VI. STRATEGIES FOR DEALING WITH THE CASELOAD

The Chamber has considered various strategies and procedures for dealing efficiently with its huge caseload and developed several "model" decisions for use in certain types of cases. Scarce resources, especially in terms of staffing and office space, has meant that these strategies, procedures and mechanisms for dealing with its caseload can only be partially implemented. Moreover, other important considerations relating to the purpose and legal mandate of the Chamber and its role in contributing to the rule of law in Bosnia and Herzegovina have influenced the Chamber's strategic approach.

According to Article VIII(2)(e) of Annex 6 to the Dayton Peace Agreement, "the Chamber shall endeavor to accept and to give particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds".

In pursuance of this principle set forth in its founding instrument, the Chamber has adopted the following informal guidelines in addressing its caseload:

- priority is given to allegations of particularly severe violations of human rights, such as violations of the right to life, unlawful detention, disappearances, serious violations of the principle of fair trial;
- priority is given to allegations of discrimination;
- moreover, although not expressly mentioned in Article VIII(2)(e), the Chamber gives priority to applications which either
(a) raise novel legal issues of particular relevance for Bosnia and Herzegovina, so that the Chamber's decision can serve as a precedent or guideline for domestic decision-makers, both for administrative authorities and in the courts; or
(b) are particularly important for the promotion of the rule of law in Bosnia and Herzegovina.

A. SYSTEMATIC VIOLATIONS OF HUMAN RIGHTS

As to the mandate to give priority to allegations of systematic violations of human rights, the Chamber has noted that most of the cases it deals with are individual instances of systematic (at least in the sense of widespread) violations of human rights. This is, e.g., the case of obstruction of the refugee return process resulting in violations of the right to respect for a person's home and property, the freezing of foreign currency bank accounts, employment discrimination, disappearance of persons, and systematic failure of courts to decide within a reasonable time cases brought by members of minorities. These types of cases account for approximately two-thirds of the applications registered with the Chamber. With regard to these systematic violations of human rights, the Chamber sees its role as deciding "lead cases" or precedent-setting cases, which provide domestic and international decision-makers with the principles to be applied in order to address the remaining cases sharing the same fact pattern. As a result of the Chamber's decision in lead cases, legislation giving rise to the human rights violations complained of has been amended both with regard to JNA apartments and with regard to frozen foreign currency accounts.

B. CATEGORIES OF CASES THAT POSSIBLY QUALIFY
FOR "STANDARDIZED" DECISIONS

- Striking out solved cases, particularly repossession of pre-war apartments and houses

Under Article VIII(3) of the Annex 6 Human Rights Agreement, the Chamber may strike out an application from its case list when "the matter has been resolved" and it is compatible with respect for human rights not to further pursue consideration of the matter. Approximately 3,000 applications pending before the Chamber concern reinstatement into possession of an apartment or house. Due to the slowly but constantly growing rate of property law implementation in Bosnia and Herzegovina, many cases of the Chamber's back-log probably are destined for a strike-out decision, because the applicant has regained possession of her/his apartment, or, in the cases concerning the former JNA apartments, has been able to register as owner of the apartment.
The Chamber issues strike-out decisions when it receives a letter from an applicant informing it that he/she has been reinstated. As of 31 December 2001, 297 strike-out decisions had been issued, most of them concerning return to pre-war homes.

Finally, and most importantly, the Chamber is taking a pro-active approach towards identifying cases in which the applicant has repossessed his or her pre-war dwelling. This involves setting up a procedure for the purpose of exchanging information with the CRPC re-possessions database. Again, this new strategy will likely lead to the identification of numerous solved cases.

- Model decisions in frozen foreign currency account cases

About 2,000 "frozen foreign currency account cases" have been lodged with the Chamber. In May 2000 the Chamber delivered its decision in the first four of these cases. In order to comply with the Chamber's remedial orders issued in that decision, the government and legislature of the Federation of Bosnia and Herzegovina have amended the relevant legislation. The Chamber is considering around 30 additional "frozen foreign currency account cases". It will in the process assess whether, as a result of the changes to the legislation, there is still an excessive burden on the individual foreign currency account holders, constituting a violation of their right to peaceful enjoyment of possessions. Should the Chamber find that there is no longer any violation, it might be possible to develop a model decision to declare the remaining frozen foreign currency account cases inadmissible.

Analogously, if the Chamber was to find that, even after the changes to the legislation, there still is a violation of the applicants' right to peaceful enjoyment of their possessions, the Chamber would probably order a remedy which, while formally concerning only the applications decided on, would in substance concern all the 2,000 frozen bank account applicants.

- Model decisions in CRPC decision implementation cases

The Chamber has developed a model decision on admissibility and merits for cases concerning the failure of the housing authorities to implement decisions of the Annex 7 Commission for Real Property Claims of Refugees and Displaced Persons (CRPC). While the model decision enables the Chamber to (relatively) expeditiously decide groups of such cases, other reasons advise against it. These reasons are connected to the explicit and mandatory introduction of the "chronological order" requirement for the reinstatement process in the new property law implementation legislation, imposed by the High Representative in December 2001. In issuing such decisions, - if issued in the streamlined procedure- the implementation of the Chamber's decisions within the deadlines set by the Chamber risks being at odds with the respect of the statutory chronological order requirement. This illustrates a circumstance in which an approach to the Chamber's caseload aiming at the expeditious decision of as many cases as possible might prove counterproductive when viewed within the larger context.

- Model decisions on admissibility and to strike out

The Chamber has developed model decisions for standard inadmissibility and strike-out decisions, which significantly expedite the drafting process in standard situations. These model decisions concern, e.g., cases that are outside the Chamber's competence ratione temporis, where the applicant has failed to exhaust domestic remedies, where the applicant asks the Chamber to act as an additional appeals instance to the domestic judicial system, or cases in which the applicant complains about his/her eviction from an apartment he/she has to vacate in order to allow the return of the pre-war occupant.

- Applications with a clear failure to exhaust domestic remedies

The Chamber has at all times received a great amount of cases in which applicants file an application to the Chamber without awaiting a final decision in their case by the domestic authorities, administrative and judicial. Under Article VIII(2)(a) of the Human Rights Agreement, applicants are required to exhaust effective domestic remedies before applying to the Chamber. The Chamber has in its case law stressed the requirement that the remedies available be effective, and has considered on the merits many applications in which domestic remedies had not formally been exhausted, because the prospect of their providing relief to the applicants' well-founded complaints was dim.

However, the Chamber receives a significant number of applications in which the applicants completely disregard the existence of a domestic court system competent to deal with their grievances, or address the Chamber more or less at the same time as they initiate proceedings before domestic authorities. In most of these cases, there is prima facie no reason to doubt that the domestic remedy could be effective. These applications therefore appear to be clearly inadmissible.

The Chamber could increase the number of decisions issued by identifying these cases and declaring them inadmissible, particularly so if it had more national lawyers. However, it may be questioned whether the Chamber's resources are well-invested in issuing numerous decisions rejecting clearly inadmissible applications. The argument could be made that an increased number of such inadmissibility decisions could discourage future applications of the same abusive kind. However:

(a) most applicants are not represented by lawyers, and therefore not aware of admissibility requirements; and
(b) filing an application with the Chamber does not involve any costs, while lawyers' fees and court expenses are for many persons an obstacle to litigation before domestic courts. They are therefore not easily discouraged from filing applications with the Chamber instead of the domestic court system.

C. BALANCING QUANTITY OF DECIDED CASES V. IMPACT OF DECISIONS

The Chamber's output, in numerical terms, could probably be increased by allocating a greater portion of its scarce resources (i.e. lawyer and translator working hours) to the issuance of decisions in strike-out cases, cases permitting the drafting of standardized decisions, and clearly inadmissible cases. However, by pursuing such a "quantity-oriented" approach, the Chamber would be mostly deciding cases which either are already decided from a substantive point of view (because the matter is solved in fact, or because the Chamber has stated the law in a lead decision addressing the same issue, thereby substantially deciding the other identical cases), or which do not even come close to revealing a violation of the Human Rights Agreement.

The Chamber is currently primarily allocating its resources to deciding:

(a) cases involving requests for provisional measures, which by their nature have to be dealt with urgently; and
(b) cases involving allegations of particularly serious violations of human rights and discrimination, and cases raising new legal issues, where the Chamber's decision can function as a precedent for domestic courts, and, finally, other cases which promise to have a particular impact on the rule of law in Bosnia and Herzegovina.

It is fair to say that the overall procedure (written proceedings involving the parties, possibly oral hearing, legal research of both domestic and international law, drafting of memoranda and decisions, deliberations of the judges) in deciding one admissibility and merits case on average involves the same amount of resources (lawyers', translators' and judges' time) required to decide perhaps 40 or 50 of the applications that could be solved by a standardized decision.

Nonetheless, the Chamber's impact on respect for human rights and the rule of law in Bosnia and Herzegovina is secured primarily by these "big", resource-intensive decisions, and not by the fifteen to thirty inadmissibility and strike-out decisions the Chamber issues every month.

It is therefore necessary for the Chamber to balance two conflicting necessities: on the one hand, to solve the important cases it is mandated to give priority to, novel cases that will set precedents or cases that are of particular importance for the rule of law in Bosnia and Herzegovina, and, on the other hand, to decide as many of the "smaller", "standard", strike-out and inadmissible cases as possible, in order to limit the uncontrolled growth of its backlog of unsolved cases.

D. LIMITATIONS ON STREAMLINING

It is worth mentioning that the Chamber is considering the legal feasibility of more radical measures for the streamlining of its procedures, which would touch the very core of the judicial process before the Chamber, e.g., introducing a judge rapporteur system, or small panels for standard inadmissibility and strike-out decisions (possibly composed only of domestic judges). However, the provisions of Annex 6 place severe limitations on the legal possibility to validly change proceedings before the Chamber in these respects. Moreover, it is open to doubt whether these changes would actually increase the Chamber's ability to solve substantially more cases than it is now solving.