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Human Rights Co-ordination Centre
The Human Rights
Coordination Centre was tasked by the Human Rights Steering Board to draft an
assessment on the progress to date of Bosnia and Herzegovina towards meeting the
accession requirements identified by the Council of Europe in May 1999. In this
report the HRCC tracks progress on those requirements pertaining to Human
Rights. The report is intended to provide factual updates but does not intend to
provide an opinion on whether or when BiH should accede to the CoE.
Please note that the Council of Europe now distinguishes between the
legislation passed by the local authorities and the legislation imposed by the
Office of the High Representative, which was not the case in the assessment
papers issued before July 28, 2000.
Please contact HRCC if you would like copies of past reports. Please send
information/comments to fax number:387-33-283-501 to the attention of Eric
Fréjabue or Eleanor Gordon, or by e-mail to Eric.Frejabue@ohr.int,
or Eleanor.Gordon@ohr.int.
UNHCR has contributed to, reviewed, and approved sections directly relevant
to its mandate. The sections are noted by an asterix (*) in the text
The "¨" symbol in the text indicates issues where changes have
taken place since the last progress review.
-- In Perspective --
This section is intended to provide information on the latest developments
that relates to the human rights situation in BiH. The issues mentioned in this
part of the report are not part of the original list of
requirements set by the Council of Europe in May 1999.
-
Following the third general elections, the establishment of institutions
from the Canton to State level is underway, but proceeding at a slow and
unsatisfactory pace. While the governments in the Federation have not been
formed yet, the State Government was formed on February 22. The whole
electoral process froze the work of the Parliamentary Assemblies.
-
The Permanent Election Law is in the hand of a parliamentary working
group that had been formed to overcome the political differences and to
finalise the drafting of the law. It is expected that he draft law will be
presented before the State Parliament in April or June.
One of the concerns of the International Community relates to minority
return-related incidents. While the past months saw an increasing number
of minority returns, it is also noteworthy that violence against minorities
has also increased recently. In parts of BiH, there appear to be
'orchestrated' campaigns of violence and intimidation directed at returnees.
In the Eastern RS, the problem is the most acute with violent demonstrations
directed against evictions and returnee visits, attacks with explosives upon
returnees' property (leading to injury or, as was the case in Bratunac on the
14th of December, death) criminal
damage and arson, physical attacks, and threatsand intimidation of returnees.
The lack of response by local police, coupled with the lack of prosecution of
the alleged perpetrators, illuminates the lack of willingness or ability of
state organs to adequately deal with such incidents.
Efforts are now underway to establish "a regional taskforce on education"
with Croatia and the FRY in order to accelerate the adoption of European
standards and devise a common approach to education geared towards
reconciliation and peace building at school. This illustrates potential
openings that exist now that more co-operative officials sit in the
neighboring Croatia and FRY. More constructive co-operation between the three
countries is necessary in order to resolve burning issues, such as the return
of Serbs displaced in the RS to Croatia and repossession of property in the
Federation by Serbs currently living in FRY.
-- Highlights of the Reporting Period --
-
Negative change in assessment - the adoption of Immigration and Asylum
Law criteria was down graded from "satisfied" to "partially satisfied" as
the implementation of this legislation can occur to a very limited level only,
as necessary by-laws still need to be elaborated and adopted and instructions
at the State and Entity level issued, page 7.
On the education front, the four religious leaders met on February 19
and acknowledged the importance of the teaching of a new subject presently called "culture of
religions""
and expressed their
desire to give their input to what should be taught in this subject. They will
each nominate an educational expert who will forward their ideas and proposals
to the Office of the High Representative, which will co-ordinate them, page
16.
3. Human Rights Institutions
BiH
-
Commitment to adequate Funding of the Human Rights Chamber, Ombudsperson and Commission for Displaced Persons and Refugees
Not Satisfied. The Council of Ministers of BiH proposed in October 1999
(for the first time) that the funding levels for the Institutions established in
Annex 6 and 7 be raised from 200,000 to the level of 600.000 KM. The year 2000 budget provided for
400.000 KM per institution, which remains below 600.000 KM, deemed to be "adequate funding". Note that the latter sum is less than each
Institution pays for nationals' salaries at BiH salary levels.
By 3 March 2000, the State government had completed outstanding payments
towards the total funding committed for 1999 to the Human Rights Chamber, the
CRPC, and the BiH Ombudsman. The total amounts are still below KM 600,000 per
institution, but do at least fulfill the amount of 200.000 KM per institution,
which the state itself budgeted for 1999.
¨ To date, the three institutions have received
150.000 KM of the 400.000 KM required by the year 2000 budget.
The 2001 draft budget now provides for a projected amount of 100.000 KM each
for the CRPC and the Human Rights Chamber, while 400.000 KM is allocated for the
BiH Ombudsman. These amounts are unacceptably low, and do not meet the
"adequate" amount required.
1-As of May 1st,
2000, the BiH Human Rights Ombudsperson changed its name into the BiH Human
Rights Ombudsman. For the sake of consistency the name Ombudsperson has been
kept throughout the document for developments that have occurred until May
1st. After that date, the term Ombudsman is used.
BiH, FBiH and RS
Compliance with the decisions and reports of the Annex 6 Institutions is now
at 67%.
Compliance with Human Rights Chamber Decisions:
| |
Implemented |
Not implemented |
Other |
% |
|
Federation |
13 1 (89,7%) |
1 5 (10,3%) |
( 9) |
89% |
|
RS |
3 9
(58%) |
28 (42%) |
( 39) |
58 % |
|
Total |
170 (79,8%) |
43(20.2%) |
( 48) |
80 % |
Compliance with BiH Ombudsman decisions:
| |
Implemented |
Not implemented |
Other |
% |
|
Federation |
232 (66%) |
1 20 (34%) |
10 3 |
66 % |
|
RS |
46 (45,5%) |
55 (54,5%) |
6 8 |
46 % |
|
Total |
278 (61%) |
1 75 (39%) |
171 |
61 % |
| |
Implemented |
Not implemented |
Other |
% |
|
Overall |
448 |
218 |
219 |
6 7% |
Note that the term "Other" refers to cases in which (1) the deadline has not
yet expired, (2) cases in which all parties to the case deem the case "resolved"
although the order or recommendation of the Chamber / Ombudsman was not
implemented or (3) cases in which almost all of the requirements for compliance
have been implemented.
The Entities have not demonstrated an ability to provide any reliable
assurance that the many thousands of remaining property repossession cases (see
graphabove) can be resolved within a reasonable time, and certainly not within
the time limits established by law. BiH is therefore not currently in a position
to be able to prevent future violations of the Convention, which is
fundamental to the European Court of Human Rights system. Regarding this
criteria, BiH would be unable to satisfy this compliance requirement used by the
Committee of Ministers, as many thousands of cases involving "possessions"
(which comprise over 70% of the claims brought to the BiH Human Rights Ombudsman
and the Chamber) are not resolved. About twenty percent of applicants to
domestic housing bodies have been able to repossess their house or apartment.
Until this percentage increases significantly, under Human Rights Chamber /
Strasbourg jurisprudence, large numbers of admissible applications could
reach the European Court of Human Rights upon BiH accession under the
"continuing violation" principle.
BiH
Satisfied. The State (as opposed to the Entities) has been found to be in
violation of the European Convention on Human Rights and other international
conventions in very few instances, due to its limited competencies under the
Constitution of BiH. The State has implemented all orders and recommendations of
the Chamber and the BiH Ombudsman in which the deadline has expired.
FBiH and RS
Regarding implementation generally, , significant progress has been noted,
especially in the Federation. The Agents, who are undertaking much of the work,
were appointed in early 1999. It became clear in the year 2000 that the Agent of
the Federation was, in large part, able to comply with the orders of the Human
Rights Chamber, and was making progress in the implementation of the
recommendations of the BiH Ombudsman. However, the RS Government has not
demonstrated a similar ability. More work will be required in this respect in
the year 2001. Co-operation between the Agents and the Chamber is generally at a
good level, and has been supplemented by monthly meetings between the Agents,
OHR, OSCE and the BiH Ombudsman.
RS
Partially Satisfied. The RS is not meeting its obligations with regards
to compliance with Chamber decisions. The RS has not yet implemented all
orders issued by the Chamber in the June 11, 1999 Decision of Islamic
Community in BiH v. RS, nor has it implemented the Chamber's orders in the
case of Matanovic v. RS, which has been outstanding since 1997.
Broadly speaking, implementation has been achieved in most non-property
Ombudsperson cases, but only in a minority of cases involving property
repossession. In addition, there has been non-compliance in a case involving two
disappearances. Some improved implementation has been seen with respect to a
series of property cases in the RS city of Gradiska.
FBiH
Partially Satisfied. The Federation is moving towards complete compliance
with decisions of the Human Rights Chamber (currently over 90%), although often
with the assistance/involvement of OHR, OSCE and other international
organisations. As a result of OHR involvement in legislative amendments, the
Federation has complied with requirements in several death penalty cases. There
are only a few cases of non-compliance with decisions of the Ombudsperson,
including length of administrative proceedings, failure to deal with the 1997
"Liska Street Incident" (although a judicial investigation is now underway), and
ill-treatment by law enforcement officers. The issues of individual property and
changes to JNA property legislation would not have progressed without OHR
involvement. The Federation currently has a limited number of Human Rights
Chamber decisions to implement, but there remain many repossession cases filed
with the Ombudsperson of BiH in which there has not been
implementation.
FBiH and RS
Partially Satisfied. Restructuring of the human rights mechanisms is
currently under discussion with the Venice Commission, the OHR, the OSCE, the
relevant institutions, and State bodies. On 1 April 2000, the Venice Commission
adopted a plenary opinion on the future restructuring of the human rights
institutions. The report was made public on 16 June 2000. The OHR
has prepared draft agreements regarding the transfer provisions in Annexes 6 and
7 of the General Framework Agreements and is currently negotiating with the
three governments. OHR has also drafted an outline of a law regulating the
merger of the Human Rights Chamber and the Constitutional Court, and discussions
in this respect have recently begun, in consultation with the Venice Commission.
It is expected that more work will be done in this respect in the Spring of this
year.
FBiH
Partially Satisfied. On 28 July 1999, OHR, OSCE, and the Council of
Europe proposed a draft to the Federation Minister of Justice. On 28 July 2000,
the Parliament of the Federation of Bosnia and Herzegovina adopted the Law on
the Federation Ombudsmen. However, problematic amendments affecting the
independence of the institution were included. OHR and OSCE have proposed a
series of amendments, which were discussed with the Venice Comission and the
Ombudsmen at a meeting in Strasbourg on 12 January. Organisations will work with
the Federation government in order to ensure that these provisions are
implemented.
RS
Partially Satisfied . The Law
on the Ombudsman of the Republika Srpska prepared by the Venice Commission and other organisations,
which includes the establishment of the Ombudsmen as a multi-ethnic institution,
was adopted on February 8, 2000 and came into force on 17 February 2000. The Law
conforms to European standards and is in accordance with the Venice Commission
Draft Law. It is important to note that this law remains to be implemented.
Implementation will require action on the part of the RS authorities, in
particular the provision of substantive support of the RS Ombudsmen in the
budget for 2001, and will be closely monitored by OHR and OSCE. The three
Ombudsmen have been appointed on 30 April 2000. They are Mr Franjo Crnjac, Mr Darko Osmić and Ms Slavica
Slavnić. They have been
on study visits on three occasions, prepared their Rules of Procedure and
employed and advised its staff appropriately. The Office began its regular work
with applicants in November, 2000, and has established four field offices,
Bijelina, Foca, Prijedor and Doboj, as well as its headquarters in Banja
Luka.
4. Judicial System
The implementation of the recently adopted judicial service laws, which
provide for a non-political, merit-based, structure for the appointment and
dismissal of judges and prosecutors, has now begun in earnest in both entities.
Laws and regulations providing for a new budgetary and administrative mechanism
for courts and prosecution offices are also being suggested in order to prevent
the executive from unduly influencing judicial decision making through courts
and prosecution office budgets.
Draft entity laws providing for Judicial and Prosecutorial Training
Institutes have been prepared in both entities with the assistance of OHR and
CoE experts. The Federation law is now pending before the House of Peoples. An
Interim Inter Entity Co-ordinating Board for judicial and prosecutorial training
has assumed responsibility for the co-ordination of training initiatives in the
interim period. This Board met most recently in Sarajevo on December 20,
2000 .
Efforts continue at revising the Criminal Codes and Criminal Procedure Codes
in both entities. One of the most important goals of these reforms is to change
the structural relationships between courts, prosecutors and police, leading to
a clarification of their roles and greater independence for judges and
prosecutors.?In the RS, the Criminal Code entered into force on October 1,
2000 . Reform of the RS Criminal Procedure
Code is still in progress and ¨
the draft code is being
reassessed in the light of CoE comments and the need for a consistent approach
across the State and entity jurisdictions.
In the Federation, the second phase of criminal law reform (the first phase
was completed in 1998), aiming at further improving the Criminal Code and the
Code of Criminal Procedure, is under way, and the CoE has already provided
comments on some proposed amendments to the Criminal Code.
FBiH and RS
This much-needed reform provides for the establishment of special judicial
commissions/councils in the entities responsible for the appointment, discipline
and dismissal of judges and prosecutors. Under an 18 month period of
"extraordinary review", the councils and commissions will scrutinise all sitting
judges and prosecutors. Parallel to this, and after the 18 months is over, the
councils and commissions will be in charge of reviewing all new appointees for
judicial and prosecutorial positions and present the successful candidates to
the respective assemblies for appointment.
¨ The laws in both entities have
either been imposed, in the Federation, or adopted, in the RS. The
implementation of these laws is not part of the criteria originally set
by the Council of Europe but is nevertheless discussed as a key rule of law
element in this paper.
FBiH
The law was imposed by the High Representative. The draft Law on
Judicial and Prosecutorial Service was passed in February by the House of
Representatives and, after the House of Peoples failed to pass it, imposed by
the High Representative on May 17. The High Representative also amended the
draft law as passed by the House of Representatives in order to provide the
following: better Federal Commission monitoring of the work of the Cantonal
commissions; consideration of multi-ethnicity and gender balance within the
commissions and the judiciary; initial judicial and prosecutorial training;
improved salary structures; and procedural rules for the extraordinary period of
review under which all sitting prosecutors and judges are scrutinized. The
Federation Commissions for Judges and Prosecutors held their inaugural sessions
on 15 and 16 June 2000. The Federation Commissions also adopted provisional
Books of Rules. All cantonal judicial commissions have also been established and
have begun the process of extraordinary review and review of new appointments.
UNMIBH/JSAP supervised and supported this work. The new Independent Judicial
Commission assumed responsibility for this and other judicial reform tasks on
November 30.
The new law dramatically increases salaries for judges and prosecutors. After
some initial resistance, all cantons have accepted their obligation to pay the
higher salaries, and all but two have begun to do so.
RS
Satisfied. The Law on Courts and Judicial Service and the Law
on Public Prosecutor's Office were passed by the RSNA on April 24 and 25.
The RS High Judicial Council and High Prosecutorial Council have held their
inaugural sessions and are now engaged in the process of extraordinary and
regular review. Books of Rules providing detailed provisions for the
implementation of the new legislation have been prepared with the support of
JSAP and have been adopted by the High Judicial and Prosecutorial Councils. The
RS Government has begun paying the higher salaries required by the laws,
retroactive to July 2000. The International Community is monitoring the work of
the councils to ensure that the structures and principles provided for in this
legislation are properly implemented.
5. Constitutional Court
BiH
Unsatisfied. ¨ The
situation has improved but remains unsatisfactory. The sum of 1.516.430 KM
approved by the Assembly for 2001 covers the material expenses of the Court, but
still does not allow paying all the judges of the Constitutional Court salaries
as high as those in the Entities. Also, from the approved budget for 2000 the
sum of 54.000 KM was never transferred to the Court.
6. Compliance with the European Convention on Human Rights
Continued revision of legislation to ensure compliance with the
ECHR:
BiH
¨ Partially
Satisfied. The House of Peoples,
the second Chamber of the BiH Parliamentary Assembly, based on a draft
elaborated by OHR, CoE and UNHCR, adopted the Law on Immigration and
Asylum on December 3, 1999. The Law was published in the BiH Official
Gazette on 23 December 1999 and entered into force on December 31, 1999. The Law
establishes the legal framework for the admission and stay of aliens, as well as
the criteria and procedure for determining refugee status and granting asylum in
BiH.
However, implementation can occur to a very limited level only, as necessary
by-laws still need to be elaborated and adopted and instructions at the State
and Entity level issued. As the legislation represents a complete structural and
administrative reform, the elaboration of such by-laws is taking time. Moreover,
a number of legislative amendments will be required in other legislation.
Further, a number of bodies foreseen by the law must still be created and
funded. These include an Asylum Unit fully qualified in refugee law and capable
of undertaking refugee status determination within the Ministry for Human Rights
and Refugees and an Appeals Panel under the Council of Ministers. Entity-held
records regarding decisions on entry and stay of aliens made prior to the entry
into force of the law to the Ministry for Human Rights and Refugees must still
be transferred to the State Ministry, and Entity departments must be
strengthened in order to handle immigration related issues. OHCHR (Office of the
High Commissioner for Human Rights) and the Ministry for Human Rights and
Refugees have established a joint working group to address the drafting of the
by-laws. The entry into force of the by-laws is expected in the first half of
2001.
BiH, FBiH, and RS
Partially Satisfied. The draft
State level Law on Associations and Foundations has been finalised
by OHR and sent out to the Ministry of Civil Affairs and Communications. Two
proceeding meetings were held in September and October, when the draft was
discussed in the working group formed by the Ministry of Civil Affairs and
Communications and OHR. Based upon the working group comments, OHR has
incorporated certain changes in the draft and forwarded it to the Council of
Ministers, which should propose the draft to the State Parliament.
Concerning the draft Law on Associations and Foundations in
Republika Srpska (RS), the draft law passed the first reading without debate
in July 2000. The RS National Assembly (RSNA) incorporated a few minor changes
in the final version. The draft was sent to OHR for comments, which, in response
informed the RSNA that the Law was not in compliance with the BiH Constitution.
The corrected draft will be presented soon to the RSNA.
With respect to the Federation Law on Associations and
Foundations, OHR, OSCE, USAID and the ICNL have had several meetings with
the Federal Ministry of Justice and Ministry of Social Affairs, Refugees and
Displaces Persons in order to finalise the draft. The draft has been finalised
but the Ministry of Social Affairs, Refugees and Displaced Persons has been
reluctant to relinquish the Law on Humanitarian Organizations and
Humanitarian Activities. This Law is not in compliance with the European
Convention on Human Rights (ECHR) and international standards in this field.
Negotiations with the respective ministries will be necessary in order to have
only one law which will provide a single legislative framework for all NGOs
operating in the Federation and be in compliance with the ECHR and other
international standards.
RS and FBiH
of groups to examine compatibility of
legislation with ECHR, and regular consultation with OHR and CoE on
legislative initiatives
Partially Satisfied. The Ministry of
Justice of the Federation and the Ministry of Justice of Republika Srspka
established ECHR compatibility groups of five members each in 1998 (FBiH) and
1999 (RS) respectively. There is a coordinator in the Ministry of Foreign
Affairs. However, while some members of the groups have taken part in a study
visit to Hungary to discuss the compatibility procedure, the groups have not met
officially or started their work of drafting reports assessing the compatibility
of domestic legislation with the ECHR. The Council of Europe has therefore
recently decided to change the composition of the groups. There is consultation
with OHR and CoE on legislative initiatives, but this is predominantly initiated
by the international organisations rather than by government
ministries.
RS and FBiH
Unsatisfied. Legislation in
both Entities falls short of ensuring the right to conscientious objection and
alternatives to military service, both regarded as essential components of the
right to freedom of thought, conscience and religion (article 9, ECHR and
Recommendation No. R (87) 8, issued by the Council of Ministers of the Council
or Europe in 1987).
OHR and CoE initiated discussions regarding proposals for amending this
legislation in September 1999, but there has been no follow up from the relevant
entity authorities.
RS and FBiH
RS
Unsatisfied . The RS National Assembly passed amendments to the Law on
Internal Affairs in its session on 14 and 15 July, 1999. After a preliminary
review of the latest version of the Law, UNMIBH raised a number of concerns,
including inconsistencies with the Dayton-Paris Peace Accords and the European
Convention on Human Rights. UNMIBH proposed a full review of the Law and
requested the expertise of the CoE, which completed a review in early 2000. In
addition to the concerns raised previously, the CoE found that the Law lacked
specificity in many areas, and that the Law delegated a significant amount of
authority by overly deferring to non-legislative Books of Rules. The redraft of
the Law is now underway, incorporating the input of the CoE and being jointly
led by OHR and UNMIBH.
FBiH
Unsatisfied.The Federation Constitutional Court decision of March 25,
1998, removed a number of articles in the Federation Law on Internal
Affairs. The Court reasoned that the provisions in question
unconstitutionally granted powers to Cantonal Ministries that were exclusively
within the domain of Federal authorities. Additionally, the Court found that the
powers granted to the Federation Deputy Minister of Interior exceeded those
envisioned by the Federation Constitution. Although amendments to the Law have
been proposed, the Federation Parliament has failed to pass legislation that
would bring the Law into compliance with the Constitutional Court decision. The
voided articles have not had the force of law since September 1998.
OHR and UNMIBH are now in the process of reviewing the Law. The review
process will include consultations with CoE, as well as with local legal
experts.
BiH, FBiH, RS
Imposed by the High Representative and subsequently adopted by the
Parliament. The BiH Law on Citizenship was imposed by the High
Representative and entered into force January 1, 1998 on an interim basis,
pending adoption by the BiH Parliamentary Assembly. On July 27, 1999 the Law was
adopted by both Chambers of the BiH Parliamentary Assembly and was subsequently
published in the Official Gazette on August 26, 1999.
Outstanding. The Madrid PIC urges BiH to conclude, with the assistance of
the High Representative, bilateral agreements on dual citizenship with
neighboring countries as soon as possible, but no later than June 30,
1999. To date, no such agreements have been
concluded.
RS
Satisfied. Amendments to the Law on Citizenship, ensuring full
compliance of the RS Citizenship Law with the BiH Citizenship
Law, were published in the Official Gazette RS no. 17/2000 on 27 June and
entered into force on 5 July 2000. The RS Government committed itself to pass
the necessary regulations for the implementation of the Law. In particular, such
regulations will enable those former SFRY citizens, who under the Law are
entitled to BiH and RS citizenship, to apply for citizenship. As background
information, the RS Citizenship Law was passed by the RS National
Assembly in December 1999 and entered into force December 14, 1999.
In addition, the RS National Assembly passed the Law on Changes and
Amendments to the Law on Ministries, (published in RS Official Gazette, no.
15/2000). The amendments stipulate that citizenship and basic registration shall
be taken over by the Ministry of Administration and Local Self-Government.
FBiH
Not satisfied . The adoption of the FBiH Law on Citizenship has
been problematic. A working group comprised of representatives of OHR, UNHCR,
the FBiH Parliament and the Council of Europe agreed upon the draft Law in April
1998. All provisions of the Law were in compliance with the BiH Citizenship
Law. However, the FBiH Ministry of Interior subsequently, unilaterally, and
without the knowledge of OHR revised certain provisions of the draft Law
delegating the decision-making competence from the FBiH to the Cantonal level.
After OHR intervention the Ministry of Interior reverted to the previous draft
in compliance with the BiH Law and, in the spring of 2000, forwarded the draft
Law to the FBiH Parliament. The draft was then returned to the FBiH Ministry of
Interior to incorporate acceptable amendments given by delegates in the FBiH
Parliament. The FBiH Ministry of Interior completed that task and re-submitted
the draft to the FBiH Government on 18 September 2000.
Unfortunately, prior to the resubmission of the Law to the Parliament in
December of 2000, the Ministry of Justice inserted changes that are potentially
in conflict with the BiH Citizenship Law and the Federation Constitution.
OHR is now consulting with representatives within the Ministry of Justice and
the Ministry of Interior to clarify the changes and to urge expedited passage of
the Law. The draft Law requires adoption as soon as possible, since many former
SFRY citizens who took up permanent residence in BiH before 1998 became eligible
for BiH citizenship as of 1 January 2000 and are unable to do so in the absence
of a Federation Citizenship Law.
RS
- Adoption of the Criminal Code and Code of Criminal Procedure
Partially satisfied. Efforts to revise the Criminal Code and
Criminal Procedure Code are ongoing. The 11th session RS National
Assembly passed the proposed Criminal Code on June 22, 2000 and the Law
entered into force on October 1, 2000. The Criminal Procedure Code has
undergone review by Council of Europe experts and will be prepared with members
of an inter-agency working group for presentation and discussion to the RS
working group in order to provide consistent approach across State and entity jurisdictions. ¨ It is expected
that this will be placed before Parliament in the first half of 2001 for final
passage.
7. ICTY
- Full co-operation with the ICTY
Unsatisfied. The only arrests of war criminals so far have been conducted
by SFOR, the limited involvement of the local authorities in this respect and
their lack of co-operation has not changed since the beginning of the assessment
exercise.
So far 8 indicted war criminals have been arrested by SFOR since October 25,
1999. In total, SFOR has now detained twenty one alleged war criminals in BiH,
which is to be added to the 19 who surrendered or have been apprehended in third
countries. More than half of the public indictees who remain at large originate
from BiH.
9. Property Laws (Return of Refugees and Displaced
Persons)*
Unsatisfied. From May through
December of 2000, the rate of implementation in BiH accelerated at a rate of
approximately 1% per month. At this continued rate of implementation, it would
take roughly six more years to fully implement the property laws. This is not
acceptable, especially as some municipalities have shown that it is possible to
reach better implementation rates by consistently increasing it by over 3% per
month.
With a total number of claims standing at 248 110 countrywide (120 474 in the
Federation of BiH and 119 794 in the Republika Srpska), the rate of
implementation continues to vary widely throughout BiH – with from less than 5%
to over 50% of claims having been realised in various municipalities to date. In
Cantons 4 (Zenica-Doboj) and 6 (Central Bosnia) several municipalities are
nearing completion of the implementation process, in direct contrast to areas
where progress remains slow: the Croat-majority areas in Cantons 7
(Herzegovina-Neretva) and areas of the Eastern RS including Bratunac,
Foca/Srbinje, Srpsko Gorazde and Visegrad.
Resolution of property claims in the RS continues to lag well behind that of
the Federation of BiH: as of December 31, 2000, 29% of all claims in the
Federation were processed, and 13% in the RS. In the five municipalities that
account for 40% of the claims for repossession in the RS - Banja Luka, Prijedor,
Doboj, Bijeljina and Zvornik – the average rate of implementation stands at
merely 10%. This is despite considerable assistance received from the
International Community, most notably through the over USD 1 million in budget
assistance to the Ministry for Refugees and Displaced Persons to hire additional
staff and upgrade housing offices.
Outstanding. While progress slowly increased throughout 2000, in a large
part due to the efforts of the International Community (in particular OHR, OSCE,
UNHCR, CRPC and UNMIBH, within the framework of the Property Legislation
Implementation Plan), local authorities are still, in many cases, failing to
take full ownership of the implementation process. In many cases, both in the
Federation and in the RS, local authorities have provided neither adequate
resources for the full functioning of housing offices, nor sufficient
alternative accommodation to meet the needs of their area of jurisdiction.
Local officials are responsible for ensuring that everyone with the right to
alternative accommodation receives it: these obligations remain mostly unmet.
Only a few municipalities have produced lists of unclaimed socially owned
property, and many state-owned companies have not provided records on property
where occupancy rights changed during the war. Little effort has been made to
use other structures as possible alternative accommodation, as permissible under
entity property legislation.
There continue to be many illegal acts encountered in implementation of the
property laws, including illegal allocations of private property, looting,
violence against housing office employees and illegal
revalidations/privatisations, which have not been adequately addressed by local
officials. There also remains a considerable problem with public officials
occupying claimed space. Overall, political obstruction remains the primary
impediment to full compliance regarding implementation of the property laws.
Although the State-level Ministry for Human Rights and Refugees was created,
a stronger role in the coordination of property issues between the Entities is
necessary. The Property
Legislation Implementation Plan framework agencies (OHR, OSCE, UNHCR, CRPC
and UNMIBH) are cooperating with the Ministry and the Entity Ombudsmen, in
working to support and build the capacity of domestic bodies and to promote
greater coordination and communication at both entity and municipal level.
As return continues to accelerate, closer attention must be paid to issues of
sustainability: particularly regarding eliminating discrimination in employment,
education and healthcare. A positive development in recent months is the
increasing employment of minorities in housing offices. As of February 2000, the
RS Ministry for Displaced Persons and Refugees will have employed nine minority
officials in its municipal offices, under the US budget support programme, and
is prepared to employ further candidates. In the Federation the number of
minorities employed in housing offices has risen, reflecting the results of the
November 2000 municipal elections.
FBiH and RS
Imposed by the High Representative . The High Representative issued a Decision on April, 13
1999, by which new permanent occupancy rights were 're-converted' to temporary
occupancy rights, to be resolved through the administrative claims process. This
Decision has been accepted by both Entities and published in the respective
Official Gazettes. Implementation has begun slowly. However, as the category of
new permanent occupancy right holders includes many well-connected people, there
is strong resistance to evictions and strong international pressure is required
to achieve any progress.
FBiH and RS
- Revised Law on Housing Relations
Satisfied in the Federation and imposed by the High Representative in the
RS . Amendments to
the problematic provisions were adopted by the Federation Parliament in January
1999, and imposed in Republika Srpska by a Decision of the High Representative
on 13 April 1999. Following these amendments, it is no longer possible to cancel
the occupancy rights of individuals if displaced. Prior court decisions
canceling occupancy rights on this basis have been annulled.
FBiH and RS
Unsatisfied. An advisory committee is preparing draft legislation
regarding access to public administrative documents. Efforts by the competent
authorities, with regard to recognition of documents, are at an early stage and
will require further concerted input on their part in the future.
In relation to documentary evidence for the property claims process, access
to documents remains problematic in many parts of the country. Claims without
supporting documentation are wrongfully refused at the filing stage, whilst
copies of documentation remain extremely difficult or expensive to obtain from
cadastral administrations and property book services. A number of municipal housing authorities have no access to
the cadastre or housing records, either because they have been destroyed or
because they are held elsewhere (usually across the IEBL).
FBiH
Partially Satisfied. A Decision of the High Representative on July 1,
1999, agreed in advance with the Federation Government, establishes criteria for
determining which former occupants of JNA apartments should be considered
displaced persons with the right to return. For those granted the right to
return, procedures have been established for recognizing their pre-war contracts
of sale. For those not permitted to return, they will be reimbursed for any
money paid towards the purchase of the apartment. Where the individual is unable
to reach an agreement with the Ministry of Defense, the responsible court will
have full jurisdiction to adjudicate.
The recognition of contracts of sale of those who remained in possession of
their apartment is proceeding satisfactorily. Repossession of JNA apartments,
however, has made little progress due to insufficient administrative capacity in
the Sarajevo Cantonal Housing Department.
RS
Partially satisfied. This accession requirement refers explicitly to the
establishment of offices to receive claims, including staffing, funding and
other resources. The issue of implementation is discussed above and is not part
of this specific requirement.
The claims process in the Republika Srpska is now roughly complete, as in the
Federation, with the similar exception of cases of private property, where the
owner is currently not attempting to pursue the claims process. There are no
further reports of individuals being completely prevented from making their
claim in the RS in recent months. However, more adequate staffing levels have
only been achieved as a result of the assistance from the US Government: the RS
Government must now take steps to ensure the continuing provision of resources
after the budget support programme ends.
11. Education
Overall progress in the current education system in BiH remains
unsatisfactory for a number of reasons, including lack of material resources,
lack of access or facilities for disabled children and the gender imbalance that
exists in relation to male-dominated directorial positions in schools. However,
the major problem lies in the effective division of the education system along
ethnic lines, which acts to inhibit sustainable minority return and ethnic
re-integration; further, it encourages future destabilisation through
radicalising, and thus polarising, another generation of citizens. To address
this issue the International Community focuses on excising offensive materials
from text-books, on promoting multi-ethnicity and tolerance in the classroom,
and on gradually working towards the adoption of a joint core
curriculum.
Partially satisfied. Some progress has been made towards removal of
offensive materials from all textbooks. This ongoing exercise, involving
extensive negotiations with local education authorities and substantive work by
local teams of experts followed by consultations with an International
Independent Commission, is an interim step, to be followed by substantial
further improvement of textbooks to ensure that they eventually meet European
standards. Continuous pressure from the International Community remains
necessary. Extensive spot checks carried out in schools throughout the country
between late October and late December (whereby approximately 10% of all the
schools were actually visited) revealed that the level of compliance is
generally acceptable. However, compliance is better in the Federation than the
Republika Srpska, and better in primary than secondary schools. Schools
following the Bosniak curriculum have the highest compliance level, followed
closely (except in some problematic mixed areas of the Herzegovina – Neretva and
Central Bosnia Cantons) by schools with the Croat curriculum. Schools following
the Serb curriculum have the lowest compliance levels, partly because the
Ministry issued a different instruction from that issued by OHR, leading to the
surreptitious introduction of a new set of textbooks into the Republika Srpska
in September 1999. Those textbooks were not reviewed by the expert teams of the
other constituent peoples of BiH before they were actually introduced.
Unsatisfied. In most cases, the education system in BiH is effectively
entrenched along ethnic lines. Eradication of all aspects of ethnic segregation
can only be achieved over the long term, through continuous pressure from the
International Community and growing involvement of the civil society in the
education system, provided the political will exists on the part of the national
and local authorities. Under the Federation constitution, education is within cantonal competence,
except where the municipality has a different majority ethnic population from
the canton as a whole, when it becomes a municipal competence. In the Republika Srpska, however, education is
an Entity responsibility. In the Federation, the Deputy Minister continues to
see ethnic segregation as necessary to protect the rights of the Croat
constituent people, whose numbers were reduced from 750.000 before the war to
about 400.000 now. In this respect, OSCE and the International Human Rights Law
Group have reported several cases of physical segregation.
A symposium on the curricula of the "national" subjects was held in Sarajevo
on February 7 and 8, where the participants agreed to adopt the Swiss model. The
plan, which allows a great degree of autonomy for each canton, also
requires a sophisticated level of co-ordination and exchange between the cantons
and between the Entities. The symposium was designed to pave the way towards a
sustainable education system. No joint curriculum can be envisaged in the short
term. However, a process has now been initiated, which will produce
gradual change that should eventually lead to a more integrated education system
in BiH on the basis of accepted European standards and norms.
On May 10, 2000 the Entity Ministers of education endorsed this strategy by
signing both a Declaration (formulated as a strategic plan) and an Agreement
(formulated as an operational plan). The Agreement and Declaration itemise the
short- and medium-term reforms to be implemented throughout BiH, with a view to
desegregating existing education systems, harmonizing curricula and textbooks,
establishing mechanisms for recognising diplomas, certificates and professional
qualifications, and thereby facilitating the return of displaced families
throughout the country.
Under the terms of the 10 May 2000 Agreement, a "Curriculum Harmonisation
Board" was formed. Several meetings were held by its members and Entity
Ministers are now called upon to make decisions regarding the concrete measures
to be implemented by September 2000. Obstructionist tactics by the RS Minister
and the Croat Deputy Federation Minister have been observed lately, ,
particularly with regard to the country-wide introduction of "curricular
modules" on language, literature, culture and religion, reflecting the
traditions of the three constituent peoples, which have to be taught to all
children in BiH, as well as the introduction of the second alphabet.
Negotiations were then taken to a higher political level and eventually, at an
Entity Ministers' meeting on September 26, 2000, the Croat Deputy Federation
Minister agreed to allow the teaching of the second alphabet on the terms that
had already been agreed to by the two other sides. The three Ministers also
agreed to proceed with the substantive preparation work of the curricular
modules. UNESCO agreed to take the lead in this respect, and assigned one
curriculum expert to this task, which is financed by OHR. It is anticipated that
the 36 modules which have to be developed should be completed by March
2001.
The International Community has also focused these past few months on
resolving a certain number of school crises in the Federation (Stolac, Vares,
Bugojno Gornij Vakuf, Vitez et al).. While the recent Agreement provides
the necessary framework for solving such cases, direct political intervention
and pressure remains indispensable. Thus, the primary schools of Stolac, Vares
and Bugojno are now shared by the Croat and Bosniak children. In addition, an
agreement was recently signed in Mostar on the highly symbolic Gymnasija which,
in the future, will be shared by the two communities. Furthermore, the Central
Bosnian Canton recently issued a decision on the rational use of school
facilities throughout the Canton which mandates the implementation of the
Bugojno agreement principle of " two schools under one roof " as an interim
solution to tackle the serious school accommodation problems that the Canton is
faced with. A gradual process of reintegration is thus being made possible but
utmost vigilance remains necessary.
Higher education developments
The Higher Education Co-ordination Board was finally established formally in
June 2000. It had been under discussion for over two years, and World Bank
funding and EU technical assistance was conditioned upon its creation. In in the
first stage, its main task will be to adopt its work plan based upon the
recommendations contained in the World Bank/ Council of Europe report, which
identified the need for a long term strategic plan between the BiH universities
to modernise their under-funded and under-managed system. The
recommendations acknowledge the crucial importance of reforms to the university
system for the future of a sustainable BiH.
¨ Short term
perspectives
While there is no alternative to the slow process of the regular meetings of
the Conference of Entity Ministers of Education, new political instruments have
to be developed that will accelerate this process. Among them is the development
in 2001 of a modern legal framework for primary and secondary education, which
could eventually be imposed, as well as more focused political attention.
Furthermore, efforts are now underway to establish "a regional taskforce on
education" involving BiH, Croatia and the FRY, in order to accelerate the
adoption of European standards and devise a common approach to education geared
towards reconciliation and peace building at school.
¨ The four religious leaders met on
February 19, 2001 and acknowledged the importance of the teaching of
a new subject presently called
"culture of religions"
and expressed their
desire to give their input to what should be taught under this subject. They
will each nominate an educational expert who will forward their ideas and
proposals to the Office of the High Representative, which will co-ordinate them.
OHR and the religious leaders agreed to speedily proceed on the development of
the subject. The decisions on the exact designation of the new subject and all
implementation details will be taken immediately afterwards in close
consultation with all concerned parties, including the Inter-Religious
Council.
HRCC Member Organizations
OHR : Under the Annex 10 of Dayton Agreement, the Office of the
High Representative is tasked with co-ordination of civilian aspects of peace
implementation in Bosnia. OHR maintains a regional human rights presence, and
works closely with other agencies who monitor the human rights situation, to
develop strategies and co-ordinate interventions. For more information about the
OHR generally or about human rights specifically, please contact:
Office of the High Representative tel: 387 33 283 500
Elmerika Bluma 1 fax 00 387 33 283 501
71 000 Sarajevo, Bosnia and Herzegovina web:
www.ohr.int
OSCE: Human Rights Department (HRD)
The OSCE mandate derives from Article XIII of Annex 6 of
the Dayton Agreement. HRD has staff in OSCE's 27 Field Offices and 4 Regional
Centers, which allow the OSCE to ensure full coverage of the territory of BiH
and makes the organisation a direct actor in addressing human rights issues. The
HRD focuses on property and other return related issues; education; employment
and; rule of law. The Human Rights Department interprets its mandate to include
inter alia: monitoring, investigating and intervening on allegations of
human rights abuses.
OSCE Human Rights Department tel: 387-71-444-444
Dzenetica Cikma 2/4 fax: 387-665-236
Sarajevo, Bosnia web: www.oscebih.org
UNHCR: The United Nations High Commissioner for Refugees
is the lead organisation for the implementation of Annex 7 of the Dayton
Agreement, which guarantees the right of displaced persons and refugees to
return to their homes of origin. Protection Unit: UNHCR provides
international protection and assistance to refugees abroad, displaced persons,
as well as other persons of concern through its offices throughout Bosnia and
Herzegovina and the network of Legal Aid/Information Centres. To create a
framework conducive to safe and dignified return and to promote return
opportunities, UNHCR has been involved in various human rights areas: return,
property, citizenship, customs, travel documents, amnesty, pensions, gender.
Tools of involvement range from assisting in the creation of an appropriate
legal framework, monitoring the situation on the ground, interventions,
producing reports and issuing position papers in relation to persons still in
need of international protection. For more information about UNHCR in Bosnia, please
contact:
UNHCR tel: 387-71-666-160
Unis Building Tower A fax: 387-71-470-171
Fra Andela Zvizdovica 1 web: www.unhcr.ba
Sarajevo, Bosnia
UNMIBH/IPTF Human Rights Office: The existence of International Police Task
Force is mandated by Annex 11 of the Dayton Agreement. Under Security Resolution
1088, the IPTF's work
includes "investigating or assisting with investigations into human rights
abuses by law enforcement personnel." The main objectives of the Human Rights
Office are to: investigate human rights violations by law enforcement agents;
design remedial measures to correct such violations; and to monitor and ensure
the implementation of corrective measures. To implement these objectives, the
Human Rights Office carries out investigations into serious incidents of police
misconduct and conducts comprehensive inspections of law enforcement agencies to
address persistent endemic institutional deficiencies. The Human Rights Office
is comprised of 145 International police and 17 international civilian staff,
deployed throughout the country.
UNMIBH tel: 387-71-496-265 Aleja Bosne Srebrene bb fax: 387-71-496-539
71 000 Sarajevo
Bosnia and Herzegovina
OHCHR:
As of December 1998,
the OHCHR in Bosnia and Herzegovina is part of the Office of the Special
Representative of the Secretary General (SRSG, in charge of the UNMIBH). It
focuses its activities on human rights training and on issues of gender and
discrimination, with particular emphasis on social and economic rights. It
continues to support the mandate of the Special Rapporteur of the Commission on
Human Rights and participates in the work of the Human Rights Co-ordination
Centre (HRCC) of the OHR. The legal authority for its presence is based on
annual resolutions of the Commission on Human Rights as well as Article XIII of
Annex 6 of the Dayton Agreement.
Office of the High Commissioner for Human Rights tel: 387 71 49
6402, 6403
Aleja Bosne Srebrene bb, 71000 Sarajevo fax: 387 71 49 6438
Bosnia and Herzegovina
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