Case No.: CH/98/1309, CH/98/1312, CH/98/1314, CH/98/1318, CH/98/1319, CH/98/1321, CH/98/1322, CH/98/1323 and CH/98/1326
Applicant: Almasa KAJTAZ, Dobrila BIJEDIC, Azira SIVCEVIC, Altijana MESIC, Rasema BEGIC, Elvedin DEVIC, Radenka CVIJETIC, Jasna SLJIVO, and Dzenana SEHOVIC
Respondent Party: Bosnia and Herzegovina
Date Delivered: 7 September 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicants, who are of various ethnic origins, were employees in the Ministry of Justice and General Administration of the Republic of Bosnia and Herzegovina. In December 1997, a new Ministry for Civil Affairs and Communication (the "Ministry") was established and the applicants were not officially assigned to any post within this new Ministry. The applicants allege that after the establishment of the Ministry, they continued working within the new Ministry, in the same positions until various dates in the beginning of 1999. On 8 September 1998, they learned that they had been relegated to the status of "unassigned" workers and that as a result they received lower salaries than other employees and stopped receiving benefits commencing on or around June 1998. They stopped receiving any compensation on 31 December 1998. They ceased working sometime between January and March 1999, respectively. They had never received procedural decisions terminating their working relations or relegating them to the status of unassigned workers. In November 1998 all applicants but one initiated civil proceedings before the Municipal Court I in Sarajevo requesting compensation, but no decisions had yet been issued.

Admissibility

While all but one of the applicants initiated lawsuits before the Municipal Court I in Sarajevo, the respondent Party did not believe the Municipal Court had jurisdiction and did not defend itself in the lawsuits. Thus the respondent Party was barred from arguing that this remedy was "effective." In addition, since the applicants did not have the necessary procedural decisions upon which to challenge the legality of the decision effectively terminating their employment, there was no State Court, and there was no State attorney appointed to represent the State before the Federation courts, there was no effective domestic remedy for the alleged violations of which the applicants complained. Thus the applicants could not be required to exhaust any further domestic remedies, and the Chamber declared the applications admissible in their entirety.

Merits

Article 6 of the Convention

The Chamber concluded that whether or not the Municipal Court declared itself competent to hear the applicants' cases, the overall legal system for adjudicating these claims was not sufficiently coherent or clear. The applicants did not have a court in which to actually have their claims heard. The opportunity to file a claim but not have the claim determined does not satisfy the requirements of Article 6(1). Thus Bosnia and Herzegovina violated the applicants' practical, effective right of access to court.

Article 13 of the Convention

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

Discrimination

The Chamber considered the applicants' allegation of discrimination in relation to Article 25(c) of the International Covenant on Civil and Political Rights, which guarantees access to "public service" without discrimination. The Chamber found that there was differential treatment of all of the applicants based on ethnic origin with the goal of promoting public confidence in the administration of the government of Bosnia and Herzegovina in the aftermath of the war through the "equal representation" principle.

While the differential treatment arising from the attempt to obtain fair representation may have been in pursuit of a legitimate aim, in order for this aim to have been achieved in a legitimate manner the process must have been transparent, fair and objective. No clear reasons were given as to why these particular applicants were not employed. Further evidence of the vague and inadequate selection process was found with respect to the applicants of mixed origin or mixed marriages, or the Serb applicant living in the Federation. As the Chamber could not find that the means employed were proportional to the aim pursued, it held that the applicants were discriminated against on the ground of national and ethnic origin in their enjoyment of the right to access to public service, and thus that Bosnia and Herzegovina violated its obligations under the Dayton Peace Agreement.

Remedies

The Chamber ordered Bosnia and Herzegovina to pay to the applicants various sums as compensation for lost income, benefits and moral damages.

Decision adopted 4 September 2001
Decision delivered 7 September 2001

DECISION ON REQUEST FOR REVIEW

As of 31 December 2001, the decision on request for review had not been decided.