REPORT ON THE STATUS OF HUMAN RIGHTS
IN BOSNIA AND HERZEGOVINA

(Analysis for the period January – December 2007)

INTRODUCTION

Delays in implementation of reforms and repeated complication of political relations on ethnic grounds have been the main features of the previous year.  In spite of this, Bosnia and Herzegovina initialled the Stabilization and Association Agreement with the European Union, thereby leaving possibilities open for speeding up of reform processes, including those in the field of rule of law and respect for human rights and freedoms, and consequently rapprochement with the EU.

That the year 2007 was in fact lost, from the aspect of implementation of reforms and necessary changes, is best illustrated by the fact that only 27 pieces of legislation, of the 135 planned at the state level, were in fact adopted. In the field of human rights, the relevant Ministry forwarded to the parliament only 13 per cent of the planned laws. It should also be added that Bosnia and Herzegovina did not manage to fulfil two thirds of the requirements set by the European Union in priorities and conditions of the European Partnership, which means that the list of unfulfilled requirements has grown to 72 items. Finally, Bosnia and Herzegovina occupies the 84th place in the world by Transparency International’s perception of corruption measurements, which illustrates further the state of the country from the aspect of the rule of law.

It should be noted that the reform of the institution of Ombudsman of Bosnia and Herzegovina has not been completed last year either, although the final deadline for this was 31 December 2006. The continuation of agony, with the only institution for protection of human rights at the level of Bosnia and Herzegovina remaining solely on paper, is a reflection of the actual lack of interest of the authorities in protection of human rights and establishing of appropriate mechanisms and institutions for their protection. This means that human rights are practically left to the non-governmental sector, which is not able to respond to all challenges in this field under current circumstances.

The situation in the sphere of human rights is additionally burdened by the fact that the main players of the crimes committed in Bosnia and Herzegovina – Radovan Karadzic and Ratko Mladic, have not yet been brought to justice, and the fact that efforts on establishing of truth and reconciliation have been delayed.

It should also be stressed that finding and identification of persons considered missing has been delayed too, which represents, among other things, violations of human rights of members of their families.

Frequent attacks of the Republika Srpska Prime Minister Milorad Dodik and his party's officials against representatives of the civil society and a number of journalists and independent media have been registered over the previous year. The Transparency International and its Executive Director Boris Divjak have been in the very focus of these attacks. These actions deserve the strongest condemnation by democratic public, as they represent a dangerous and serious threat against fundamental values of democracy and open society. The authoritarian attitude towards and pressures against independent organizations and media seriously endanger not only the freedom of expression, but also threaten fundamental values of the society.

RETURN OF REFUGEES AND DISPLACED PERSONS

The total of 3,743 returnees' households celebrated the 13th post war anniversary without electricity, whereas according to official records 2,700 families are still living in collective centres at 106 locations in 43 municipalities. Unofficially, at least 1,500 people are placed in another hundred or so locations. These persons have no status, nor can they relate to any particular institution in charge of their care. These are mainly elderly and sick persons who do not wish to return to their pre-war homes, which is why they lost their refugee or displaced person status, while they have not secured housing facilities in their new places of residence.  Almost 45,000 requests for restoration of housing units were transferred into 2008, i.e. there are more than 140,000 people who expressed a desire to return and are still waiting for help.  

Based on the data that more than 5,000 housing units were reconstructed in 2007, it is easy to calculate that under the current pace of reconstruction, it would take eight years for meeting of all received requests. And new requests are submitted every day.

At present, 6,200 families, i.e., 18,000 displaced persons, are waiting for reconstruction of pre-war houses and flats in the municipalities of Srebrenica, Bratunac, Zvornik, Vlasenica, Milići, and the local community of Žepa.

Negligible results were recorded in 2007 with regard to the implementation of Annex VII of the Dayton Peace Accord, particularly concerning the so-called minority returns, and the so-called sustainable returns. We base our assessments on monitoring, immediate visits to returnees' municipalities, and on data provided by returnees' associations and numerous NGOs.

In 2007, the UNHCR registered around 6,000 returnees and stated that in the period from 1996 to the beginning of October 2007, the total of 446,215 refugees and 577,750 displaced persons in fact returned. The overall number of returnees is 1,023,965. This constitutes more than 45 per cent of 2.2 million of people registered as persons who had left their pre-war homes in the period 1991-1995.

The Refugees and Displaced Persons Commission of Bosnia and Herzegovina went a step further in December 2007, when it came forward with the information that conclusive with 2007 it recorded over 60 per cent of returns and reconstruction! Perhaps, but only if the statement by the president of the stated commission is related to the data that of 445,000 registered housing units for reconstruction, 260,000 were actually restored. But this fact cannot be linked to percentages of true returns. The authorities have never made distinction between returnees who only took repossession of their property and those who remained living in their property units. One of the primary goals in the implementation of Annex VII is restoration of socio-demographic structure of the BiH society, which had been impaired by the war.  Nothing has been done to that effect. BiH is today divided into almost ethnically pure territories, while consequences of war migrations have only deepened through long standing obstructions and administrative barriers of authorities at all levels. Reliable data on true returns cannot be obtained in the field, or figures about restored or repaired houses that their owners sold or exchanged.

Data supplied by the RS Ministry for Refugees and Displaced Persons indicated that 60,670 persons were granted the status of displaced persons. There are around 9,000 refugees. Most of these people came from the Republic of Croatia, but since they are BiH citizens, they cannot be granted refugee status under current laws. Namely, they cannot be declared as refugees in their own state. There are 5,757 families placed in alternative accommodation facilities, including collective rented facilities - some kind of collective centres, known for the worst living conditions. The RS Government is paying individual rents for 2,450 families. 

The BiH Federation Ministry for Displaced Persons and Refugees' Report states that 1,020,289 refugees and displaced persons returned to BiH since the signing of the Dayton Peace Agreement – 740,878 to the FBiH, 258,029 to the RS, and 21,382 persons to the Brčko District. According to information provided by the UNHCR and BiH diplomatic and consular offices abroad, there are 1,344,000 BiH citizens living all over the world. To an MP's inquiry on a number of BiH citizens living abroad, the Ministry of Foreign Affairs specified that 838,000 BiH citizens were living in European countries, 450,000 in the United States and Canada, 50,000 in Australia, 3,800 in Asia and 1,700 persons in Africa. 

On the other hand, the BiH Association of Refugees and Displaced Persons points out that a number of returnees to BiH is lesser by two thirds than figures quoted in the latest report by the FBiH Ministry for Refugees and Displaced Persons, and states that, for example, the said report records 750 families from Mostar as returnees, while their pre-war homes do not even exist any more. Figures on returnees quoted by ministries and other authorities and international organisations, they claim, are actually numbers of those who repossessed their pre-war property.

It is almost impossible to find a returnees' community in which a percentage of returns would be anywhere near the data supplied by the UNHCR and the ministries. In addition to previously mentioned Kozluk or Janje, the Livno Canton records more significant results in returns. The total of 16,000 persons of Serb ethnicity returned to this canton, or 36 per cent of the population according to the 1991 census. In terms of percentages, the best results were recorded in the municipalities of Kupres and Drvar. Approximately 5,400 persons returned to the area of Kupres, or 49 per cent of pre-war numbers, and 8,000 people to Drvar, or 48 per cent. The total of 3,500 persons or 41 per cent returned to Bosansko Grahovo, and 4,500 or 36 per cent to Glamoč. However, these results are somewhat devalued by the fact that less than 400 persons or 9 per cent of persons of Serb ethnicity returned to the Municipality of Livno, and 570 persons or only 2 per cent to the Municipality of Tomislavgrad.

In 1991, Muslims had formed 34.6 per cent of the population in Mostar, whereas today 42 per cent are Bosniacs. There were 33 per cent of Croats, and today there are 54 per cent. There were 18 per cent of Serbs, and only 2.2 per cent today. According to the Serb Civic Council, 43,218 persons returned to nine municipalities of the Sarajevo Canton since the beginning of the process, while only 80 in 2007. According to the 1991 census, there had been 43 per cent Bosniacs in the municipality of Ilidža, whereas there are 87.8 per cent today. There were 36.8 per cent of Serbs, and today only 4.7 per cent. There were 10 per cent of Croats, and today only 6 per cent. The situation is similar in the municipalities of Vogošća and Ilijaš.
 
According to the 1991 census, Bosniacs had constituted 63 per cent and Croats 26 per cent of the population in Hadžići, while there are 98.8 per cent of Bosniacs, and only 1.2 per cent of Others today. In the municipality of Stolac, there had been 43.3 per cent of Muslims, 20.9 per cent of Serbs and 33.12 per cent of Croats, today there are 78% of Croats, 20% of Bosniacs and only 2.0% of Serbs.

In 1991, approx. 16,000 Croats had lived in the municipality of Doboj. Today their number is reduced by tenfold, while 14,000 Bosniacs lived in Višegrad, while only eight percent of them returned. According to the 1991 census, there had been 3,890 Serbs in Kladanj. The total of 60 families have returned thus far, but only three to the town. More than 250 families of Croat ethnicity had lived in Novo Selo, municipality of Bosanski Šamac before the war. Today they are only 25. For example, around 3,000 housing units were reconstructed in the area of Derventa, while 8,500 units are required. The total of 186 Croat families had lived in the village of Liskovica, ten kilometres away from Mrkonjić Grad, whereas only eight houses have been renewed until today. Of 13,209 Bosniacs, less than 1,000 returned to Rogatica. There are only six children of school age among them and that sets a universal example of the returnee population age structure throughout BiH. Of 9,805 Croats who had lived in Modriča in 1991, only five percent returned.

One of conclusions of the First Congress of Refugees, Displaced Persons and Returnees held last year reads: “Official indicators supplied by the UNHCR and relevant ministries are not reliable in terms of assessment of the actual number of returnees to their pre-war homes, because results of return in the past frequently constituted return of property and other facts related to return, which did not necessarily result in actual return.”

 The above reflects the main difference in understanding of the Annex VII between the authorities and people who are most affected by this process - refugees and displaced persons. These people, like most non-governmental organisations, are interested in the number of people who truly returned to their pre-war homes.

A considerable number of citizens of Sarajevo, Mostar, Derventa, Zenica, Zavidovići, Modriča, Travnik, and the rural areas as well, are in possession of decisions on return of property, but they have no use of this property. It is indicative that in a large number of cases in towns, municipal authorities change spatial and development plans for attractive locations and thus prevent previous owners to enjoy their property. As a rule, this is done for the benefit of an ethnic group which constitutes the majority in that town. Minority returnees claim that they still receive unequal treatment when trying to obtain building permits or resolve infrastructure problems.

Our findings point to the fact that returnees, particularly minority ones are still being discriminated in employment, access to health care, education, exercising of the right to pension and other social rights. 

The entity, cantonal and municipal institutions of BiH have not observed the BiH Constitution, provisions of the European Convention on Human Rights and Fundamental Freedoms, and the BiH Constitutional Court’s decision on constitutional status of peoples, which has directly affected the process of return of refugees and displaced persons and their integration into pre-war communities. Several sources claim than less than one percent of returnees’ population succeeded in finding employment.

The administrative service of the city of Banja Luka employs 442 staff, of which 85 per cent are Serbs, and 15 per cent are members of other constitutional peoples and members of the category of Others; in municipal services in Doboj 165 Serbs are employed, 15 Bosniacs and four Croats. In order to meet the requirement of ethnic representation in line with the 1991 census, 61 Bosniacs and 19 Croats should be employed additionally, and 90 Serbs dismissed. In the municipalities of Sokolac, Pale, Višegrad, Foča, the number of employed Bosniacs and Croats can be counted by fingers. 

While Bosniacs and Croats are being discriminated in the Republika Srpska, the rights of Serb ethnic group are mostly endangered in the Federation of BiH. Data supplied by non-governmental organisations in the last year maintain that 893 Bosniacs were employed in the pre-war municipalities of Sarajevo, Vogošća, Centar, Novo Sarajevo, Ilijaš, Hadžići, Ilidža, Stari grad. This is ten times more than the overall number of Croats and Serbs employed in bodies of municipal administration. According to the mentioned data, 42 Croats and 30 Serbs are employed by these bodies. 

Despite the fact that the Article 2 of the Law on Civil Servants of the Federation of BiH was declared unconstitutional by the FBiH Constitutional Court, some municipalities have continued to apply it. The said article relates to proportionate representation of constitutional peoples and contains a provision that the constitutional principle of proportionate representation based on the 1991 census will not be applied in civil service of municipalities of which some parts, under the Dayton Peace Agreement and the High Representative’s decisions, were adjoined to another entity or municipality. For example, in Sarajevo’s municipality of Stari Grad, both the mayor and the chair of the municipal council are Bosniacs. A group of independent councillors in the Municipal Council warned against this disregard for constitutional principles, but the head of the municipality rejected the allegations that this constituted a grave violation of the equality of constitutional peoples.
 
According to official data provided by the Tuzla Canton Assembly, 28 people are employed in its administration: 25 Bosniacs, two Croats and one Serb.

Of 47 employees in the Federation Employment Bureau, 39 are Bosniacs, four Serbs and three Croats, In the period from 2001 to 2006, 89 per cent of Bosniacs, 3 per cent of Croats and 2.7 per cent of Serbs got employment through mediation of the Sarajevo Canton Employment Service.

There are municipalities in Bosnia and Herzegovina where not even a single member of minority group is employed by public administration bodies, institutions and companies. The total of 6,000 families have returned to Bosanski Brod. None of the returnees are employed, and less than 10 per cent managed to exercise the right to health care. 

Almost as a rule, the Law on Labour and the Law on Local Self-Government have not been applied. Returnees, whose employment status was abruptly and illegally terminated during the war, with very few exceptions, have never managed to restore any rights, including the right to their workplace. Their rights in the process of privatisation have also been reduced, since privatisation was sometimes completed prior to their actual return.

Grave economic circumstances, shortage of work and totally delayed programmes of the so-called sustainable return have brought most of returnees to the very edge of existence and pushed for a new wave of migration. Lack of unified pension and health care funds, inability to be educated in one’s own mother tongue still constitute serious impediments for the implementation of Annex VII.

The education system in BiH is still partitioned to a great extent, and mostly to the liking of the majority population in a particular territorial part of the country. Educational needs of returnees in contrast to majority communities are mostly marginalized and disregarded. For example, in a municipal school in Potočari, although 80 per cent of students are Bosniacs, their classes are based on the RS curricula in the Serbian language.

Rather aggressive addresses by political leaders of the ruling parties in 2007 once again reaffirmed the formula under which homogenisation and territorialisation of nations are the only recipes for security and survival. This has greatly affected and impeded the process of return.

Due to poor results, and in particular due to huge administration, a revision of the Strategy for the Implementation of the Annex VII was announced. We expect that the strategy will be adopted by February 2008.

In September, the High Representative Miroslav Lajčak commented on the work of the state minister for human rights and refugees, by saying that the minister in charge of returns is affiliated with a party that advocates return, but has failed to organise a single conference on return in the last year, even though he is being paid for that.


STATE OF AFFAIRS IN THE JUDICIARY

In the past years numerous reforms were conducted in the area of justice aiming at increasing its efficiency and achieving greater independence. Thus, civil procedure codes and criminal legislation were reformed within that framework. Judges and prosecutors were appointed by a newly established High Judicial and Prosecutorial Council. Judges’ and prosecutors’ salaries were increased as a measure to ensure their independence. The Court and Prosecutor's Office were established at the state level.

The existence of four legal systems in Bosnia and Herzegovina, one at the BiH level, two at the entities' level, and one in the Brčko District, imply four judicial systems as well. In addition to this, the institution of the High Representative is a specific features in itself, because the High Representative is vested with practically limitless powers to make executive decisions, while not assuming responsibilities for the same, nor is there any legal remedy for such decisions. This also limits the rule of law, because the independence of judiciary is not guaranteed in relation to this international institution.

There are no legal regulations or direct mechanisms to avoid for influence of the executive or legislative government over judiciary. In addition to the High Representative, whose powers seriously bring into question judiciary's independence, the system of courts financing is also problematic. Municipal and cantonal courts in the Federation of BiH are financed from cantonal budgets and hence are dependant on the executive and legislative powers. This also affects equal access to justice for BiH citizens, as well as courts' efficiency since both factors depend on financial resources and willingness of the authorities to allocate funds for judiciary. 

In spite of conducted reforms, we have to note that the time from initiation of proceedings to arriving at a final and binding decision is too long; this is in direct contradiction to the Article 6 of the European Convention on Human Rights, which defines and guarantees to every citizen the right to a fair trial. Unreasonably long processes are partly a consequence of a huge backlog inherited by courts. Often judges use the same excuses when breaking deadlines for scheduling of proceedings.  Furthermore, time-consuming proceedings are often caused by an excessive referral of cases to first instance courts by district and cantonal courts in appellate procedures. Failure of judges to appear before the court well prepared for the case at hand, i.e. their introduction to elements of the case at hand at the trial is often a reason why some cases are being dragged through courts for unacceptably long time. It should be also noted here that some cases are being returned to lawyers due to the fact that briefs are not properly prepared. This is impermissible and unprofessional. Training of lawyers is considered to be one of the weakest links in the judicial reform. Courts do not act upon the law, even in instances when due to the nature of a dispute, such cases should be resolved through an emergency procedure, as in cases of trespassing, right to home, right to one's property, labour disputes, child allowance…

Failure to enforce final and binding court decisions constitutes, inter alia, a violation of the right to an effective legal remedy. Namely, there is no valid legal remedy available to an appellant against non-enforcement of a decision.
             
A multiple legal system instituted in the country is illustrated by the fact that five criminal codes are being applied: the Criminal Code of the former SFRY applied in the entities in some war crimes cases, a newly adopted BiH Criminal Code of 2003, and criminal codes of the RS and FBiH, and the Brčko District, adopted in the same year. Concerning war crimes trials, application of different laws causes the situation in which a person may be sentenced to up to 20 years of imprisonment if tried under the Criminal Code of the former Yugoslavia, and up to 40 years of imprisonment if tried under the BiH Criminal Code for the same crimes! Application of different laws and varied court practices are not acceptable from the point of state's commitment to treat all citizens equally.  Thus, the existing laws and practice need to be harmonised.
           
New laws on criminal procedure and other procedural laws are aimed at shortening of proceedings before courts and increase of court's efficiency. However, introduction of novelties as a combination of continental and Anglo-Saxon laws underlined the role of the defence lawyer on one hand, but ability of parties to engage able and implicitly expensive lawyers as well. This situation seriously brings into question the right to a fair trial since one can gather from practice that only those who can afford a good lawyer, may count on fair and just proceedings. Moreover, there is no available free of charge legal aid for the poor and socially vulnerable. Hence, a conclusion that justice is only reachable for the rich is not far from the truth.

Speaking about the judiciary in Bosnia and Herzegovina, one is struck by the fact that organised crime is almost not processed at all, despite the fact that the media is saturated with information related to this phenomenon. Prosecution seems not to react to this form of crime, thus undermining the reputation of the judiciary and citizens’ confidence in the judiciary system as a whole.

THE JURISIC CASE

The gap created by expiry of the Rome Rules of the Road was reflected most directly on the freedom of movement in the region in the case of a Bosnian citizen, Ilija Jurisic, who was arrested on 11 May 2007 at the Belgrade airport in the Republic of Serbia under suspicion that he had committed war crimes in Tuzla in 1992.

The Rules of the Road had stipulated that every indictment for war crimes committed on the territory of former Yugoslavia be examined by the Hague Tribunal, which was entrusted with deciding whether to keep the case under its jurisdiction or to delegate it to judiciaries of countries of the region. The intention was to prevent authorities of countries of the region to abuse pursuit of war crimes suspects for political purposes. This way, the case of “Tuzla Convoy”, in which the name of Ilija Jurisic was mentioned, was returned to the judiciary of Bosnia and Herzegovina after analysis by the Hague Tribunal, which determined the powers for judicial decision-making.

Unfortunately, the Prosecutor’s Office of Bosnia and Herzegovina has not done almost anything with this case since then. The order for investigation of the Prosecutor’s Office of Bosnia and Herzegovina followed three days after Jurisic’s arrest in Belgrade, which constituted delay of three and a half years since the time the case was returned to Bosnian judiciary.

From the analysis of the whole case, it became absolutely evident that Ilija Jurisic was deprived of the right to a fair and just procedure, that he is a double victim: of the inertia of Bosnian prosecution service and authorities, and of the ignorant attitude of Serbian judicial bodies regarding conventions regulating this issue. Documents show that parallel investigations in the case of “Tuzla Convoy” are currently being conducted both in Bosnia and Herzegovina and Serbia. This was surely contributed to by the lack of bilateral agreements between Serbia and Bosnia and Herzegovina.

Analysis has further shown that the International Convention on Transfer of Proceedings in Criminal Matters (Articles 30 and 31), signed both by Bosnia and Herzegovina and Serbia, has been violated.

The latest intervention of the Prosecutor’s Office of Bosnia and Herzegovina from 18 January 2008 also shows persistent refusal of judicial bodies of the Republic of Serbia to comply with provisions of the International Convention on Transfer of Proceedings in Criminal Matters. Namely, the Prosecutor’s Office of Bosnia and Herzegovina – the War Crimes Department sent a letter to the Belgrade District Court – the War Crimes Council, requesting transfer of the Jurisic case, claiming that the criminal procedure in Belgrade and the order for investigation against 11 persons, including Jurisic, demonstrate the plurality of criminal proceedings related to one and the same event.

It should be added that Serbian investigation bodies, without trying to reach suspects by referring to the agreement between Serbia and Bosnia and Herzegovina, issued international warrants for arrest, which has affected restrictions of the freedom of movement in region even more.

Launching of a consultative procedure in this case is necessary due to the principle ne bis in idem, which aims at preventing anyone being accused and put on trial more than once for one criminal act.

Considering the appeal of Ilija Jurisic’s lawyer, and a request of the Ministry of Justice of Bosnia and Herzegovina, the Supreme Court of Serbia abolished the decision of the Belgrade District Court rejecting request of the Ministry of Justice of Bosnia and Herzegovina for transfer of the Ilija Jurisic case. By returning the case to the first instance court for repeated ruling, the Supreme Court warned the Belgrade District Court to bear in mind the fact that the criminal act was committed on the territory of Bosnia and Herzegovina and that criminal procedure was launched for the same case in Bosnia and Herzegovina. Despite the fact that the District Court referred to the Article 538 of the Criminal Procedure Code of Serbia, the Supreme Court judged that this article refers to criminal acts committed on the territory of Serbia by aliens residing in other countries. The Belgrade District Court, however, totally ignored the recommendations of the Serbian Supreme Court. It is perfectly clear that this whole case has been politicised and that Serbian judicial bodies are violating their own regulations too.

That Bosnia and Herzegovina does not have established mechanisms for protection of its citizens in situations of their arrest abroad is confirmed by the fact that an official delegation of the Parliamentary Assembly of Bosnia and Herzegovina visited Ilija Jurisic in prison eight months after his arrest, and then met representatives of Serbian authorities.
 
Regardless of the fact that Ilija Jurisic is of poor medical condition, the Belgrade District Court continuously rejects the possibility of his release and defence from outside detention, despite the fact that the suspect expressed readiness to remain available to Serbian judicial bodies by accepting some kind of house arrest in his son’s apartment in Belgrade.

Analysis of the case documents also revealed that personal data of citizens of Bosnia and Herzegovina are not protected in line with international documents regulating this field. Namely, Jurisic’s data were delivered to Serbia from the CIPS base through institutions of Republika Srpska without knowledge of the state bodies of Bosnia and Herzegovina.

STATUS OF FOREIGNERS, ASYLUM SEEKERS AND CITIZENSHIP

The State Commission for revision of decisions on naturalisation of foreign citizens comprising eight members was established under the BiH Council of Ministers' decision of 16 February 2006. Of this number, six are local and three international representatives. The Commission’s mandate expires in mid- February.

During its two-year mandate, the Commission reviewed citizenships issued to persons of foreign origin outside the borders of the former Yugoslavia. The total of 1,244 cases were reviewed. The Commission decided to withdraw 661 citizenships acquired from 6 April 1992 to the end of 1995 by persons of Afro-Asian origin mostly.

In the spirit of the effective law, such persons are considered to be foreigners and are obliged to report to the Foreign Nationals Service within 15 days from the receipt of the pertinent decision, i.e. its publication in the BiH Official Gazette, in order to regulate their status. Thus far, 15 of them submitted claims, whereas a large number of these persons, who are in possession of CIPS documents, seem to be outside BiH.

According to information supplied by Dragan Mektić, the Head of the Service for Foreign Nationals, of 15 received claims, four were resolved positively, i.e., stay in the country was approved based on the marriage with BiH citizens. The same number of applications was rejected and appeals lodged against such decisions are being currently processed as administrative disputes. If these appeals are rejected, such persons may apply for asylum.
 
The Helsinki Committee for Human Rights in BiH have warned by means of public statements on several occasions that citizenship removal procedure requires responsible and very serious approach, particularly from the aspect of human rights. Competent authorities were requested to provide a legal framework to guarantee that decisions on removal of citizenship will be made based on international standards and in accord with principles of a fair  process, and to ensure procedural protection, including the right to appeal. Letters of this content were forwarded to the pertinent minister and a number of other civil servants involved in the process of revision of citizenships. For example, the Court of BiH accepted the appeal by Kamel Ben Karraya^[1]  who was stripped of his BiH citizenship by the State Commission for revision of decisions on naturalisation of foreign nationals. The work of the State Commission is well depicted by the position taken in the mentioned court decision that the disputed Commission’s decision is based on --- “erroneously ascertained facts” and on “flawed application of substantive law “

The Helsinki Committee also requested from the BiH authorities not to deport, extradite or in other way transfer persons stripped of citizenship to any country where such persons may be exposed to a risk of violation of their human rights, including death sentence, torture or inhumane or degrading treatment and punishment. That would constitute a violation of the Article 3 of the European Convention and it would lead to direct responsibility of the country carrying out such deportation.

Only one person was deported in 2007, the Algerian national Matau Mimun. The public have been informed through the media that a large number of citizens who were stripped of citizenship are soon to be deported.

As to cases of naturalisation processed or finalised by the State Court of BiH, it is rather typical that appeals are mostly filed by foreigners of Afro-Asian origin (only three persons out of 40 naturalisation cases are not of the said origin). Some of them addressed the Helsinki Committee for Human Rights in BiH and requested protection of their rights.

The Court of BiH has received the total of 40 cases of naturalisation by the end of 2007. In 2006, six cases were registered with this court and 34 cases in 2007. Four cases were resolved in 2006, and three cases of naturalisation in 2007 - the total of seven.

Of seven cases resolved thus far, appeals were granted in two cases and referred back to a decision making body of the administrative act for re-examination, in five cases appeals were rejected i.e., the decisions became final.

It is important to note that once the Court of BiH makes a decision, a rejected asylum seeker has an opportunity to address the Constitutional Court if deemed that his rights arising from the European Convention on Human Rights and Fundamental Rights have been violated.  By virtue of a temporary measure, the Constitutional Court may suspend the actual deportation.

All requests for a temporary measure have been rejected thus far.

The question is raised whether addressing of the Constitutional Court is actually an effective legal remedy; namely, would it be more efficient to address the European Court for Human Rights in Strasbourg based on the Rule 39.^[2][3]

A group of citizens originating from Kosovo addressed the Helsinki Committee for Human Rights Legal Aid Office and requested protection of their rights due to inability to regulate their status - to obtain residence permits to stay in BiH, and inability to register their purchased property in land registers, which would help them meet required conditions and be granted residence permits for BiH.
 
Upon arrival to Bosnia and Herzegovina, after the eruption of armed conflict in Kosovo in 1998/99, most of them were granted a status of temporary shelter. Of the overall number of 3,055 registered persons, including those who were placed in camps, some 2,000 of them purchased houses and flats in BiH in the meantime. However, only fifty percent of them managed to regulate their ownership rights or be granted citizenship. In the absence of adequate legal regulations, they could only do it, to quote one of the applicants who requested protection of his rights with the Legal Aid Office of the Helsinki Committee, Bulja Ferid, “through some connections”.

The remaining 1,000 persons who purchased property do not see a way out of the present situation. The Helsinki Committee has continually monitored the process of status resolution of this group of applicants and, in its annual report for 2006, and in reports of previous years, expressed concern with the years’ long inactivity in taking measures on resolution of the status of this group. Members of the Committee held a number of meetings with competent ministries on this subject, and discussed the difficult situation of these persons kept in inadequate camps.
 
Even after nine years, it appears that the state does not have a solution for persons from Kosovo who were granted temporary shelter until 30 September 2007. The BiH Council of Ministers should use its powers to urgently pass a decision on regulation of the status of temporarily received persons. Otherwise, a large group of people will be faced with deportation.

In the course of processing of cases, the Legal Aid Office grouped persons with unresolved status into two categories:

The first category constitutes persons accommodated in camps and mostly of Roma nationality. They are also asylum seekers. The second category comprises persons who have already integrated into the community to a certain extent. These persons enjoy private accommodation - upon arrival to BiH most of these persons purchased flats or houses, they have their own income (personal pension or similar), and actually these persons never exercised their rights arising from the status of persons with temporary shelter. Thus, the state did not incur any cost for the stay of these persons. However, the court does not allow these persons to register their property in land books, which is in contradiction with the Law on Land Registries and Art. 1 of Protocol I to the European Convention.

It is also typical for some persons from the second category, around 1,000 of them, that they declare themselves as Bosniaks, that currently they regulate their status by the so-called white cards, and that they actually wish to have dual citizenship. They do not wish that their status be resolved as the status of foreigners or asylum seekers.

It is common for both categories that, as persons with temporary shelter, mostly placed in camps, they have been driven to the situation of possible deportation after expiry of the deadline of 30 September 2007.

We have repeatedly pointed to the fact that these groups of citizens are in a discriminatory situation. Under international standards, the status of persons in under temporary reception is limited to three years. Unfortunately, even after nine years, the problem of these people has not been resolved. The state does not have legal solutions and hence their status is humiliating.

On 1 December 2005, the BiH Ministry of Security announced a possibility of change in the status of these persons, in particular persons under temporary reception placed in camps, mostly Roma persons, into asylum seekers. The procedure is still under way, and their applications reviewed as asylum requests. However, not a single asylum seeker has received a positive answer until the present day. Other measures to resolve the status of these persons were not undertaken at all by other competent ministries.

It would be necessary for the Council of Ministers to make an urgent decision, within the scope of its powers, on the status of persons in temporary shelter care after 30 September 2007, either by extension or in some other way.

An overall number of 145 asylum requests for 568 persons were made in 2007. Not a single application was accepted, 48 were rejected, and procedures in 21 cases were stopped because asylum seekers did not show up for registration or an interview, while proceedings are under way in 97 cases. It is incredible that the state of Bosnia and Herzegovina has not allowed a single asylum request ever since the time of acquisition of its independence.

All asylum seekers are placed in the camps Salakovac and Rakovica. We have to note that asylum seekers were transferred from the camp Petrovac to the other two camps in order to reduce costs.  At present, the camp Rakovica is designated for asylum seekers exclusively and 175 persons are accommodated there. The construction of an asylum centre should begin towards the end of 2008.

Persons with recognised refugee status until 2008 are placed in Salakovac. This is the total of 250 persons. The total of 61 per cent of these persons declared themselves as Bosniacs, 21 per cent are Roma, 7 per cent ethnic Albanians and others. They all originate from Kosovo.

The Ministry for Human Rights and Refugees has not issued decisions on recognised rights to this group of recognised refugees.  Thus, these persons are being deprived of their right to legal remedy, which is in contradiction with the EU directive. This issue needs to be resolved urgently by new legislative proposals still waiting to be adopted by the Parliament.

An initiative was launched by the state to allocate some funds to stimulate voluntary return of such persons. However, their security is not being taken into consideration. For example, Roma persons who helped Serbs would most certainly be exposed to danger if forcibly returned to Kosovo.

EDUCATION

The system of education in BiH is divided to a great extent. Children of school age are separated on ethnic grounds, and frequently on the grounds of political affiliation of their parents as well.  Thus, open segregation and apartheid are present in practice.

In the post-war period, Bosnia and Herzegovina embarked on the process of reform of the educational system based on the document “A message to citizens of BiH - Reform of Education in BiH”, signed by all ministers of education at the Peace Implementation Council’s meeting in Brussels in 2002. This document was accepted and signed by all educational authorities in Bosnia and Herzegovina. The goal of educational reform was to ensure good quality education for every child in integrated, multicultural schools at all levels, free from political, religious, cultural and other prejudices and discrimination, while maintaining respect for the rights of all children.

The Framework Law on Elementary and Secondary Education in Bosnia and Herzegovina of 2003 regulates principles of pre-school, elementary and secondary education and up-bringing, as well as adult education and establishment and functioning of educational institutions for additional classes for children of BiH nationals abroad. The said law, inter alia, regulates general educational goals as universal values of a democratic society, derived from generally accepted values based on specifics of national, historical, cultural and religious traditions of peoples and national minorities living in BiH. The first objective in education is to “enable access to knowledge as the basis for understanding oneself, others and the world in which children live, and the final objective being to join European integration process”.

All laws in the entities, cantons and the Brčko District, as well as other regulations in the area of education, should have been harmonised with provisions of the mentioned law within three months, which would complete the legal framework. However, harmonisation of the existing and drafting of new by-laws in the area of education to facilitate faster implementation of principles and objectives, have not been completed yet.

The Framework Law on Elementary and Secondary Education foresees a mechanism for setting up of an Agency for pre-school, elementary and secondary education in BiH. This agency would be tasked with coordination, follow up and research processes in the BiH educational system. This mechanism should have been regulated under a separate law on the agency. Pre-school education and professional development and training are envisaged as separate legal areas too, but pertinent regulations have not been adopted yet. The Law on Higher Education was adopted as late as 2007.

Returnees’ children in pre-war places of residence should have been given all assistance for enrolment, attendance and continuation of education. The Office of the High Representative together with the BiH authorities adopted a temporary agreement on meeting of special needs and rights of children-returnees (2002), therein defining six key objectives to ensure sustainable return to former places of residence.

One of the objectives was to “enable children-returnees to attend classes of the so-called “national group of teaching subjects” according to curricula and syllabi of their choice, whereas other teaching subjects will be taught according to local curricula”.

In reality, the stated objective was differently interpreted and applied by politicians and the BiH authorities. Consequently, this led to the situation that we have fifty four schools called “two schools under the same roof”. Namely, under this practice children are separated in schools based on ethnic and religious affiliation or belonging to one of the constituent peoples.  

The entire curricula and syllabi are taught in Croatian for students of Croat ethnicity, and in the Bosnian language for students of Bosniac ethnicity in the mentioned 54 schools. The same is true for teachers. In schools organised in this way, students and teachers do not have any physical contact, they use separate entrance to school facilities, classes are held in different shifts, divided between different floors, etc,

Due to this situation, children are prevented from learning about “the other and different”, which is in direct opposition to general educational goals set forth under the Law on Elementary and Secondary Education, and all international documents pertaining to this area.

Politicians justify this practice of conducting classes based on two school curricula and syllabi by claiming to wish to preserve “the rights to one’s own culture and language”.

The MP’s caucus of Croat people submitted an application with the BiH Federation Constitutional Court requesting that “protection of vital national interests be guaranteed in education exclusively by curricula and syllabi in the Croatian language”.

The BiH Federation Constitutional Court determined that “disputed provisions of the Law do not bring any of constituent peoples into an unequal position, nor do they lead to assimilation or outvoting of individual peoples”. Any other solution, for example, a possibility for classes to be conducted exclusively in the Croatian, Bosnian, or Serb languages, would constitute a violation of the constitutional principle on equality of all official languages in the BiH Federation and lead to violation of vital interests of constituent peoples, i.e. of those peoples whose languages would not be used for teaching classes”.

Surely schools or classes in which students are divided on ethnic grounds are not a guarantee for development of universal democratic values. But consistent curricula and scientific programs, adequate textbooks and competent teachers, adequate teaching tools and training of all actors in the education process, would be the best prerequisites for creation of a society based on the rule of law and respect for human rights.
 
It should be noted that some progress has been made in the educational system through adequate co-ordination between 14 ministers of education. Thus, discriminatory symbols in schools and disturbing school names were removed. However, such efforts should be continued throughout the entire country and in all schools, as to fully observe this criterion. Also, steps were taken to provide common history and geography textbooks for students, and to formulate a single curriculum and syllabus core, as well as to define the rights of teachers and students to use their own language. All adopted legal projects, action plans and programs, as well as responsibilities of Bosnia and Herzegovina in terms of international standards in the area of education, have yielded only partial results in practice.

Therefore, all actors in the educational process, as well as professional and academic communities, have to invest greater efforts and resolve problems related to a fundamental educational reform by a coordinating action. Primarily the practice of “two schools under the same roof” should be abandoned as to ensure that children are not isolated from others and different ones. In this way, conditions will be created for better understanding and communication with their neighbours, as well as other citizens of a united Europe that we aspire to.

WOMEN'S RIGHTS

Women in Bosnia and Herzegovina continue to be exposed to various forms of discrimination and facing many obstacles in exercising of their rights.

Although they constitute over a half of the world’s population, women have not been represented in such percentages in processes of making of political decisions, and political and economic reforms. The government at the state level in Bosnia and Herzegovina does not have a single female minister, while only two women hold positions of deputy ministers. Of the 42 deputies to the House of Representatives of the BiH Parliamentary Assembly, six are women. Of the 15 members of the High Judicial and Prosecutorial Council, six are women, while the Court of Bosnia and Herzegovina employs nine women among 23 judges. There is not a single woman holding a high level position in the police, military structures and the state border service.[4]

Women have not had equal opportunities for full participation in many other spheres of social and economic life either. Among the total number of employed persons, 38 per cent are women. Mobbing at workplace, sexual harassment, psychological harassment, unequal pay, all of these represent forms of discrimination and marginalization of women in all working environments – from administration bodies, public institutions, public companies, to private firms.

The following cases can serve illustrations:
A female person gets an offer from her employer to meet him for a coffee after working hours in order for them to get to know each other better and discuss possibilities for her professional advancement. As she turns down this offer, she is the first to be dismissed from work with justification that the company is undergoing bankruptcy procedure;
A female person has worked on most simple jobs in her company since 1992, and her female boss forces her to take sick leave after regular medical check-up. After she had brought her medical results, which were satisfactory, the boss resorts to other humiliating means to force this person to request retirement;
A female person has resigned due to harassment at work. She has addressed the labour inspection, which has not done anything. She filed a lawsuit with the competent cantonal court also. The court established that “there has been harassment, but that there is no means to punish the abuser, as he has not acted as an official in the legal sense of the word, i.e. he has not been appointed or elected, and his actions therefore do not constitute significant features of the said criminal act”. This woman ended up under psychiatric care.

Women’s access to work has been more difficult that men’s: 34.9 per cent of women are unemployed, while over 60 per cent are not covered with health insurance. The position of Roma women is particularly difficult – 90 per cent of them do not have any access to health care, social protection, employment. Women living in villages do not have a better status either.

There are no measures and plans for resolving of these problems, or programmes for employment of women, at the levels of the state, the entities or the Brcko District.

Particular problems of the Bosnian reality are trafficking of women with the aim of sexual exploitation, and domestic violence. As regards the trafficking in women, it is a fact that local female population, including underage girls, have been increasingly recruited through this criminal chain.

Non-governmental organizations in Bosnia and Herzegovina have established shelters for victims of violence, i.e. safe houses for victims of trafficking. These houses are located in Mostar, Bijeljina, Modrica, Banja Luka, Bihac, Sarajevo and Zenica. SOS phones for victims of violence have been set up too and are available 24 hours a day.

The SOS line in Sarajevo registered 822 calls in 2007, while 113 persons used the shelter accommodation: 41 women, 55 children, 14 young single girls, and two female foreign nationals with one child.

In Bihac, 98 persons found shelter in the safe house during the same period: 45 women and 45 children, eight underage girls – victims of trafficking, including two from Croatia. Two men had also sought help.

Six Bosnian citizens, victims of trafficking, and nine victims of domestic violence found shelter in the Mostar safe house.

The total of 92 women and 114 children, 18 without parental care, were accommodated in the Modrica safe house.

Four victims of trafficking in humans were registered over the past period in Bijeljina, including two underage girls from Bosnia and Herzegovina, and two foreign nationals (from Serbia and Ukraine).

This information[5] is only an illustration of the frequency of domestic violence and human trafficking in Bosnia and Herzegovina. It should, however, be taken into account that a considerable number of these cases remains unreported.

Domestic violence against women mostly remains inside the families. The causes of silence are the patriarchal tradition, fear of local denunciation, and stereotypes about the place and role of women in the society, as well as threats by the abuser or his family, etc.

A telling example is the case of a female person married to an alcoholic, who physically abuses her and her 18 months’ old daughter on daily basis. His parents and brother are threatening to take away her child if she addresses anyone for help or tells someone what is happening in that family, and that “she could disappear in the dark”.

Women’s human rights and gender equality do not represent, for political leaders and the authorities in Bosnia and Herzegovina, issues that should be seriously addressed from the aspect of meeting of international requirements and provisions of local constitutions.

Bosnia and Herzegovina, as a signatory of the UN Convention on Elimination of All Forms of Discrimination against Women, has received a series of recommendations and proposals for measures that should be undertaken.

The competent UN committee has expressed concern with, among other things, insufficient representation of women in processes of decision-making, and insufficient representation of women in executive-legislative bodies and administration bodies, public companies, and leadership of political parties, as well as with issues of employment, access to health care and other services.

The committee expressed concern with the issue of trafficking of women too, despite the fact that a number of legal and other measures have been taken in order to eradicate human trafficking.

Bosnia and Herzegovina has taken up the obligation of implementing the goals from the Millennium Declaration – a political document of the UN, which, among other things, advocates gender equality and strengthening of the position of women. According to this document, poverty reduction, more comprehensive education, health care improvement, fight against HIV/AIDS and other diseases, environment protection and improvement of global partnership for development largely depend on improvement of the status of women.

Protocol 12 to the European Convention for Protection of Human Rights and Fundamental Freedoms regulates prohibition of discrimination on grounds of sex, while the Recommendation (2003/3) on Balanced Representation of Women and Men in Political and Public Decision-Making, and the Resolution 176 (2004), which introduces the principles of gender equality at the local and regional levels, are anti-discrimination documents and fundaments of legislation of the European Union member states.

The Constitution of Bosnia and Herzegovina prohibits all forms of discrimination, including discrimination on grounds of sex. The Law on Gender Equality of Bosnia and Herzegovina, which defines the ways of protection from discrimination based on sex and provides a framework for equal opportunities for women and men, has been adopted, while the entities’ legislation (of the Federation of Bosnia and Herzegovina and Republika Srpska) on protection from domestic violence regulate, among other things, protection measures for victims of violence. Criminal legislation treats domestic violence as a criminal act, while the labour legislation prohibits discrimination too.

Institutional mechanisms have been set up for protection and promotion of gender equality and monitoring of equal treatment of women and men. At the state level, there are the Commission for Equality of the Parliamentary Assembly, the Gender Equality Agency of the Council of Ministers of Bosnia and Herzegovina, the State Coordinator for Fight against Trafficking in Humans and Illegal Migration. At the entity level and in local communities, there are coordination mechanisms for gender equality.

Evidently, these institutions have not been efficient enough so far in the areas of responsibility for which they had been established.


Based on review of the human rights situation, the Helsinki Committee for Human Rights hereby proposes to the BiH authorities the following 

RECOMMENDATIONS

To the BiH Federation Prime Minister, to undertake measures to harmonise the Law on the Rights of Ex-soldiers and Their Families and the Law on Civil Service in the BiH Federation with decisions of the BiH Federation Constitutional Court.

To the RS Prime Minister Milorad Dodik, to observe provisions of the RS Constitution which guarantee the right to freedom of expression, association and peaceful gathering. We hereby appeal to Prime Minister Dodik to stop pressuring and intimidating the non-governmental sector, independent media and journalists;

To the BiH Parliamentary Assembly, to complete the process of transformation of the ombudsmen institutions for BiH. It is necessary to ensure a democratic procedure in the process of ombudsmen selection, as a guarantee that competent, respectful and independent individuals with high moral integrity are selected for this position.

To the Ministry for Human Rights, Refugees and Asylum, to introduce concrete measure and time framework for their implementation as to enable return of all persons who wish to return, while demonstrating the respect for the right to choose a place of residence.

To the Directorate for European Integration, Council of Ministers and the BiH Parliamentary Assembly, to formulate a plan containing measures for the implementation of the part of the Copenhagen document pertaining to EU requirements for future members in the area of human rights.

We appeal to authorities at all levels to be more open towards actors of civil society and to enhance co-operation with non-governmental sector.



Br: 02A-02/2008
Sarajevo, December 2007

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