the Convention.

REMEDIES

As a remedy, the Chamber ordered the respondent Party to revoke within one month the ordinance closing the cemetery and to desist from any further steps to prevent burials at the Muslim Town Cemetery in Prnjavor.

Messrs. Popovic and Pajic attached a dissenting opinion to the decision.

Decision delivered 11 February 2000