Case No.: CH/01/7351
Applicant: Ana KRALJEVIĆ
Respondent Party: Federation of Bosnia and Herzegovina
Date Delivered: 12 April 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicant is a citizen of Bosnia and Herzegovina of Croat origin. Before the armed conflict in Bosnia and Herzegovina she was an ambulance driver at the Medical Center in Ilidža. During the war she was unable to reach her workplace. After the war the applicant unsuccessfully requested to resume her work.

In June 1996 the Medical Center issued a decision terminating the applicant's employment as of 2 May 1992 for not reporting to work for more than twenty days without providing a reason. The decision was posted on a bulletin board within the Medical Center's premises.

In 1996 after the reintegration of Ilidža into the territory of the Federation the Medical Center employed two new drivers. They had not worked at the Medical Center before and were of Bosniak origin.

In January 2000, after the Law on Labour entered into force, the applicant filed a request to the Medical Center seeking reinstatement into her employment position. In February 2000 the Medical Center requested her to present her personal dossier which could be found at the Ilidža Municipality. In the dossier, which the applicant received from the Ilidža Municipality, she discovered, for the first time, the decision terminating her employment, dated 13 June 1996.

In March 2000 the applicant filed an objection against the decision of 13 June 1996 to the Medical Center. On 1 June 2000 the Medical Center sent a notification to the applicant that in accordance with the instructions on Article 143 paragraph 2 of the Law on Labour her request of January 2000 was considered ill-founded and accordingly rejected.

Admissibility

The Chamber observed that although the applicant was prevented from resuming work before 14 December 1995 (the date of entry into force of the Dayton Peace Agreement), the decision on employment termination was issued in 1996, so the Chamber had competence ratione temporis to hear the case. The Chamber also noted that the applicant could not regain employment through the relevant domestic courts, and concluded that no remedy was available to the applicant for the purpose of obtaining re-employment. The Chamber, however, observed that the applicant did have access to domestic courts and so it found the applicant's claims under Article 6 of the Convention inadmissible as manifestly ill-founded.

Merits

Examining the evidence, the Chamber first determined that the applicant was treated differently from others in the same or relevantly similar situations. The Chamber then concluded that the Medical Center's decision to hire two new drivers instead of the applicant had discriminatory motives and was influenced by her Croat descent. The Chamber observed that during the armed conflict the applicant was absent from work for good cause, and did not have to provide a timely explanation for her absence. In addition, the decision concerning her termination was not delivered to the applicant as provided by domestic law, so it did not become effective until later, when the applicant found it in her personal file. The Chamber thus concluded that the respondent Party failed to meet its burden of demonstrating that its actions were reasonably and objectively justified. The Chamber found that the applicant had been discriminated against in the enjoyment of her right to work and to just and favourable conditions of work as defined in Articles 6 paragraph 1 and 7(a)(i) and (ii) of the ICESCR and Article 5(e)(i) of CERD.

Remedies

The Chamber ordered the Federation to ensure that the applicant was no longer discriminated against in her right to work and to just and favourable conditions of work, and that she was offered an opportunity to resume her work on terms appropriate to her former position and equal to those enjoyed by other employees.

Addressing the applicant's request for compensation, the Chamber took into account the applicant's unsuccessful attempts to resume work and the Medical Center's inappropriate responses to her efforts from the date the Chamber obtained ratione temporis jurisdiction, 14 December 1995, until the delivery of this decision on 12 April 2002. For these reasons the Chamber awarded the applicant, on an equitable basis, a total of KM 15,000 by way of compensation for pecuniary and non-pecuniary damages.

Decision adopted 5 March 2002
Decision delivered 12 April 2002