VIII. CASES BEFORE THE CHAMBER IN 2000

This section of the Report is intended to provide a broad picture of the Chamber's case-work during the year, high-lighting 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 decisions (January-June and July-December 2000). A list of the 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 upon request.

It will be seen that the number of cases pending before the Chamber and the number of decisions rendered have continued to expand. A high proportion of the cases pending and decided continues to relate to housing matters. Although new legislation is in force in both Entities providing for such matters as the cessation of the laws on abandoned property and the enforcement of decisions of the Annex 7 Commission, the failure of the authorities to implement the legislation gives rise to frequent complaint.

1. Provisional Measures

Article X, para.1, of Annex 6 empowers the Chamber to order provisional measures. This can be done at any stage of the proceedings. Generally speaking the Chamber will only order a provisional measure where there is a prima facie indication that a protected right may have been infringed, or is threatened with infringement, and it appears likely that the applicant will suffer serious or irreparable harm if an order is not made. Such orders are most frequently used to preserve the status quo pending the Chamber's determination of a case. Provisional orders made by the Chamber, in contrast to provisional measures indicated by the European Court of Human Rights, are legally binding.

Under Article XI, para. 1(b) of Annex 6 the Chamber also has specific power to include an order for provisional measures in its final decision on the merits of a case. This power might be used to regulate the position of the parties before the decision becomes final and binding, or pending the full implementation of the decision.

As in previous years requests for provisional measures have been made most frequently in housing cases concerning threatened evictions. Changes to the housing laws, including the repeal of legislation on abandoned property, have resulted in fewer such requests being granted. In particular the Chamber has refused to make provisional orders in many cases where it appeared that the applicant was being lawfully evicted to allow the pre-war occupant of the property to return to it.

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 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.

The relevant provisions of Annex 6 are modeled on the provisions of the European Convention concerning the admissibility of applications to the European Court of Human Rights. They are not, however, identical and the Chamber has held that it has some discretion in applying the rule as to exhaustion of remedies and the six months rule in particular. It has also held that the criteria expressly referred to in Article VIII are not the only ones which it may apply, and that it enjoys a certain discretion not to accept cases on other grounds (case no. CH/00/4441 Sijaric v. the Federation of Bosnia and Herzegovina). It decided not to accept the case referred to on the ground that, prior to the introduction of the application to the Chamber, the matter to which it related had been brought before the Constitutional Court of Bosnia and Herzegovina, which had overlapping jurisdiction.

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 application before deciding on the further procedure. It may reject an application as inadmissible at that stage, without communicating the case to the respondent Party. If, however, the 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 the admissibility of the case, failing which it may be precluded from raising such objections at a later stage.

During the year the Chamber has simplified its procedures for dealing with the initial examination of admissibility. It now issues shorter decisions in cases which are clearly inadmissible. Over 200 inadmissibility decisions were issued during the year.

3. Striking Out etc.

Under Article VIII, para. 3, of Annex 6 the Chamber may suspend consideration of, reject or strike out, an application on the ground that the applicant does not intend to pursue the case, that the matter has been resolved, or that for any other reason continued examination of the application is no longer justified. It can only take such a decision if satisfied that the result is consistent with the objective of respect for human rights.

The Chamber has made increasing use of this power, having taken over 100 strike out decisions during the year. Many such decisions have been based on the applicant's withdrawal of the case or on a failure on the part of the applicant to respond to communications from the Chamber, leading to the conclusion that the applicant does not intend to pursue the case. In some cases the situation has arisen where the primary aim of an applicant, such as the recovery of possession of property, has been achieved before the Chamber has dealt with the merits of the case, but the applicant nonetheless wishes to continue with the case to obtain compensation for the violation of his or her rights which has allegedly occurred in the past. In such circumstances the Chamber may decide that further consideration of the case is not justified (see e.g. case no. CH/98/1789 Gadža v. Republika Srpska, decision of 8 February 2000 and decision on request for review of 6 November 2000).

4. Questions Arising on the Merits

a) Property and Housing Matters

Decisions were issued during the year in two groups of cases concerning property issues of general importance in the Federation. The first (cases nos. CH/97/48 etc Poropat and others) related to frozen foreign currency bank accounts and the second (cases nos. CH/98/706 etc, Šecerbegovic and others) to the pensions payable to former members of the Yugoslav National Army.

In the Poropat case the applicants complained that they had been unable to withdraw foreign currency which they had deposited before the war with banks now situated in the Federation. The applicants had started proceedings in the courts to recover the amounts of their deposits but none of these proceedings had been concluded. The Federation had passed legislation which provided for claims based on such accounts to be resolved by the issue of certificates which could be used for the purchase of assets in the process of privatisation of socially and publicly owned property. The Chamber found that the applicants' right to the peaceful enjoyment of their possessions had been violated by the Federation. It held that the measures taken had pursued a legitimate aim in the general interest, given the economic situation in the country and the likelihood that the banks would go bankrupt if they had to meet all the foreign currency claims against them. However in view of certain features of the privatisation scheme, a fair balance had not been struck between the public interest and the interests of the applicants. In particular: the certificates could only be used during a two year period, which could pose difficulties in view of the slow progress of the privatisation process; the certificates were not treated as equivalent to cash, and furthermore holders of small numbers of certificates might have difficulty finding suitable items to purchase. It therefore ordered the Federation to amend the privatisation programme so as to achieve the required fair balance.

The Chamber also found that the State of Bosnia and Herzegovina had breached the applicants' rights under Article 1 of Protocol No. 1 in the Poropat case, by failing in its positive obligation to take adequate action to secure the applicants' rights. It did not make any order for a remedy against the State, however, other than for the payment of legal expenses.

In the Šecerbegovic case the applicants were retired officers of the JNA resident in the Federation. Until the outbreak of the war, they had received pensions from a military pension institution in Belgrade. Payment of the pensions ceased after war broke out and subsequently legislation was passed by the Republic of Bosnia and Herzegovina and by the Federation, under which the applicants became entitled to a pension, payable by a pension fund of the Republic and subsequently the Federation, amounting to half their former JNA pension. The applicants complained that they had been deprived of half their pensions and invoked Article 1 of Protocol No. 1 to the Convention. The Chamber held that there had been no breach of this provision. It found that the applicants had had no claims against the Federation, which could be regarded as "possessions" protected by Article 1 of Protocol No. 1 apart from those conferred by the legislation granting the new pensions.

The case-law laid down in these two groups of cases is likely to be applicable in a substantial number of other cases.

Another case arose from the refusal of a bank in the Republika Srpska to pay out sums deposited in a foreign currency account. The applicant obtained a court decision ordering the bank to pay her the sums in question. The decision became final but the applicant was unable to enforce it, allegedly because the Bureau for Payment Transactions refused to execute the payment. The Chamber held that the failure of the authorities to enforce the judgment involved a breach of the applicant's rights under Article 1 of Protocol No. 1 (case no. CH/99/1859, Jelicic v. Republika Srpska).

As in previous years a substantial number of cases concerning housing matters has been considered. Most of these cases have concerned the inability of applicants to return to properties which they occupied before the war, and have raised issues under Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention, guaranteeing the right to respect for the "home". Many have arisen from the failure of the domestic authorities to deal with claims for return under the legislation applicable in both entities providing for the cessation of legislation on abandoned property. Others have involved failure to enforce decisions of the Commission for Real Property Claims of Displaced Persons and Refugees established under Annex 7 of the Dayton Agreement in accordance with the domestic law on the matter. In numerous cases where the relevant authorities have failed to comply with time limits and other requirements of domestic law, the Chamber has found breaches of the above-mentioned Convention provisions.

b) Arrest and Detention

The Chamber has dealt with a number of cases concerning arrest and detention, including alleged ill-treatment on arrest and in detention (see e.g. decisions on admissibility and merits in case no. CH/98/1374 Pržulj v. the Federation of Bosnia & Herzegovina; case no. CH/98/896 Cvokic v. the Federation of Bosnia & Herzegovina; cases nos CH/98/1027 and CH/98/1842 RG & Matkovic v. the Federation of Bosnia & Herzegovina).

These cases have raised issues concerning the lawfulness of detention (Article 5 of the Convention) and the treatment of detainees (Article 3 of the Convention) which are largely similar to those considered in previous case-law of the Chamber. In the RG case the Chamber found that the applicant had been shot and arrested by members of the BH army and then beaten, before being taken to hospital with serious injuries. It found that the applicant's treatment amounted to torture, in breach of Article 3 of the Convention.

c) Civil and Criminal Proceedings

The Chamber has dealt with numerous cases concerning possible breaches of Article 6 of the Convention, which guarantees the right to a fair hearing in civil and criminal cases. Issues which have arisen include the independence and impartiality of the courts, access to court, the length of proceedings, the fairness of the proceedings and the non-enforcement of court decisions.

As examples of cases decided in relation to the criminal sphere, the Chamber decided in one case that the applicant's rights under Article 6 had been violated since his appeal in a criminal case had been heard in his absence (case no. CH/98/934 Garaplija v. the Federation of Bosnia & Herzegovina). In two cases it considered whether Article 6 was applicable to proceedings in which the applicants sought to have criminal proceedings against them reopened after their convictions had become final (case no. CH/98/638 Damjanovic v. the Federation of Bosnia & Herzegovina; case no. CH/98/548 Ivanovic v. the Federation of Bosnia & Herzegovina). It held in both cases that Article 6 was applicable to the proceedings in question. In the Damjanovic case it held that there had been a breach of the applicant's right to a fair hearing in circumstances where it considered that the reasoning of the court in relation to the evidence was "grossly inadequate and devoid of the appearance of fairness". It found no breach of Article 6 in the Ivanovic case. In both cases it emphasized that it was not its function to substitute its assessment of the evidence for that of the domestic courts, but only to decide whether the proceedings had been fair. In the case of V.C. v. the Federation of Bosnia & Herzegovina (case no. CH/98/1366) the Chamber found a breach of Article 6 in circumstances where the applicant had been convicted of charges for which the ICTY prosecutor considered, in an opinion obtained in application of the "Rules of the Road", that there was insufficient evidence by international standards to justify proceedings. It also found that restrictions on the applicant's access to legal advice at an early stage of the proceedings had infringed Article 6.

In the civil sphere the Chamber found a breach of Article 6 arising from the failure of the authorities to enforce a judgement for the payment of money deposited in a bank account. The Chamber held that this failure deprived Article 6 of all useful effect (case no. CH/99/1859 Jelicic v. Republika Srpska). In other cases it has held that the impossibility of having a claim relating to property determined by a court breached the right of access to court guaranteed by Article 6 (see e.g. case no. CH/98/697 Džonlic v. Republika Srpska). In numerous civil cases the Chamber has found breaches of Article 6 on the ground that proceedings were not completed within a "reasonable time".

d) Freedom of Religion

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

The first case (case no. CH/99/2177 Islamic Community in BiH v. Republika Srpska) arose from the continued closure of the Muslim cemetery in Prnjavor under an ordinance made by the municipality in 1994. The Chamber held that the continued enforcement of the ordinance, after the entry into force of the Dayton Agreement, was a discriminatory interference with the rights of the applicant and the Muslim population in Prnjavor to manifest their religious beliefs in practice and observance. It ordered the respondent Party to revoke the ordinance and to desist from any steps to enforce it, such as prohibiting burials or ordering the exhumation of persons buried there.

The two remaining cases (case no. CH/98/1062 Islamic Community in BiH v. Republika Srpska and case no. CH/99/2656 Islamic Community in BiH v. Republika Srpska) related to alleged interferences with the applicants' ability to use the sites of destroyed mosques in Zvornik, Bijeljina and Janja, and to reconstruct the mosques. In these cases the second Panel of the Chamber found violations of the applicant's rights to freedom of religion and peaceful enjoyment of its possessions and also found that the applicant had been discriminated against in the enjoyment of these rights.

e) Discrimination

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. It has particularly wide jurisdiction to deal with discrimination issues since, under Article II, para. 2(b), of Annex 6 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. The Chamber's jurisdiction is thus extended into important areas, such as employment, access to the public service and social security, which are not within the scope of the European Convention.

The Chamber has considered discrimination issues in several important cases during the year. In cases brought by the Islamic Community against the Republika Srpska in relation to a cemetery closure and use of the sites of destroyed mosques, the Chamber found that the applicant had been discriminated against on religious grounds (see above). It has found that applicants were discriminated against on the grounds of their ethnic origin in the fields of personal liberty (case no. CH/98/896 Cvokic v. the Federation of Bosnia & Herzegovina), housing (case no. CH/98/698 Jusufovic v. Republika Srpska) and employment (case no. CH/97/50 Rajic v. the Federation of Bosnia & Herzegovina).

In the cases concerning JNA pensions, on the other hand, the Chamber found that the applicants had not been discriminated against in comparison with civilian pensioners since they were not in comparable positions. The Chamber also held that the more favourable treatment of veterans of the Federation's own army was, in all the circumstances, justifiable within the margin of appreciation afforded to the respondent Party. It therefore rejected the applicants' complaints of discrimination (Šecerbegovic et al. v. the Federation of Bosnia & Herzegovina sup. cit.).

5. Amicable Resolutions

According to Article IX of Annex 6, the Chamber may at any stage of 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 increasing numbers of cases, particularly in the housing sphere, have been struck off the Chamber's list on the ground that the matter has been resolved.

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". This power to order remedies is a broad one and is, in particular, substantially broader than the power of the European Court of Human Rights to order "just satisfaction", which the Court has interpreted as empowering it to award monetary compensation only.

The Chamber has made many awards of compensation for pecuniary and non-pecuniary damage, including legal expenses. In housing and other property cases it has frequently ordered that applicants be reinstated in their property within a defined time-limit. Other forms of order made during the year include, by way of example, the following: amendment of the Federation's privatisation programme so as to achieve a fair balance between the interests of the applicants and the general interest in the frozen bank accounts case (Poropat and others, sup. cit.); that the respondent Party take all necessary steps to ensure that proceedings pending before its courts are determined within a reasonable time (e.g. case no. CH/98/367 Jankovic v. Republika Srpska); that all necessary steps be taken to grant the applicant a retrial in criminal proceedings (case no. CH/98/638 Damjanovic v. the Federation of Bosnia and Herzegovina); that a municipal ordinance for the closure of a Muslim cemetery be revoked (case no. CH/99/2177 Islamic Community in BiH v. Republika Srpska); that an investigation be carried out into the conduct of police officers allegedly involved in the arrest and ill-treatment of an applicant, with a view to the initiation of criminal proceedings (case no. CH/98/1374 Pržulj v. the Federation of Bosnia and Herzegovina).

7. Review Proceedings

Where a case is decided by a panel, 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.

By the end of the year 2000, the Chamber had decided on a total of 35 requests for review, 3 of which it had accepted. One case in which it granted a request for review during the year was V.C. v. the Federation of Bosnia & Herzegovina (case no. CH/98/1366), concerning the applicant's detention and trial on war-crimes charges. The second Panel of the Chamber had held that there had been violations of Articles 5 and 6 of the Convention arising inter alia from a failure to comply with the "Rules of the Road" requiring the consent of the Hague Tribunal to the proceedings. The plenary Chamber held that serious questions arose in relation to the application of the "Rules of the Road", including in particular the question when they had come into effect. Since similar questions arose in a number of other cases pending before the Chamber it also held that the whole circumstances justified reviewing the panel's decision. Thereafter, in its decision on the merits of the review the plenary Chamber upheld the decision of the Panel.

8. Implementation of Decisions

Under Article XI, para. 6, of Annex 6, the Parties must "implement fully decisions of the Chamber". It is the practice of the Chamber to order the respondent Party, in any case where an order is made, to report to it within a set time limit on the steps taken to implement the decision. If an adequate response is not 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.

The situation as regards implementation of the Chamber's decisions, whilst continuing to improve, still gives rise to concern. Leaving aside cases concerning contractual rights over JNA apartments, the Chamber had, by the end of the year, taken a total of 69 decisions in which action of some kind was required by the respondent Party. The respondent Parties concerned had complied fully with 43 of these decisions. The remaining 26 decisions had either not been complied with at all or had been partially complied with. The deadline for reporting to the Chamber or complying with the Chamber's decision had expired in 20 of these cases. Some of the decisions in question related to more than one individual case. In the cases of Pletilic et al. v. Republika Srpska (cases nos. CH/98/659 etc), for example, 18 out of 20 applicants had not regained possession of their properties in accordance with the Chamber's order and in Bašic et al v. Republika Srpska (cases nos. CH/98/752 etc) 12 out of 15 applicants were in the same position.

Among the cases where the Chamber's orders had not been complied with were the case of Matanovic v. Republika Srpska (case no. CH/96/1), where the Chamber ordered an investigation into the whereabouts or fate of the applicant, and Islamic Community in BiH v. Republika Srpska (case no. CH/96/29), where the Chamber ordered the issue of permits for the reconstruction of mosques in Banja Luka.

As to cases concerning JNA apartments, the Chamber issued decisions concerning 117 cases in which it found violations of the applicants' rights arising from the nullification of their contracts for the purchase of their apartments. As at the end of the year the respondent Party had issued orders for the registration of the applicants as owners of the apartments in 97 of these cases. All compensation awarded in these cases had been paid by the end of the year.