VIII. CASES BEFORE THE CHAMBER IN 2002

This section of the Report is intended to provide a broad picture of the Chamber's casework during the year and to highlight some of the main developments in its case-law. A list of all decisions taken during the year on admissibility or merits, the striking out of cases, on requests for review or on review itself where the request for review has been granted, is attached to this Report as Annex G. Summaries of a selection of decisions on the merits are annexed as Annex H. The full text of all decisions on the merits, and a selection of decisions on admissibility and to strike out will be included in two companion volumes of decisions (January-June 2002 and July-December 2002) published by the Chamber. Copies of particular decisions are also available from the Secretariat on request. Decisions of the Chamber are also accessible on its web site on the searchable database at www.hrc.ba.

1. Provisional Measures

The Chamber continues to receive substantial numbers of requests for provisional measures. In accordance with Article Vlll, para. 2(f) of the Human Rights Agreement all cases involving such requests are reviewed as a matter of priority. The Chamber has developed a streamlined procedure for dealing with cases where the request for a provisional order appears clearly ill-founded.

2. Questions of Admissibility

When a case comes before it, the Chamber must decide whether or not to accept it, taking into account the admissibility criteria set out in Article VIII, para. 2 of the Agreement. The principal criteria relate to the exhaustion of any effective domestic remedies, the introduction of the application within six months of the final domestic decision, whether the application is compatible with the Agreement (i.e., principally whether it is within the Chamber's jurisdiction as regards the time, place, subject matter and responsibility for the matter complained of) and whether the application is manifestly ill-founded. These provisions are similar to, but not identical with, the provisions of the European Convention on Human Rights governing the admissibility of applications to the European Court of Human Rights and the Chamber has held that it has a broader discretion than does the European Court in deciding whether or not to accept an application.

The number of inadmissibility decisions has increased substantially during the year. In particular an increasing number of cases has been rejected for non-exhaustion of domestic remedies as the functioning of the domestic courts has improved. However, there have still been numerous instances during the year where, due to delay or other defects in the domestic procedures, the Chamber has not been satisfied that the domestic remedies available in theory are effective in practice. In such cases, following the long-standing case-law of the European Court of Human Rights, the Chamber will rule that the remedy in question need not be exhausted. It also remains rare for the domestic courts and other authorities to show themselves willing to apply the provisions of the European Convention in priority over other law, as they are required to do under the Constitution of Bosnia and Herzegovina (see Annex 4 to the General Framework Agreement, Article II para. 2).

3. Striking Out etc.

Under Article VIII, para. 3 of the Agreement the Chamber may suspend consideration of, or strike out, an application on the ground that the applicant does not intend to pursue it, that the matter has been resolved, or that for any other reason continued examination of the application is no longer justified. It can only take such a decision if satisfied that to do so is consistent with the objective of respect for human rights.

The Chamber has made increasing use of this provision. A total of 308 applications were struck out during the year. In many cases the decision is based on the applicant's withdrawal of the case or failure to respond to communications from the Chamber, leading to the conclusion that the applicant does not intend to pursue the case.

Where the applicant's case has been substantially resolved the Chamber may also strike the case out even if all the applicant's claims have not been met. In particular in the field of housing, the Chamber has received many applications from persons complaining that they have been unable to return to the properties occupied by them before the war. Following earlier decisions of the Chamber, substantial changes in legislation and administrative practice have secured the right to return in domestic law in most of these cases. Where the applicant succeeds in recovering possession of the property during the proceedings, the Chamber will not normally retain the case solely to determine a claim for compensation for the alleged breach of the applicant's rights in the past. The Chamber's policy in relation to such cases was explained in the case of Vujicic v. the Federation of Bosnia and Herzegovina (case no. CH/99/2198, decision of 10 October 2002) where the applicant had regained possession of his property. The Chamber pointed out that it is obliged under the Agreement to give priority to allegations of especially severe or systematic violations of the Agreement and to those founded on alleged discrimination. In view of the large and increasing number of cases pending before it and the significant progress made in the implementation of the property laws, it found that further examination of the application was not justified. It held that the objective of respect for human rights referred to in Article VIII (3)(c) of the Agreement must be understood to embrace not only the applicant's rights but also its more general mandate to assist the Parties in securing the rights of all persons within their jurisdiction. It has adopted the same approach in numerous other cases.

4. Questions Arising on the Merits

The Chamber continues to deal with a large and diverse case-load. The following is a selective outline of some of the more significant matters the Chamber has dealt with in 2002.

a) The Right to Life

In February 2002 the Chamber delivered a decision finding a violation of inter alia the right to life under Article 2 of the Convention, arising from the failure of the national authorities effectively to prosecute the killer of a person (Š.T.), who had been shot in the street by one B.B. following an argument. B.B. was prosecuted and the Livno Municipal Court found that he had killed Š.T.. However, the court found that B.B.'s responsibility for his acts had been impaired by alcohol and post-traumatic stress and ordered that he should undergo a period of psychiatric treatment. B.B. was released within a few months. Subsequently, following a petition for the protection of legality, the Supreme Court of the Federation found that the Municipal Court had violated several provisions of the law in deciding the question of B.B.'s responsibility. However, since a reformatio in peius at the expense of the accused was not possible the Municipal Court decision stood and B.B. remained free. The Chamber found that there had been a fundamental failure by the Municipal Court to give proper consideration to the question of B.B.'s criminal responsibility and that there had been a violation of Article 2 of the Convention in so far as it imposed a positive obligation on the authorities to take appropriate steps, such as investigation and prosecution, to safeguard the lives of those within their jurisdiction.

As mentioned below, the Chamber also found a violation of Article 1 of Protocol No. 6 to the Convention, which abolishes the death penalty, in a case where terrorist suspects were handed into the custody of United States forces without any assurance that they would not be subjected to the death penalty (see the Boudellaa case below).

b) Missing Persons

The Chamber has received many cases submitted by the relatives of persons who have gone missing during the war in Bosnia and Herzegovina. It has no competence ratione temporis to deal with complaints concerning events before 14 December 1995, when the Agreement came into force. It cannot therefore rule on such questions as whether the rights to life or liberty of the disappeared persons were violated during the war. However, it can consider whether the authorities' treatment of the relatives of missing persons after that date has respected their rights under the Agreement.

One such case dealt with during the year was Unkovic v. the Federation of Bosnia and Herzegovina, which arose from the murder of members of the applicant's family in 1992. The applicant complained of alleged inadequacies in the authorities' investigations and of their alleged failure to provide him with information about the fate of his relatives. In a decision on review the plenary Chamber considered whether the applicant's rights under inter alia Articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for family life) had been violated. Taking into account case-law of the European Court of Human Rights, the Chamber found that the case raised issues within the scope of these provisions but that in the particular circumstances of the case, where a successful prosecution for the murders had been brought, there had been no violation of the applicants' rights.

During 2002, the Chamber received some 1500 applications directed against the Republika Srpska submitted by the relatives of persons presumed to have been killed during the events surrounding the fall of Srebrenica in July 1995. These cases raise similar issues regarding the rights of family members to be informed about the fate and whereabouts of the missing persons. The Chamber transmitted a selection of 49 of the cases to the respondent Party for written observations under Articles 3, 8 and 13 of the Convention. The Chamber delivered its decision on admissibility and merits of these 49 cases in March 2003.

c) Arrest and Detention

As in previous years, the Chamber has dealt with several cases concerning arrest and detention, including allegations of ill-treatment in custody. These cases have raised issues concerning the lawfulness of detention under Article 5 of the Convention and the treatment of detainees under Article 3 (see e.g., decisions of 8 November 2002 in Marjanovic v. Republika Srpska and Aleksic v. Republika Srpska). In the case of Bajric v. the Federation of Bosnia and Herzegovina (decision of 10 May 2002), the Chamber found that the applicant had been subjected to inhuman and degrading treatment whilst in police custody. Noting that the applicant had informed the investigative judge of the ill-treatment and that he had had visible injuries, the Chamber also found that the failure of the judge to take any action to investigate the complaint involved a breach of the positive obligation incumbent on the respondent Party to secure the applicant's rights under Article 3.

d) Civil and Criminal Proceedings

The Chamber has dealt with numerous cases concerning possible breaches of Article 6 of the Convention, which guarantees the right to a fair hearing in civil and criminal proceedings. Issues which have commonly arisen include the fairness of particular proceedings and the length of proceedings.

In a number of cases novel issues have arisen regarding the availability of access to court to challenge administrative decisions affecting private rights. In the case of "ORD0" - RTV "Sveti Georgije" v. Bosnia and Herzegovina (decision of 5 July 2002) the Chamber found that there had been a breach of this right in relation to proceedings leading to the revocation of a television broadcasting licence. It held that the proceedings before the administrative authorities did not meet the requirements of Article 6 of the Convention and that in the absence of any possibility of review of the revocation decision by a court with full jurisdiction, the right of access to court had been violated. Subsequently a similar decision was reached in relation to a decision denying the applicants long-term radio and television broadcasting licences (Televizija "MIB" Brcko and Muzicka radio stanica "Studio 76" Brcko v. Bosnia and Herzegovina, decision of 6 December 2002).

e) Expulsion or Removal from the Territory

Several cases concerning expulsion or removal from the territory of Bosnia and Herzegovina have been considered. In particular in October 2002 the plenary Chamber delivered its decision on the admissibility and merits of four applications submitted on behalf of persons suspected of involvement in terrorism, who here handed over to military forces of the United States of America and removed to the military detention facility at Guantanamo Bay in Cuba (Boudellaa and others v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina). The applicants were arrested in October 2001 on suspicion of having planned an attack on the Embassies of the United States and the United Kingdom in Sarajevo. On 17 January 2002 their release from pre-trial detention was ordered by the competent national court. They were then immediately taken into the custody of the Federation police, handed over to the US forces and removed to Cuba. The Chamber found that there had been no basis in domestic law either for the applicants' detention after their release by the court, or for their subsequent removal. It held that their rights not to be arbitrarily expelled under Article 1 of Protocol No. 7 to the European Convention had been violated by both respondent Parties, as had their rights to liberty and security of person under Article 5 of the Convention. The Chamber also held that the failure of the authorities to seek assurances that the death penalty would not be imposed violated the applicants' rights under Article 1 of Protocol No. 6 to the Convention, which provides for the abolition of the death penalty. In three of the cases the Chamber also held that decisions depriving the applicants of their citizenship violated the presumption of innocence in criminal proceedings provided for in Article 6(2) of the Convention. Two similar cases remained pending before the Chamber at the year's end.

In another immigration case (Unal v. Bosnia and Herzegovina ) the plenary Chamber adopted a decision finding that the applicant's rights under Article 1 of Protocol No. 7 to the Convention to submit reasons against his expulsion and to have his case reviewed had been violated (decision adopted in December 2002, delivered 10 January 2003). The applicant, a Turkish citizen, had received, in January 2002, a decision ordering his expulsion. The decision indicated that no appeal was allowed but that an administrative dispute could be initiated before the Court of Bosnia and Herzegovina within two months of the decision. The Chamber noted that the relevant legislation provided for an appeal to the appeals panel of the Council of Ministers, but that the panel in question had not been established at the date of the decision. Nor had the Court of Bosnia and Herzegovina been established at that time.

f) Repossession of Pre-War Housing

A high proportion of the cases pending before the Chamber still relate to property rights of one form or another. The Chamber has continued to deal with cases concerning refusal or delay in implementing the right of refugees and displaced persons to return to their pre-war homes, although in view of the generally improving situation as regards implementation of this right the Chamber has, in the latter part of the year particularly, been giving greater priority to other issues.

Certain housing cases which the Chamber has considered during the year relate to specific aspects of the property laws which have not previously been considered. One group of such cases concerns the law applicable where the right of return is claimed by the pre-war occupant over property which has been disposed of under a contract for the exchange of property. The Chamber held a public hearing in relation to a group of four such cases in October 2002. The cases raise issues under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. Issues arise in particular as to where the onus of proof should lie when the validity of an exchange contract is disputed in the domestic courts and in relation to the handling of requests for provisional orders in the domestic courts. Several applicants complain that they have requested the domestic courts to protect them against eviction pending the resolution of court proceedings as to the validity of an exchange contract, but that such requests are left undecided. At the hearing the Chamber received amicus curiae submissions on issues of general importance from the OSCE and the Office of the High Representative, in addition to hearing the parties. The Chamber delivered four decisions in "exchange contract cases" during January and February 2003.

Other housing cases raising new issues concern the eviction of temporary occupants from apartments which are not being reclaimed by a pre-war occupant and the exclusion of certain categories of person from the right to be registered as owners of, or to repossess, apartments formerly under the control of the Yugoslav National Army.

g) Other Property Cases

The Chamber has again considered a group of cases concerning the expropriation of land in the Glamoc area for use as a military range (Ubovic et al. v. the Federation of Bosnia and Herzegovina). In a decision on the admissibility and merits of these cases taken in September 2001 the Chamber had found violations of Article 1 of Protocol No. 1 to the Convention and of Article 8 of the Convention itself and ordered the Federation to decide either to pursue the expropriation of the applicants' property in accordance with the law, or not to do so and to return the applicants' land to them and compensate them for damage suffered. The Federation informed the Chamber that it had abandoned the expropriation. In a decision on further remedies taken in December 2002 the Chamber ordered the Federation inter alia formally to withdraw the declaration of general interest. In the light of the Federation's continuing inaction with regard to compensating the applicants, the Chamber also decided to appoint an expert to report on the amount of compensation payable to each applicant.

In another group of cases (Hajder et al. v. the Federation of Bosnia and Herzegovina) the applicants complained of the use of their land by SFOR for training purposes. The Chamber declared these cases inadmissible in November 2002 on the ground that the Federation was not responsible for the activities of SFOR and the case was therefore incompatible with the Agreement ratione personae.

The Chamber has also dealt with a number of cases concerning frozen bank accounts in the Federation, where the rights of foreign currency account holders were converted into vouchers for use in the privatisation process. In one group of such cases (Todorovic and others v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, decision on admissibility and merits of 11 October 2002) it considered the position of persons holding such accounts in light of changes in the relevant law and practice introduced by the Federation authorities following the Chamber's decision on the admissibility and merits of the test case of Poropat and others v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina (decision of 9 June 2000). In that decision the Chamber ordered the Federation to amend the privatisation programme so as to achieve a fair balance between the general interest and the rights of the holders of the bank accounts in question. Thereafter certain legislative changes were made but the position was further complicated by a decision of the Constitutional Court of the Federation, which held that the provisions providing for the scheme of conversion of foreign currency accounts into certificates for use in the privatisation process contravened the Federation Constitution.

In the Todorovic and others case the Chamber held that the situation of the applicants, as account holders, violated their rights under Article 1 of Protocol No. 1 to the Convention. It held that the state of legal uncertainty in which the applicants were placed, the continued application of the laws despite the Federation Constitutional Court's decision, the lack of any timely amendment to the laws and the apparent unavailability of relief in the domestic courts created a disproportionate interference with the applicants' property rights and therefore violated Article 1 of Protocol No. 1 to the Convention. It ordered the Federation to enact laws or regulations clearly addressing the problem in a manner compatible with Article 1 of Protocol No. 1 as interpreted in the Chamber's decisions.

Some 2,000 similar cases remain pending before the Chamber. Approximately 30 cases concerning foreign currency accounts in the Republika Srpska are also pending.

g) Employment

The Chamber receives many applications concerning employment matters and access to the public service. Since the European Convention does not guarantee the right to employment, the Chamber can only deal with such cases if they raise issues of discrimination in connection with employment rights within the scope of one of the other human rights instruments mentioned in the Agreement.

In the case of Mitrovic v. the Federation of Bosnia and Herzegovina (decision of 2 September 2002) the Chamber found that the applicant had been discriminated against in relation to his employment by a court decision which held that the applicant had been lawfully dismissed from his employment due to his participation in the armed conflict "on the side of the aggressor". Since this ground of dismissal applied almost exclusively to persons of non-Bosniak origin the Chamber concluded that the applicant had been unlawfully discriminated against due to his national or ethnic origin in connection with the right to work under Article 6 of the International Covenant on Economic, Social and Cultural Rights.

Another case (Selimovic and others v. the Federation of Bosnia and Herzegovina, decision of 11 January 2002) concerned a decision of the House of Peoples of the Federation Parliament in which it decided not to approve the nomination of the eight applicants for re-appointment as judges of the Supreme Court of the Federation. The Chamber found that the decision had unlawfully discriminated against the applicants on the ground of their age in the enjoyment of their right of equal access to the public service under Article 25(c) of the International Covenant on Civil and Political Rights.

h) Pensions

During the year the Chamber has considered a group of cases (Klickovic and others v. Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska) concerning the pension rights of displaced persons. The applicants are retired persons who lived in Sarajevo before the war. They were displaced during the war and lived in the territory of the Republika Srpska. They have since returned to live in Sarajevo. Under the arrangements in force their pensions are paid by the Republika Srpska pension fund. They complain that the pensions they receive are less than those paid to other Federation residents who were not displaced. The cases raise issues under Article 1 of Protocol No. 1 to the Convention and in relation to discrimination in the enjoyment of the right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Chamber's decision in these cases was adopted and delivered in January 2003.

i) Freedom of Expression

On 5 July 2002 the Chamber delivered its first decision dealing with the merits of a complaint concerning freedom of expression ("ORDO" - RTV "Sveti Georgije" v. Bosnia and Herzegovina). The applicant, which was a private radio and television station, complained of the revocation of its provisional broadcasting licence by the Communications Regulatory Authority "the CRA". The licence was first suspended by the CRA on the ground that the applicant had broadcast a tendentious and one-sided programme regarding violent disturbances in Banja Luka on the occasion of the foundation stone laying ceremony for the reconstruction of the Ferhadija mosque. The licence was then revoked when the applicant breached the terms of the suspension. Following a public hearing, the Chamber examined the case under Article 10 of the European Convention (freedom of expression). After considering all the circumstances it found that the CRA decisions had been justified as necessary in a democratic society for the protection of the rights of others, for the protection of public safety and for the prevention of disorder or crime.
5. Remedies

Article XI, para. 1(b) of the Agreement gives the Chamber a wide power to order remedies where it finds a violation of the Agreement. It provides that the Chamber shall address in its decision "what steps shall be taken by the respondent Party to remedy the breach, including orders to cease and desist, monetary relief. ... and provisional measures'".

Compensation and the return of property continue to be the remedies most commonly ordered. A wide variety of other remedies has also been awarded, however. These include orders for: the investigation of allegations of ill-treatment with a view to the prosecution of those responsible; the prompt conclusion of proceedings which have lasted an unreasonable time; and release from detention and reinstatement in employment.

In the Selimovic case (supra) the Chamber ordered the respondent Party to include the applicants in a new procedure for the filling of vacancies in the Supreme Court. In its decision on further remedies in the Ubovic case (supra) it ordered the respondent Party to take a formal decision withdrawing a declaration of general interest in relation to the expropriation of the applicants' property. In the Boudellaa case (supra) the Chamber ordered inter alia the use of diplomatic channels to protect the basic rights of the applicants, the seeking of assurances that the applicants would not be subjected to the death penalty and the retention of lawyers to protect the applicants' interests while in US custody.

6. Review Proceedings

Where a case is decided by a Panel, the plenary Chamber may decide, in accordance with Article X, para. 2 of the Agreement, to review the decision. Rule 64 of the Rules of Procedure provides that the Chamber shall not accept a request for review unless it considers that the case raises a serious question affecting the interpretation or application of the Agreement, and that the whole circumstances justify reviewing the decision. In practice the Chamber uses its powers sparingly.

In the Unkovic case (supra), where the Panel had found a violation of Article 3 of the Convention in connection with the authorities' treatment of the applicant as a relative of missing persons, the Chamber accepted the respondent Party's request for review and reversed the Panel's decision. In the Bajric case (supra) a request for review in relation to part of the Panel's decision was accepted on the basis that the Panel had not taken into account certain documentary evidence submitted by the respondent Party. The Chamber's decision on review in this case was delivered in January 2003.