Authorisation to file an application (standing to sue)

An individual applicant must claim to be the victim of human rights violations under the circumstances of a case. Therefore, a director of a legal entity, or a director of a school cannot be the applicant and claim at the same time that the human rights and freedoms of their legal entity, i.e., a school, have been violated. Under such circumstances, they can only be the representatives of the applicants.³²¹⁰ Similarly, a father cannot be the applicant and claim at the same time that the human rights and freedoms of his adult daughter have been violated. In such a case, he can only be her legal representative.³²¹¹ If the legal interest of a person was nothing but “touched”, based on the enforcement of a decision, his/her human rights and freedoms have not been violated so that he/she cannot claim to be the victim of human rights violations.³²¹² A holder of shares of a legal entity cannot complain about a violation of his/her property rights if he/she holds that the decision determining the proportion between private capital and State-owned capital in that company is unfair. In that case, the only “person” that has a right of action is the company.³²¹³ If an applicant acts both in the name of the alleged victims and in his/her own name, he/she has to be provided with authorisation to do so.³²¹⁴ Actio popularis is therefore excluded.³²¹⁵ Accordingly, a registered association of retired persons cannot claim to be the victim of human rights violations for the alleged failure of a public authority to raise the pension amount. In order for the association to act in the capacity of a legal representative of individual pensioners and institute proceedings before the Chamber, it has to be provided with their power of attorney.³²¹⁶ The same applies to a group of representatives of the municipal council who challenged the municipal council’s ruling on property deprivation since they did not claim to be the victims themselves of human rights violations, nor did they represent possible victims of human rights violations.³²¹⁷ However, a religious community may be the victim of a violation of the right to prohibition of discrimination relating to property rights and freedom of religion.³²¹⁸

If the applicant dies after he has filed an application, and a wish and interest in the outcome still exist, his/her legal successors may undertake the conduct of the proceedings relating to the application in the manner that the legal successors’ status as applicants is recognised, since the deceased person cannot keep that status.³²¹⁹ Such formulation by the Chamber should not fully attain what was provided for by Article VIII.1 of Annex 6. This Article does not relate to the legal successor in terms of taking over the position of the applicant but to the representation of (“on behalf of”) the alleged victims that are deceased or went missing. Therefore, this is a special case of procedural legal standing. Therefore, in case of succession, the proceedings must involve a “legal”, and not a “presumed” legal successor, which is conditional on a decision on inheritance issued by the competent court³²²⁰

In the later case-law, the Human Rights Commission within the Constitutional Court of BiH made a distinction as to whether “the victim of a violation” of human rights died before or after the application had been filed with the Chamber.³²²¹ If the person had died before filing an application, the legal successor could not file an application before the Chamber in their own name.³²²² An exception applies to the cases in which a violation under Articles 2, 3 and 8 of the ECHR is claimed.³²²³ If the “victim of human rights violations” dies after filing an application, his/her close relatives, i.e., legal successors, can continue with the proceedings, if they succeed to prove before the Chamber that the death cannot affect the decision on the merits. This is the case if close relatives, i.e., heirs, succeed in proving their own legal interest.³²²⁴ Otherwise, the request of close relatives, i.e., heirs, can be treated as a new application.³²²⁵ As to the payment of compensation for damages, the close relatives, i.e., legal successors, continue with the already instituted proceedings if the case relates to the pecuniary damage caused to the deceased person or non-pecuniary damage of the close relatives, i.e., successors, which they sustained due to the violation of human rights of the deceased person.³²²⁶

Articles II.2 and VIII.1 of Annex 6 do not impose limitations on the applicants insofar as citizenship is concerned so that citizenship of Bosnia and Herzegovina is not a necessary requirement to initiate proceedings.³²²⁷ It turned out that in the cases relating to missing persons and unlawful deprivation of liberty, a wide scope of authorisations to file applications with the Chamber was necessary for the effective protection of human rights and freedoms, since the victims themselves were not capable or were not capable any more to personally address the Human Rights Chamber.³²²⁸

With the exception of the case of “inter-Entities” proceedings which the FBiH instituted against the Republika Srpska,³²²⁹ all applications were filed by the victims of human rights violations, i.e., their close relatives, or legal entities such as religious communities, communities of interest or news agencies.³²³⁰

Unlike procedural law, which applies to the ordinary judiciary, an application filed by a person with no legal procedural capacity may be declared admissible if that person is factually capable of understanding his/her situation, or if the nature of allegations renders the application indispensably admissible.³²³¹