ii. “Natural restitution” and prevention

Legal remedies, the goal of which was to redress established violations of human rights and freedoms, if possible – even in the form of “natural restitution” – are numerous and distinct by their contents. Such measures were also partly preventive by nature, their goal being to remove possible threats of violations of human rights and freedoms. In a great many proceedings concerning the restoration of the pre-war possession of apartments and other real estate, the Chamber, for instance, declared as ineffective the retroactive quashing of contracts on the purchase and sale of real estate, or reversed adjournment of trials ordered by the executive authority.³⁷¹² Acts declaring apartments abandoned were quashed, and it was ordered that the housing premises be restored to the applicants,³⁷¹³ or the Chamber imposed an obligation for the courts to complete in an expedited manner the court proceedings that were under way at the time.³⁷¹⁴ However, the restoration of the possession over real estate is not compulsory, thus if due to the construction or similar measures on the respective real estate, which is the subject of restoration, the repossession appears inappropriate or impossible, there is a possibility of compensation to be effected in some other manner.³⁷¹⁵

The Chamber dismissed the requests of the applicants for the defendant to apologise over inhuman and degrading treatment or forced labour in a detention imposed unlawfully, thereby providing reasoning that the decisions of the Chamber are public and that, within the context of its respective mandate, they are a sufficient satisfaction.³⁷¹⁶ By the by, in cases concerning a violation of human rights and freedoms, which may be characterised as less serious, the Chamber held that establishing a violation solely makes for a sufficient satisfaction.³⁷¹⁷ In cases where a death sentence had been pronounced during wartime, which is contrary to the ECHR, the Chamber ordered that the execution not be carried out, and that the death penalty be abolished.³⁷¹⁸ In cases where a problem concerned the disappearance of persons, the Chamber ordered an extensive investigation to be carried out, which would make possible for all the facts related to the disappearance of a victim to be established in order for the perpetrators to be held responsible. In addition, if a victim were still alive, he/she had to be set free immediately, and if not alive, then the Chamber ordered that his/her remains be surrendered. Finally, the Chamber ordered that all information and results of the investigation as to the fate of a victim and the whereabouts thereof be made available to the relatives.³⁷¹⁹ While considering the decision on Srebrenica, the Chamber additionally developed its case law in relation to the missing persons, referring to the international case law related to the respective issue.³⁷²⁰ In addition to the obligation that the survivor-victims be set free, that an extensive investigation be carried out with the aim to collect information about the events from July 1995, and that the location where the remains of the victims were to be established and that those responsible be brought to justice,³⁷²¹ the Chamber ordered that its decision be published in the Official Gazette of the Republika Srpska in the local language.³⁷²² Instead of individual compensation to the relatives of the victims – which the Chamber used to order in previous cases related to missing persons – this time the Chamber decided to order the Republika Srpska to pay a collective compensation to all the relatives of the missing persons from Srebrenica. Speaking to the point, it concerned a monetary compensation which amounted in total to KM 4 million. This amount was to be paid in instalments to the Foundation for the Construction and Maintenance of the Memorial Centre in Potočari and the Cemetery for the Victims from Srebrenica.³⁷²³ By the Decision of the High Representative, the Foundation, as well as the Memorial Centre and the Cemetery had been established earlier. The legal remedy, which exhaustion was so ordered, was rather disputable for the Chamber, which resulted in a heated discussion among the judges. In paragraph 214 of this decision, the Chamber emphasised that, due to lack of time, it was unable to address the establishment of violations of the rights and freedoms of the victims. However, the subject of this decision of the Chamber were also violations of the rights of relatives referred to in Articles 3 and 8 of the ECHR, which occurred due to permanent uncertainty in relation to the fate of the victims; the result of a passive position of State bodies. Therefore there were requests for collective compensation to be paid to one or more organisations dealing with the establishment of the fate of victims, e.g., with identification of mortal remains of victims from mass graves. Additionally, indeed, such an order would have constituted a more direct help in redressing the established violations than the construction of a monument or cemetery worthy of the victims. On the other hand, one should not disregard the significance of such a memorial centre for the overall process of reconciliation, given that it is a concrete manifestation and a way to pay tribute to victims who had been wronged.

In the case where the right to life was violated by arbitrarily pronouncing an acquittal for a person charged with the criminal act of murder, the Chamber did not order for the criminal proceeding to be conducted anew, as that would be contrary to the principle of trust in the acquittal which was pronounced once, and the acquitted person must have the possibility, after a prolonged period of time, to be able to rely on the pronounced sentence. Otherwise, had the Chamber ordered that the criminal proceedings for involuntary manslaughter be conducted anew, the principle of legal validity would have been violated, thereby constituting an exception to the principle ne bis in idem (Article 4 of Additional Protocol No. 7 to the ECHR).³⁷²⁴ In the case where serious violations of the right to a fair trial under Article 6 paragraph 1 of the ECHR were established, the Chamber ordered that proceedings be conducted anew,³⁷²⁵ i.e., that all necessary steps be taken in order to make it possible for the applicant to renew the appellate proceedings if he/she so wished.³⁷²⁶ Exhaustion of such a legal remedy was ordered even in a case where the Chamber established that, due to the conduct of criminal proceedings anew, Article 6 paragraph 1 of the ECHR was violated.³⁷²⁷ In the case where a police officer abused a person while on duty (Article 3 of the ECHR), the Chamber ordered that an investigation be instituted against the perpetrator with the aim for the police officer, if necessary, to be criminally prosecuted.³⁷²⁸ The Chamber, also, ordered that the police officer be dismissed from service.³⁷²⁹ In the event that the deprivation of liberty had been unlawful, as the necessary opinion of the Prosecutor of the ICTY had not been obtained in a timely fashion, the subsequent submission of the consent of the prosecutor did not affect retroactively the unlawfulness of the detention. However, regardless of such a conclusion, the Chamber gave up the order for the payment of compensation.³⁷³⁰ Yet, if the request for an opinion of a prosecutor of the ICTY was not sent at all, then the deprivation of liberty would still be unlawful. In such a case the Chamber ordered that the person be released from custody immediately,³⁷³¹ i.e., if that had already taken place, to be paid pecuniary compensation.³⁷³²

In order to make possible the reconstruction of mosques destroyed during the war, the Chamber issued orders which differed on a case by case basis. Such was, for instance, the order to quash the regional plan of the municipality which was in collision with the reconstruction plans,³⁷³³ or the order to prevent construction of other facilities on the land at issue, that is to prevent removal of remnants of the facility (by third persons), or to issue a construction permit. Contrary to this, the Chamber did not want to impose a general prohibition of discrimination against the Muslim population in Banja Luka, for such a prohibition of discrimination, in the opinion of the Chamber, has already arisen from Annex 6.³⁷³⁴ In other cases the Chamber prohibited the defendant from exhuming corpses from a cemetery, or from quashing a decision on closing a cemetery, or the Chamber would order the defendant not to prevent any burials at the cemetery at issue in the future.³⁷³⁵

In the case of the secondary commercial school where the Chamber, due to the failure to recognise a diploma, established that the right to education was violated and ordered that the diploma be officially recognised. In that case the Chamber also established that a violation of goodwill occurred, i.e., of “a good reputation” of the mentioned secondary commercial school, which was committed by the State bodies through their press releases. As a result thereof, the Chamber ordered, i.e., obliged the Republika Srpska to publish the decision of the Chamber on the respective issue in the press in which its bodies had published their press releases earlier.³⁷³⁶ In Zahirović, the Chamber

ordered the Federation of BiH to re-employ the applicant, commensurate to his qualifications and with a treatment equal to that of other employees. In addition, the Chamber requested that his civil action be decided by an independent and impartial tribunal.³⁷³⁷ In the case of the Algerian Group, the Chamber requested from the Federation of BiH, and from BiH, to adopt in an expedited fashion a decision in the proceedings that had already been initiated, and it also ordered that the country, through diplomatic channels, plead for the respect of fundamental human rights and freedoms of the applicants who were transported to Guantanamo, and particularly to get in touch with them, to offer them assistance of consular services, and to undertake all possible steps in order to prevent the pronouncement and execution of a death penalty.³⁷³⁸