Case No.: CH/00/4116, CH/00/4117, CH/00/4077 and CH/00/4115
Applicant: Bisera SPAHALIC, Mustafa SPAHALIC, Avdo TOSKIC and Adil USANOVIC
Respondent Party: Bosnia and Herzegovina and Republika Srpska
Date Delivered: 7 September 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

These cases concern the attempts of the applicants, who are displaced persons of Bosniak descent, to regain possession of their property in Brcko. Pursuant to Annex 2 to the Dayton Peace Agreement, the question of control over Brcko was left open for later international arbitration. Annex 2 further stipulated that, in the meantime, and unless otherwise agreed, the area would continue to be administered as it had been at the time the Dayton Peace Agreement was signed. Each applicant has been trying to regain property that is situated in the north-eastern part of the Brcko District that was under the control of the Republika Srpska at the time that the Dayton Peace Agreement was signed.

All of the applicants initiated administrative proceedings before the Republika Srpska authorities to regain possession of their homes in 1999. In the case of three applicants, no response was received from the Republika Srpska authorities; one of these applicants was reinstated into his apartment by the Brcko District in 2000. The remaining applicant was reinstated into his apartment by the Ministry for Refugees and Displaced Persons of the Republika Srpska in 2000.

On 5 March 1999 the Arbitral Tribunal, established under the Dayton Peace Agreement, issued its final award, establishing that Brcko shall be a "self-governing neutral district" under the sovereignty of Bosnia and Herzegovina. The Statute of Brcko, the instrument implementing the Arbitral Award, was adopted on 8 March 2000. On 19 September 2000 a Memorandum of Understanding setting out the responsibilities of the new Department of Urbanism of the Brcko District was signed between the Entities. The Brcko District Judiciary was established on 1 April 2001.

Admissibility

The Chamber declared the applications admissible insofar as they were directed against Bosnia and Herzegovina in respect of allegations arising under Article 8 and Article 1 of Protocol No. 1 after the signing of the Memorandum of Understanding on 19 September 2000 and concerning allegations arising under Articles 6 and 13 after the creation of the District of Brcko Judiciary on 1 April 2001. The Chamber rejected the applications as inadmissible insofar as they were directed against Bosnia and Herzegovina in relation to Article 8 and Article 1 of Protocol No. 1 prior to 19 September 2000 and in relation to Articles 6 and 13 prior to 1 April 2001.

The Chamber declared the applications admissible insofar as they were directed against the Republika Srpska in respect of allegations arising under Article 8 and Article 1 of Protocol No. 1 prior to the signing of the Memorandum of Understanding on 19 September 2000, and concerning allegations arising under Articles 6 and 13. The Chamber rejected the applications as being inadmissible insofar as they were directed against the Republika Srpska in relation to Article 8 and Article 1 of Protocol No. 1 after 19 September 2000.

Merits

Article 8 of the Convention

With respect to the Republika Srpska, the Chamber found that it was legally and practically responsible for handling housing issues until 19 September 2000. The Chamber noted that all of the applicants had to leave their respective homes due to the war, that all of the properties were then occupied by third persons, and that the applicants' attempts to repossess their homes through administrative proceedings were, apart from the proceeding brought by one applicant, unsuccessful. Thus the Chamber found that the applicants were unable to regain possession of their homes due to the failure of the authorities of the Republika Srpska to deal effectively with their applications. Consequently, there was a violation by the Republika Srpska of the right of all of the applicants to respect for their homes as guaranteed by Article 8 up until 19 September 2000 when the responsibility for housing matters was transferred from the Republika Srpska to the District of Brcko.

With respect to Bosnia and Herzegovina, given that the District of Brcko is under the direct sovereignty of Bosnia and Herzegovina, it follows that Bosnia and Herzegovina was the respondent Party before the Chamber concerning alleged violations of human rights in the District of Brcko. As for the applicant who regained possession of his apartment by a decision of the Ministry for Refugees and Displaced Persons of the Republika Sprska in 2000, the interference with his right to home ceased prior to the point in time when Bosnia and Herzegovina assumed direct responsibility for the protection of human rights of individuals in the District of Brcko, and thus the Chamber found no interference with his right to home that could be attributed to Bosnia and Herzegovina. As for the applicant who regained possession of his home by virtue of a decision taken by the Brcko District, the Chamber found no interference with his right to home that could be attributed to Bosnia and Herzegovina. As for the remaining applicants, the Chamber found that Bosnia and Herzegovina failed to resolve their repossession claims within the time limits prescribed by law, and thus that there had been a violation by Bosnia and Herzegovina of their right to respect for home as guaranteed by Article 8 since 19 September 2000.

Article 1 of Protocol No. 1 to the Convention

As for the Republika Srpska, the Chamber found that, given its examination of the case under Article 8, the Republika Srpska had violated the rights of the applicants to peaceful enjoyment of their possessions for as long as it was competent to handle these matters, namely until 19 September 2000.

As for Bosnia and Herzegovina, the Chamber found that the failure of the authorities to act in accordance with the laws in force at the time of the alleged violations in the cases of the two applicants who were unable to repossess their homes was an unjustifiable interference with the applicants' right to peaceful enjoyment of their possessions in relation to the period after 19 September 2000. The Chamber found no interference in the cases of the applicants who were able to repossess their homes that could be attributed to Bosnia and Herzegovina.

Article 6 of the Convention

The Chamber noted that from 5 March 1999 until the establishment of the Brcko District Judiciary in April 2001, it was impossible for the applicants to have the merits of their civil actions determined by a tribunal within the meaning of Article 6. In addition, the ambiguity surrounding the competencies of the Republika Srpska courts deprived the applicants of a coherent system that would effectively protect their rights. Thus there was an ongoing violation of the applicants' rights to access to court by the Republika Srpska. Having concluded that the Republika Srpska courts were still responsible for the ongoing proceedings, the Chamber found that Bosnia and Herzegovina could not be held responsible for any violation in respect of Article 6.

Article 13 of the Convention

In view of its decision concerning Article 6, the Chamber considered that it did not have to examine the cases under Article 13, which guarantees the right to an effective remedy before a national authority.

Remedies

The Chamber ordered Bosnia and Herzegovina to enable the two applicants who had not already done so to regain possession of their properties without further delay, and to pay them a sum as compensation for loss of use of their homes. The Chamber ordered the Republika Srpska to pay each of the four applicants a sum as compensation for moral damages and for loss of the use of their homes.

Decision adopted 4 September 2001
Decision delivered 7 September 2001