in the case of

THE ISLAMIC COMMUNITY IN BOSNIA AND HERZEGOVINA v. THE REPUBLIKA SRPSKA (Case No. CH/98/1062)

FACTUAL BACKGROUND

In 1992 the Zamlaz mosque, the Rijecanska mosque and the Diviè mosque in Zvornik, Republika Srpska, were destroyed. After the entry into force of the Dayton Agreement the graveyard which had remained on the Zamlaz site was removed and a multi-storey building was built on this site. The Rijeèanska site is illegally used as a market place and as a car park. On the Diviè site a Serb Orthodox church was erected in 1998.

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 rights guaranteed by the aforementioned provisions.

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 Zamlaz site the Chamber held that the removal of the graveyard and the construction of the multi-storey building substantially interfered with the applicant’s possessions. Regarding the Diviè site, the Chamber considered that the construction of the Serb Orthodox church on this site substantially interfered with the enjoyment of the applicant’s property right as well. Both 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. Moreover, the Chamber stated that the failure of the respondent Party to prevent the present inhabitants of Zvornik from using the Rijeèanska site partly as a car park and partly as a market place, undoubtedly makes it impossible for the applicant to use it for the reconstruction of its mosque. 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. of the Convention.

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

REMEDIES

The Chamber ordered the Republika Srpska to allocate, within 6 months, a suitable and centrally located building site in the town of Zvornik to permit, upon request of the Islamic Community, the construction of a mosque to replace the former Zamlaz mosque. In relation to the Rijeèanska site the Chamber ordered the respondent Party to grant, within 3 months of the receipt of a request to that effect from the Islamic Community, the necessary permit for reconstruction of the Rijeèanska mosque at the location at which it previously existed, to remove from this site, within 1 month, all market stands, to put an end to its utilisation as a car park and not to permit the use of the site for any purpose affecting or interfering with the rights of the Islamic Community. Regarding the Diviæ site the respondent Party was ordered to allocate, within 6 months, a suitable building site in the vicinity of the former Diviæ mosque to permit, upon request of the Islamic Community, the construction of a mosque to replace the former Diviæ mosque. The respondent Party was also ordered to pay the applicant KM 10,000 as compensation for moral damage suffered.

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

Decision delivered 9 November 2000