Overview

If we for the moment disregard a friendly settlement of dispute,³⁶⁹³ which was almost insignificant in practice,³⁶⁹⁴ we may say that the Human Rights Chamber had several options: to separately decide on the admissibility of an application³⁶⁹⁵ and, where applicable, to decide on the merits or, at the same time, to decide on the admissibility and merits of an application. For the purpose of procedural efficiency, the Chamber commenced very soon deciding on both admissibility and merits in a single decision.³⁶⁹⁶ If the Chamber reached the phase of deciding on the merits, pursuant to Article XI.1(a), it was first deciding on whether the alleged victim managed to reasonably prove that the mentioned state of facts indicate that there was a violation of obligations from Annex 6. After that, the Chamber was determining whether there was a violation of obligations from the Agreement on Human Rights and who was to be held responsible. In the event that a violation was established, pursuant to Article XI.1(b) of Annex 6, the Chamber used to issue different orders to the respondent parties (the so-called remedies), which, according to both the type and effects, exceeded the scope of the phrase used by the European Court in Strasbourg – just satisfaction.³⁶⁹⁷ The Chamber associated these orders with an obligation of reporting. The respondent party was obliged to inform the Chamber, within a specified time-limit, about the measures taken and about the phase reached concerning the enforcement of the Chamber’s decision.³⁶⁹⁸ If the State authorities failed to enforce the judicial decision for a long period of time, the Chamber used to order the relevant party to undertake effective measures for enforcement.³⁶⁹⁹ The Chamber would also inform the OHR about the failure of the relevant party.³⁷⁰⁰ Only after adoption of its major decisions which, as per the expectations of the Chamber, were supposed to have a wide-spread effect and influence on other similar or identical cases, would the Chamber suspend proceedings dealing with similar cases as stipulated under Article VIII.3 of Annex 6 and, at some later point, resume its work on these cases if needed. In practice, the Chamber was not using the possibility of adopting a formal decision on suspension of proceedings and the cases which were predestined for something like that were usually, for efficiency purposes, suspended by the Chamber in the way that the Chamber was giving priority (temporarily) to other applications. Pursuant to Article VIII.3 of Annex 6, the Chamber may decide at any point in its proceedings to suspend consideration of, reject or strike out an application on the ground that (a) the applicant does not intend to pursue his application; (b) the matter has been resolved; or (c) for any other reason established by the Chamber, it is no longer justified to continue the examination of the application; provided that such a result is consistent with the objective of respect for human rights. Due to the rapid increase in its caseload, the Chamber commenced using that possibility more and more in 2002 and by the end of its mandate the Chamber had 1,000 decisions that were adopted in the above manner.³⁷⁰¹ The Chamber was frequently adopting strike out decisions in cases where the applicant withdraw his/her request or in the event of the applicant’s failure to respond to the communications from the Chamber (leading to a conclusion that the applicant did not intend to pursue the case). In numerous disputes arising from the resistance of the State authorities to return the pre-war apartments to refugees and displaced persons, the Chamber, over the years, had changed its judicial practice, keeping in mind the question of whether the applicant managed to repossess his/her apartment in the proceedings before the Chamber. At the beginning of its work, although the applicant succeeded in recovering possession of the property, the Chamber used to adopt decisions on the merits awarding redress to the applicants for delays in the proceedings of property repossession and for non- pecuniary damage.³⁷⁰² At some later point the Chamber turned to a different practice and in cases where the applicant succeeded in repossessing his/her property but still wanted compensation, the Chamber adopted the so-called strike out decisions.

What was relevant and decisive for this change in jurisprudence was the possibility for the Chamber to strike a balance between individual interests of applicants and the general interest, which was based on the Chamber’s authorities under Article VIII.2(e) of Annex 6 permitting the Chamber to determine its priorities. However, the Chamber admitted that in individual cases there could be unjust treatment of individual applicants. Anyway, the Chamber decided to dedicate more of its efforts to other numerous and different cases and thus it sacrificed the aforementioned in order to achieve that goal. The reason for this change was, among others, the fact that over the years the legislation dealing with this sphere was amended. Moreover, the State authorities were more and more frequently enforcing the CRPC decisions in which the pre-war property, i.e., the pre-war possessions of the applicants were being determined in an obligatory manner. The Chamber commenced dealing with aspects such as the bona fides or mala fides of applicants, the waiting time for repossession or other special situations of unjust treatment – such as the maltreatment of applicants, forcible evictions, life circumstances of an applicant until the moment of repossession of property or the proved effect of legal remedies in a certain place of living. In this case the Chamber had an opinion that this effect raises suspicion, particularly in situations where the repossession of property occurred after the intervention of the High Representative, OSCE, IPTF or UNHCR or some other international organisations. Finally, according to the standpoint of the Human Rights Chamber, the cooperation of certain State authorities was very important to the entire process of return. Furthermore, the Chamber considered that such actions are in accordance with the goal of protecting human rights. That is to say that not only a specific individual case should be taken into consideration, but also a general obligation of the Chamber to support the signatories to Annex 6 in their efforts to ensure the highest level of protection of human rights in accordance with international standards.³⁷⁰³

Pursuant to Article VIII, paragraphs 2 or 3 of Annex 6, it was possible to challenge the decisions on inadmissibility, rejection or dismissal of the applications under the very strict criteria of Article X.2 of Annex 6 in conjunction with the Rules of the Human Rights Chamber Nos. 63 and 64. Those decisions were being adopted by the judges sitting in plenary session. The judges, while taking into account the recommendation of the deciding panel, were first deciding on the admissibility of request for review (decision on request for review). If the request would be found to be admissible, the decision on review was adopted, which was relatively infrequent in practice.³⁷⁰⁴