Case No.: CH/99/1961
Applicant: Azra ZORNIC
Respondent Party: Bosnia and Herzegovina, Federation of Bosnia and Herzegovina, and Republika Srpska
Date Delivered: 8 February 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The case concerns the attempts of the applicant, a citizen of Bosnia and Herzegovina, to regain possession of an apartment located in Dobrinja, Sarajevo. She holds the occupancy right over it and occupied it together with her family until 1992, when she was forced to vacate it due to the hostilities. The applicant maintained that the area in which the apartment is located is, de jure, according to the Dayton Peace Agreement, part of the Federation. However, it is, de facto, under the control of the Republika Srpska. The area in question, along the Inter-Entity Boundary Line ("IEBL"), was disputed between the Federation and the Republika Srpska. The applicant claimed that this situation resulted in her being unable to regain possession of her apartment. She initiated administrative proceedings before the relevant authorities of the Federation and the Republika Srpska. The applicant currently occupies a different apartment in the Federation which is the subject of proceedings by the pre-war occupant, who holds the occupancy right over it, to regain possession of it.

Admissibility

First, noting that the State did not object to the admissibility of the application against it on any ground, the Chamber declared the application admissible as against the State. Second, the Chamber found that, regardless of whether the area where the applicant's apartment is located is in fact on the Republika Srpska side of the IEBL, the responsibility of the Republika Srpska was engaged by virtue of its effective occupation of that area. Finding that the remedies available to the applicant in the Republika Srpska could not be considered to have been effective in the present case, the Chamber declared the application admissible as against the Republika Srpska. Third, noting that the Federation requested the Chamber to declare the case admissible as against all three respondent Parties, the Chamber declare the case admissible as against the Federation.

Merits

Article 8 of the Convention

First, noting that the limited and clearly defined scope of responsibilities of the State as currently set out in its Constitution does not include the matters raised in the application, the Chamber considered that it should not hold the State responsible for any violation of the rights of the applicant under Article 8.

Second, the Chamber found that the applicant was unable to regain possession of her apartment due to the failure of the authorities of the Republika Srpska to deal effectively with her application before the authorities, and thus that the Republika Srpska was responsible for an interference with the right of the applicant to respect for her home. Given that the Law on the Cessation of the Application of the Law on the Use of Abandoned Property requires that the relevant authority issue a decision on an applicant's request within 30 days of its receipt, and that the authorities issued a decision on the applicant's request more than one year later, the actions of the authorities of the RS were not "in accordance with the law." Thus there was a violation by the Republika Srpska of the right of the applicant to respect for her home as guaranteed by Article 8.

Third, the Chamber noted that the obligation of the Federation to secure the applicant's right to respect for her home requires it to not only put in place a legislative regime enabling persons who lost possession of their homes to regain possession of them, but also to ensure that it acts in accordance with that regime in individual cases. The Chamber further noted that the Federation had not done so, as the applicant's proceedings were still pending, despite the legal time-limits for the issuance of a decision having elapsed. Thus the Chamber considered that the Federation had failed to comply with the positive obligation imposed upon it by Article 8 and that it had violated the rights of the applicant under this provision.

Article 1 of Protocol No. 1 to the Convention

For the same reasons as given in the context of its examination of the case under Article 8, the Chamber found that the State could not be held responsible for any violation of the rights of the applicant under Article 1 of Protocol No. 1, but that both the Federation and Republika Srpska had violated the right of the applicant to peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1.

Remedies

The Chamber ordered the Republika Srpska swiftly to take all necessary steps to enable the applicant to regain possession of the apartment and to pay to the applicant KM 2,000 by way of compensation for moral damage suffered. The Chamber ordered the Federation to pay the applicant KM 1,000 by way of compensation for moral damage.

Dissenting/Concurring Opinions

Mr. Manfred Nowak, joined by Mr. Dietrich Rauschning and Mr. Hasan Balic, attached a separate opinion in which he argued that the Chamber should have addressed the question of the location of the IEBL. He argued that the de facto occupation of parts of Federation territory by the Republika Srpska was a violation of the Dayton Peace Agreement, and had deprived the applicant of her right to have the competent authorities, i.e. Federation authorities, decide on her claim to regain possession of her apartment and to enable her to return to it. Thus the Republika Srpska was primarily responsible for the violations of the applicant's rights. Most importantly, Mr. Nowak found it unacceptable that none of the three Parties had taken any effective steps to bring about a solution to this territorial dispute. This passivity had led to a situation where the applicant was deprived of her right to an effective remedy and thus a violation by all respondent Parties of the applicant's right to an effective remedy under Article 13.

Mr. Viktor Masenko-Mavi attached a dissenting opinion in which he argued that as the matters complained of by the applicant were clearly within the responsibility of the State, the State should have been found responsible for the violations of the applicant's rights. On the other hand, Mr. Masenko-Mavi argued that the Chamber should not have found the Federation responsible, as it had taken no action indicating a violation of the applicant's rights and had no competence for the reinstatement of the applicant in an apartment located in an area controlled by the Republika Srpska.

Mr. Mato Tadic and Mr. Zelimir Juka joined Mr. Masenko-Mavi's dissenting opinion insofar as it referred to the responsibility of the State.

Decision adopted 9 January 2001
Decision delivered 8 February 2001