Human Rights Chamber

Precisely in the initial stage of work, the resistance of the State authorities in enforcing decisions of the highest judicial bodies was significant. In the first years, both the State and the Entities refused to cooperate with the Human Rights Chamber by preventing the conduct of the very proceedings, and by not always enforcing its decisions, i.e., when the decisions were contrary to State or Entity interests.³⁸⁴⁴ The Chamber would only receive replies to its requests for an official stance after renewed enquiries, if at all.³⁸⁴⁵ In some cases, the Chamber would have difficulties suppressing doubt that the contracting parties had falsified documents in order to prove that they were not responsible for some purported violation of obligations referred to in Annex 6.³⁸⁴⁶ In other cases, agents for the defendant failed to appear at oral hearings, or left the hearings, without giving a chance to either the Chamber or the appellant to cross examine them.³⁸⁴⁷ The delaying tactics also involve the case of a short- term “resignation” of the agent for the defendant. In the case of the Ferhadija

Mosque it happened no less than on two occasions.³⁸⁴⁸ In the same case, due to pressure by the Mayor of Banja Luka and one of the witnesses to the proceedings, no less than on two occasions the Chamber was prohibited from using a public place for a public hearing.³⁸⁴⁹ It even happened that a judge would fail to attend sessions of the Human Rights Chamber, in order to comply with some directive of the National Assembly of the Republika Srpska, which was rather symptomatic.³⁸⁵⁰ In another case there was an attempt to prevent a burial from taking place, which implied a violation of a provisional measure of the Human Rights Chamber, so that it was possible for the burial to take place only with the support of the IPTF.³⁸⁵¹ Given mass obstructions, the fact that the publication of decisions of the Chamber usually brought about disturbingly little interest from the contracting parties came as no surprise.³⁸⁵² The dismal result of the enforcement of decisions in the initial years of its work had seriously brought into question the effectiveness and credibility of the Chamber.³⁸⁵³ The Republika Srpska had particularly contributed to the failure of the Chamber in the first years of its operation. Despite the solid legal basis referred to in Annex 6, lack of significance of decisions in practice would soon bring about the dissolution of the institution. When it comes to the State, insufficient cooperation with the Chamber had been the result more of deficiencies in the organisation of the State, and deficiencies of financial and personnel-related matters within the competent bodies, and less the result of a boycott.

Only in 1999 did cooperation of the Chamber with the signatories to Annex 6 improve with respect to the proceedings, with the assistance of their agents, but not in relation to the implementation of the decisions of the Chamber.³⁸⁵⁴ In 2000 it was related, primarily, to the Federation of BiH,³⁸⁵⁵ whereas in the Report from 2001 the Chamber mentioned difficulties in the implementation of its decisions, primarily, in the Republika Srpska and at the State level. At the end of 2002 the signatories to Annex 6 fully complied with the orders of the Chamber in 95 out of 151 cases ordering certain activities; in 28 cases they partially complied with the orders, and in the remainder of 28 cases they did not whatsoever.³⁸⁵⁶ Statistics shows that on 31 December 2003, regarding 669 applications filed, the Chamber adopted 240 decisions on the merits, of which number in 212 cases the parties were ordered to undertake certain measures. In the remaining 28 decisions no violations whatsoever were found (18), or no orders were issued despite the established violations (10). Of 212 decisions containing one or more orders, the contracting parties referred to in Annex 6 implemented in full 117 (55%), and 38 partially (18%). The remaining 57 decisions (27%) have not been implemented up until the mentioned time.³⁸⁵⁷ Here, one should mention the decisions which are irrelevant for enforcement, which is more than 1,200 decisions on inadmissibility, and 1,000 strike out decisions³⁸⁵⁸ – as part of these 2,200 decisions 5,574 applications were solved. These figures do not reflect in percentage the share of applications wherein – had the Chamber decided on the merits – violations of Annex 6 would have been established, i.e., which would have been well-founded eventually. For, a significant number of decisions on striking out related to requests which were similar to requests that the Chamber had deliberated on earlier, wherein violations had been found. The reason why the Chamber had not deliberated on the merits in such cases at all was the fact that some of these cases had been partially or fully resolved as time passed without the involvement of the Chamber, whereby requests were withdrawn, or because the Chamber no longer deemed the decision on the merits relevant (cases of restitution of property); or because it concerned the cases where the operative part of the decision of the Chamber, as well as the order from some other decision, may have been applied to other applicants, so that the decision on the merits – according to the opinion of the Chamber – was simply not necessary (for instance, the Srebrenica cases).

The Chamber would usually order the parties to submit within a given time limit a report on what steps they have undertaken in order to implement the decisions of the Chamber. The applicants were also advised of their right, if necessary, to request an order for the undertaking of other measures. If the parties failed to submit their respective report within a given time limit, the Chamber would forward the case to the Office of the High Representative. The parties to the proceedings also informed the OHR on a regular basis of the current state of affairs. In addition, the Chamber also forwarded its decisions to the Secretary General of the Council of Europe, as well as to the OSCE.

Soon after the Chamber commenced operating, the OHR assumed responsibility to oversee the implementation of the decisions of the Chamber. That implied also the necessity to undertake measures in order to ensure compliance with the decisions of the Chamber. The implementation of the decisions was coordinated by the Office of the High Representative in cooperation with the responsible authorities and other international organisations. In cases where implementation was problematic, the High Representative would intervene directly. That implied the following: first it was examined whether the domestic legal regulations frustrated the implementation. If that was not the case, the OHR would request from the competent authorities to implement the decision directly. In cooperation with the national authorities and in coordination with the international actors in the field, necessary steps would be discussed. On the basis of the opinion of experts, if necessary, the OHR would officially request the implementation of a decision. If all these measures failed to yield a satisfactory result, the High Representative would also use the option of dismissing those who were politically responsible for the situation.³⁸⁵⁹

Thus, the OHR had a significant role in implementing provisional measures. In the Turčinović Case,³⁸⁶⁰ a violation of the provisional measures of the Human Rights Chamber was redressed through the intervention of the OHR.³⁸⁶¹ The OHR also amended the provisions of Article 3(a) of the Law on Cessation of the Application of the Law on Abandoned Apartments, when it comes to the so-called JNA cases, as it was established that they violated the human rights of applicants. In the same manner in some other cases, on the basis of the decisions of the Chamber, first and foremost in the area of property and occupancy rights, the OHR undertook legislative activities.³⁸⁶² Also the Mayor of Banja Luka was dismissed, among other things, for manifestly refusing to implement the decision of the Chamber in the case of the Ferhadija Mosque.³⁸⁶³ After enormous pressure by the OHR and thanks to the efforts of the IPTF, only in 2001 the bodies of the members of the Matanović family, which had gone missing in 1995, were found in a well and then buried.³⁸⁶⁴

The defendants would usually limit themselves to enforcing a particular decision of the Chamber, and avoided the consequent implementation of decisions in similar cases, so that injured persons would usually have to obtain individual decisions from the Chamber.³⁸⁶⁵ The implementation of decisions of the Chamber was deficient also in the areas requiring administrative or structural changes, for instance, in the process of privatisation or economic reform.³⁸⁶⁶

In the report for 1999, in accordance with the aforementioned, the Chamber established that in almost all the cases where the decisions of the Chamber were eventually implemented, intensive measures of the OHR were necessary.³⁸⁶⁷ Other international actors in the State, such as the IPTF and OSCE, also assisted in the practical implementation of the decisions of the Chamber in a similar manner. In 2002, attempting to connect and strengthen coordination of its activities (streamlining), the international community transferred the major part of responsibility for implementation of the decisions of the Chamber to the OSCE.³⁸⁶⁸

“By handing over the baton” to the Human Rights Commission within the BiH Constitutional Court, the policy of implementation of decisions somewhat changed. In 2004 the Commission focused on decisions on admissibility, thereby adopting only 47 decisions on the merits. In that period, the number of procedures establishing the reasons for which decisions were not implemented was lower. From 2005 to 2007³⁸⁶⁹ the Commission conducted the procedure establishing the state of affairs, or any other activities of the authorities under Annex 6, in connection with the enforcement of its decisions, solely upon request. In that period the Commission issued 24 rulings on a failure to implement decisions, although between January 2004 and December 2006 it decided on the merits of 1,962 filed requests.³⁸⁷⁰ A small number of the rulings on the failure to implement in comparison with the mentioned number of decisions on the merits should not be misleading or obscure the true statistics on implementation. That the number of unimplemented decisions is indeed much higher is also attested to by the evaluation of reports of the defendants under Article 64, paragraph 4 of the Rules of the Human Rights Commission within the BiH Constitutional Court (version from 2005), which was drafted at the initiative of the Constitutional Court in July 2007. While minor monetary amounts were paid out in all cases, the carrying out of natural restitution and reinstatement to work created huge problems. What is more, the fact that the European Court established on several occasions a violation of the right of access to court as a result of the failure to enforce decisions of the authorities under Annex 6,³⁸⁷¹ for which BiH was responsible, suggests that not all injured persons exercised their right to appeal with the Human Rights Commission within the BiH Constitutional Court over a failure to enforce decisions.

When looking at the period from 1996 to 2003, one can establish that the implementation of decisions of the authorities under Annex 6 was, in the main, carried out as a result of political pressure, and to avoid certain political consequences, and to a lesser degree as a result of conviction. Thereby it is necessary to emphasise that injured persons or voters, in general, seldom exerted such pressure. Such pressure was, mainly, exerted by the international community, which threatened reducing or cancelling financial assistance, or even with dismissing the persons responsible. Between 2004 and 2007 the Human Rights Commission within the BiH Constitutional Court found itself in situations that ranged from open obstruction to technical inability to implement decisions. Primarily, in cases concerning the establishment of truth (for instance about missing persons) or compensation of damage, the parties responsible oftentimes, in general, resisted the enforcement (refused or ignored) or, to say the least, essentially opposed the enforcement.³⁸⁷² There were cases of manifest non-compliance with orders, such as, for instance, in case CH/02/12468 et al., whereby the ordinary court, which was ordered to adopt a new decision, refused to do so and tried to advise the Commission that it had interpreted erroneously the regulations to be applied.³⁸⁷³ Even excessively lengthy proceedings would seldom be completed within the time limit ordered by the Human Rights Commission within the BiH Constitutional Court.³⁸⁷⁴ In other cases, due to the manner of the functioning of the budget system, the defendant was unable to pay the ordered damages.³⁸⁷⁵ In property- related issues, owing to the experiences of poor implementation of the Human Rights Chamber’s judgments, the Human Rights Commission within the BiH Constitutional Court started applying the practice of ordering the payment of damages in the amount of the market price value in the event of a failure to carry out the reinstatement within the given time limit.