Introductory notes: reinstatement to former position

As to sustainable return, to have the possibility of providing the means to earn a living is equally as important as the reinstatement into possession of a property. It was assumed that a returnee would be reinstated without trouble to his/her former position and, in any case, if the employer were still in business. However, many years after the Dayton Peace Agreement, the mere fact that a number of companies have ceased production or operate at their minimum capacity and, as a result, require fewer employees shows that reinstatement to former positions has had little prospect. Moreover, returnees had no access to the available positions and, in particular, if it involved the so- called “minority” returnees. Actually, they had to face a simple problem: during the armed conflict, members of the ethnic group that remained or moved to a certain area at that time had mainly taken over or occupied their positions. Such an employment practice, or the practice when filling these posts during the armed conflict, had been justified on security and economic grounds. In order to resolve the issue of surplus employees in companies operating with financial difficulties or the issue of employees who were refugees, certain legal regulations were adopted on the basis of which many employees were placed on so called “waiting lists”. In few cases, employees placed on such lists were paid a certain kind of compensation for a certain period of time. In other cases, such employees were terminated from their employment.²⁰⁸³ Public companies’ unreadiness to remove employees from waiting lists amounted to a violation of the relevant labour regulations. Moreover, such actions were discriminatory in cases where those positions were available to members of a “majority” ethnic group within a certain territory. After the entry into force of Annex 6 to the Dayton Peace Agreement, in cases where the employees were placed on the waiting lists or fired from their jobs, the Human Rights Chamber was in a position, on the basis of Article 6, paragraph 1 and Article 7, paragraphs (a) (i) and (ii) of the International Covenant on Economic, Social and Cultural Rights, to establish a violation of the right not to be treated differently in the enjoyment of their employment rights, as well as a violation of the right to a fair trial or the right to a decision within a reasonable time under Article 6 of the ECHR.²⁰⁸⁴ This often occurred because the administrative authorities or the courts acted in a partial and discriminatory manner and continually and unreasonably delayed the proceedings related to reinstatement of employees to their former employment.²⁰⁸⁵ In addition, persons who were members of minority communities but stayed in certain areas and, subsequently, took refuge or moved to the areas where they were members of a majority ethnic group, and who sought employment there, also suffered damage as a result of such discriminatory or unlawful deprivation of the right to work. Likewise, returnees to certain areas, which were populated in the meantime by members of another ethnic community, were often denied the right to be reinstated to their former positions under the pretext of being “on the side of the aggressor”.²⁰⁸⁶

The irony of the whole situation was that employers, who were unscrupulous in terminating employees during the armed conflict and who ensured that decisions terminating employment were delivered at any rate to employees, circumvented their responsibility after the entry into force of the Dayton Peace Agreement as the Human Rights Chamber was not competent ratione temporis for the events occurring before 14 December 1995. In this way, unlike cases related to waiting lists (a continuing violation), or cases related to termination of employment after 14 December 1995 (either with or without retrospective effect), the Constitutional Court and the Human Rights Chamber declared that they had no competence ratione temporis in cases related to the termination of employment prior to 14 December 1995. The Entities attempted to legalise the cases of unlawful termination of employment though special legal provisions incorporated into new labour laws. In the Republika Srpska, employees who were placed on waiting lists were sent to a Commission, which had been established for the payment of severance pay, the amount of which depended on various factors including, inter alia, the length of service. In this regard, it was unclear as to whether the new regulations ruled out the possibility to file a request for reinstatement to the former position. Since it was a classic case in practice, the constitutionality of a severance payment became questionable when viewed in the context of the return of refugees and displaced persons. In its controversial decision, the Constitutional Court of Bosnia and Herzegovina took the position that the disputed regulations did not raise any constitutional issue, taking into account the priority economic objectives. However, the said decision remained incomplete as to the issue of whether an injured party may file a lawsuit with the competent court instead of receiving severance pay and claim reinstatement.²⁰⁸⁷

In a Separate Opinion, Judge Marko openly criticised the majority decision. In his opinion, although the approach taken by the legislature may be practical and reasonable in a purely economic point of view, its effects are highly problematic: undeniably discriminatory dismissals in the past, which formed a part of an organised campaign of ethnic cleansing, are upheld and in some way legalised, thereby creating new discrimination. He further stated that it may not be the legislative objective, but it is certainly the effect of such a regulation. The payment of severance pay, on the other hand, puts an end to the possibility to address a court and, therefore, it is disproportionate and does not sufficiently take into account the main objective of the return of refugees and displaced persons.

In the Federation of Bosnia and Herzegovina, the legislature also made efforts to create a complete and sustainable resolution of the heavy burden of “semi- employed” workers placed on waiting lists who, in the privatisation process, were an unbearable burden of uncertainty for companies. According to the laws of the Federation of Bosnia and Herzegovina, all employees placed on waiting lists, or all those who were factually in such a situation, would formally become unemployed after the expiry of a 6-month period and would be entitled to claim severance pay. The Entity’s special commissions and cantonal commissions were created with regard to the determination and payment of severance pays. In order to protect a number of companies from bankruptcy, the legislature quickly reduced the amount of severance pay. The Constitutional Court of Bosnia and Herzegovina held that such a correction was consistent with the Constitution of Bosnia and Herzegovina since significant general economic interests justified it.²⁰⁸⁸ Nevertheless, likewise in the Republika Srpska, there was huge confusion between the commissions created in accordance with the new provisions of the Labour Law and the ordinary courts. The main victims of the situation as such were those who were fired and those who were placed on waiting lists. The commissions were repeatedly remitting cases of the mentioned persons to the courts and vice versa and, as a result, they received decisions which did not have any legal value ²⁰⁸⁹ According to the case-law of the Human Rights Commission within the Constitutional Court, legal uncertainty related to the possibility of challenging the lawfulness of the termination of employment before the ordinary courts, and not only the commissions’ decisions on the amount and grounds of severance pay, was in contravention of the right of access to court under Article 6 of the ECHR.²⁰⁹⁰ However, it should be taken into account that the Human Right Chamber for Bosnia and Herzegovina, before the decision of the Human Rights Commission within the Constitutional Court has been taken, clearly opposed the entire system of “waiting lists” in the Federation of Bosnia and Herzegovina, holding that it was in contravention of the ECHR (although in Case No. CH/98/1714-A&M it adopted remedies solely in respect of the appellant’s situation). Such a conclusion is not directed against the idea itself, i.e., the mechanism of severance pay, but against the practical impossibility of having a court decision by which it would be determined whether placement on the waiting lists is per se unlawful and which, if so, could result in reinstatement to a former work position.

Nevertheless, the cases concerning the employment of former employees and civil servants in the former institutions of the Republic of Bosnia and Herzegovina, who continued their employment during the period between the entry into force of the Dayton Peace Agreement and the establishment of new institutions of Bosnia and Herzegovina, are not directly linked with the return of refugees and displaced persons. Since the jurisdiction of the institutions of Bosnia and Herzegovina was reduced, it was necessary to reduce the number of civil servants, too. However, this process in the new institutions was mostly non-transparent and arbitrary and the Human Rights Chamber found violations of the human rights in respect of the applicants’ claims. In the Kajtaz et al. case for example, the applicants continued working within the institutions of Bosnia and Herzegovina originating from the institutions of the Republic of Bosnia and Herzegovina and received their salaries on a regular basis. In 1998, the selection process was going on behind their backs, and the applicants learnt by chance about the results thereof. The applicants never received any procedural decision changing their status or position.²⁰⁹¹ As a consequence and because of the insufficiently clear and coherent overall legal system for adjudicating these claims and the competence of the courts to decide on the lawfulness of the acts passed by State institutions and due to the non-existence of well-functioning courts at the State level, the applicants found themselves in a “grey legal zone” where they were “betrayed” by both their employers and the courts. The Human Rights Chamber established first a violation of the right of access to court.²⁰⁹² With regard to ethnic origin, which was a selection criterion, the Human Rights Chamber accepted or recognised that, for a certain time period, Bosnia and Herzegovina, as a respondent party, would be entitled to achieve an ethnic balance of the employees within its bodies since the objective to achieve a national balance was legitimate in the context of the overall political situation in the country.²⁰⁹³ Yet, the Human Rights Chamber for Bosnia and Herzegovina established that the practical application of the said criterion was arbitrary for a number of reasons. With respect to the applicants of mixed origin or mixed marriages, who did not want or could not declare themselves as being affiliated with an ethnic group, the Human Rights Chamber established that the applicants were discriminated against on the ground of national and ethnic origin in their enjoyment of the right of access to public service under Article 25(c) of the International Covenant on Civil and Political Rights.²⁰⁹⁴