Human Rights Chamber

The Parties to Annex 6 are obliged not only to provide adequate structures for the effective protection of human rights but also to provide adequate means to prevent and penalise the violations of rights. However, this obligation applies only if a violation occurred after 14 December 1995, or it continued after that date.³²⁹⁹ The Parties are obliged to ensure that the applicable laws are brought into line with the ECHR and to invalidate norms incompatible with the Convention before the entry into force of Annex 6.³³⁰⁰ In terms of time, the Human Rights Chamber is considered incompetent to take into consideration facts which took place before the entry into force of Annex 6, which means before 14 December 1995; they are not included in the scope of application of Annex 6 within the meaning of Article VIII.2(c) of Annex 6; they are ratione temporis outside the scope of Annex 6.³³⁰¹ Insofar as the proceedings terminated before 14 December 1995 are concerned, neither the Human Rights Chamber nor the Human Rights Commission can review the proceedings and their legal grounds according to the standards of Annex 6.

The exceptions to this rule are the cases of “constant and continuing violations”. Therefore, a case falls within the scope of application of Annex 6, and thus within the scope of ratione temporis competence of Human Rights Chamber, if the violation continued to exist after 14 December 1995.³³⁰² The facts relating to the events prior to the entry into force of Annex 6 may be relevant as background to the events after that date.³³⁰³ So, for example, the disappearance of a person falls within the scope of competence of the Human Rights Chamber if there is a justified assumption that the missing person was still alive or in prison after 14 December 1995.³³⁰⁴ The issue as to whether the state authorities deprived that person of liberty or released him/her before the entry into force of Annex 6 may be relevant and taken into consideration.³³⁰⁵ A continuing violation exists even if the whole proceedings were conducted and terminated before 14 December 1995 but a decision was delivered to the applicant only after that date, since the judgment in question came formally into force only on that date.³³⁰⁶

In cases where the decisions of dismissal were delivered during the war (and thus took effect) but the injured parties challenged them only after 14 December 1995, the Human Rights Chamber has temporal competence. However, such applications are manifestly ill-founded, since the applicants complain about the violation of the right to a fair trial where decisions on the merits were not taken (the civil right was not determined) but their lawsuits against dismissal were rejected as being barred by the statute of limitations.³³⁰⁷ However, the Human Rights Chamber is competent if a decision on the termination of a labour relationship had been taken before the entry into force of Annex 6 but it was served on the applicant after 14 December 1995, and only then took effect.³³⁰⁸ The cases where the continuation of violation also exists and which can be considered by the Human Rights Chamber are those where the applicants were not dismissed from service but they were laid off, and were not reinstated after the war, since the employer employed another person “suitable” in terms of ethnic affiliation; such cases are frequent.³³⁰⁹

In case of execution of a death penalty pronounced before the key date, the proceedings that amounted to the pronouncement of the death sentence are reviewed in terms of their compatibility with Annex 6, even if the judgment was rendered before the key date.³³¹⁰

The deprivation of other real rights at the moment in which the deprivation took place is considered as terminated and thus it does not constitute a continuing violation of the property.³³¹¹ However, a continuing violation of a property right can exist if the applicant complains not only about the deprivation of rights (before the key date) but also about the failure to receive damage compensation prescribed by law – for example, a suitable replacement apartment – and the failure to award compensation also extends to the period after the entry into force of Annex 6.³³¹²

The Human Rights Commission within the BiH Constitutional Court is ratione temporis incompetent to consider the applications which were filed after the expiry of the term of the Human Rights Chamber. The term of the Human Rights Chamber terminated on 31 December 2003. The legal successor of the Human Rights Chamber – the Human Rights Commission within the BiH Constitutional Court – operated from 1 January 2004 and it was not competent to receive new applications (Articles 1, 2 and 5 of the Agreement according to Article XIV of Annex 6 of the General Framework Agreement for Peace in Bosnia and Herzegovina).³³¹³ Such applications are not ratione temporis in accordance with the mandate under Annex 6.³³¹⁴