in the case of

THE ISLAMIC COMMUNITY IN BOSNIA AND HERZEGOVINA v. THE REPUBLIKA SRPSKA (Case No. CH/99/2656)

FACTUAL BACKGROUND

In 1993, the Atik mosque, the Dašnice mosque, the Salihbegoviæ mosque and the Krpiæ mosque in Bijeljina and the Atik mosque in Janja were destroyed. In June 1999 about 1000 sq.m. of the Atik site in Bijeljina were fenced in. The old Gasulhana still existing on this site was removed and the construction of a bank building was started. The construction works were not stopped although an order for provisional measures was issued by the Chamber on 10 July 1999. Moreover, some moveable kiosks and tables are standing on another part of this site. On the site where the Dašnice mosque once stood a private company called “Express Promm” has built a business facility on the basis of an agreement with the Bijeljina Municipality. The Salihbegoviæ site, which had been used as a flea market after the destruction of the mosque, is now used as a car park. The Krpiæ site has been turned into a parking area, containing also eight smaller business facilities. The Atik site in Janja is nowadays used as a flea market. The applicant has thereby been prevented from using these sites.
The applicant complains that the respondent Party violates its rights under Article 9 of the European Convention on Human Rights (freedom of religion) and Article 1 of Protocol No. 1 to the Convention (right to property) by preventing it from using the sites and reconstructing the mosques. In particular, the application raises the question whether the applicant and its members have been discriminated against in the enjoyment of the above rights.

FINDINGS OF THE CHAMBER

Article 9 of the European Convention on Human Rights
The Chamber held that the above utilisation of the sites in question prevents the applicant from using them for religious activities. It found no justification for these interferences with the applicant’s right to freedom of religion in Article 9 of the Convention and, therefore, stated a violation of this right.

Article 1 of Protocol No. 1 to the Convention
In relation to the Atik site in Bijeljina, the Chamber found that the removal of the Gasulhana from this site as well as afterwards the construction of the bank building substantially interfered with the enjoyment of the applicant’s possessions. The same applies to the construction of the business building on the Dašnice site. According to the Chamber, these actions constituted an “extensive and definitive occupation of the land in question to which the applicant has a priority right to use”. As the respondent Party did not formally divest the applicant of its rights the Chamber considered them to have involved a de facto deprivation of the applicant’s possessions. In relation to the Krpiæ site, the Salihbegoviæ site and the Atik site in Janja, the Chamber stated that the refusal of the respondent Party to prevent the citizens of Bijeljina from illegally using these sites undoubtedly makes it impossible for the applicant to use them for the reconstruction of its mosques. It “constitutes an interference with the general principle of peaceful enjoyment of possessions”. The Chamber found that all the above interferences could not be considered to be in accordance with the public interest as they have been based on discriminatory grounds and, therefore, found a violation of the applicant’s right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1. to the Convention.

Discrimination
The Chamber also found discrimination in the enjoyment of the aforementioned provisions.

REMEDIES

The Chamber ordered the Republika Srpska to grant, within three months, permits for reconstruction of the Atik mosque, the Dašnice mosque, the Salihbegoviæ mosque and the Krpiæ mosque at the locations in Bijeljina at which they previously existed. Moreover, the Chamber ordered the respondent Party to grant, within three months of the receipt of a request to that effect from the Islamic Community, a permit for reconstruction of the Atik mosque in Janja at the location at which it previously existed. Furthermore, the respondent Party was ordered to pay to the applicant KM 10,000 as compensation for moral damage suffered in relation to all mosque sites and KM 15,000 as compensation for the part of the Atik site in Bijeljina which is covered by the new bank building and which can therefore not be used for the reconstruction of the mosque and for the destruction of the Gasulhana.

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

Decision delivered 6 December 2000