News from Bosnia – ECtHR Dokic decision and guest blogger Massimo Moratti’s view from the field

It can be hard to get around Bosnia in looking at post-conflict housing, land and property (HLP) issues. For better or for worse, Bosnia set the post-Cold War paradigm of mass administrative restitution that laid the ground for the 2006 Pinheiro Principles, and which has since been roundly criticized as raising false expectations in settings with weaker national capacities, vaguer international commitments and less tidy, uniform and (relatively) equitable land and property relations. However, despite the importance of looking beyond the Balkans in developing a clear-eyed view of the HLP challenges that lurk in such heterogeneous settings as Sudan, Afghanistan and Colombia, yet Bosnia refuses to be silent.

Late last week, the Fourth Section of the European Court of Human Rights released its judgment in the Case of Dokic v. Bosnia and Herzegovina (see the press release here and the full text of the decision here). This decision awards compensation for pecuniary and non-pecuniary damages to a military school lecturer who had begun the process of privatizing his socially-owned flat prior to the conflict in Bosnia and was subsequently denied a remedy for the loss of his rights due to a quirk in the restitution laws of one of Bosnia’s two post-war federal “entities” that created special rules for “military apartments” from the pre-war housing fund of the Yugoslav National Army (for a more detailed description of this controversy see section VI.D of a 2005 article I wrote on Bosnian restitution).

In issuing this decision, the Court ties up one of the many legal loose ends that continue to haunt the former Yugoslavia a decade after the fighting stopped. The judgment also further rounds out the restitution and compensation-related jurisprudence of the Court under Article 1 of the first Protocol to the European Convention on Human Rights and – upon becoming final – is likely to have significant political and financial implications in Bosnia and possibly the wider region. Among many of its interesting aspects (to be discussed in more detail in a subsequent post), the judgment also cites not only the Pinheiro Principles but also the more recent Resolution 1708 (2010) of the Parliamentary Assembly of the Council of Europe (see TN posting here) as ‘relevant international documents’.

The Dokic decision carries with it a number of personal associations for me. At the end of my time with the OSCE in Bosnia, I drafted and presented an amicus curiae brief to the Bosnian Constitutional Court that asserted one of the three arguments – failure to demonstrate use of confiscated military apartments for the asserted humanitarian aims – that the ECtHR relies on in finding a violation (see para. 61). And more recently, I had the privilege of assisting the CoE PACE Rapporteur, Jorgen Poulsen, in developing a report that helped lead to the adoption of Resolution 1708.

In this context, it seems fitting that the Dokic decision was nearly simultaneously brought to my attention today by former Bosnia colleagues Massimo Moratti and Javier Leon Diaz, and that the former will be guest-blogging later this week on his view of the longer term repercussions of restitution in Bosnia. Massimo was one of the architects of Bosnian restitution, with  experience opening the process up in Prijedor, the site of notorious ethnic cleansing during the war, as well as managing monitoring and policy formulation at both the regional and national level with the OSCE. Having gotten a bit of perspective as an international consultant and more recently returned to work again in Bosnia, Massimo’s forthcoming observations provide a strong and locally grounded complementary note to the legal conclusions in the Dokic case.

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6 responses to “News from Bosnia – ECtHR Dokic decision and guest blogger Massimo Moratti’s view from the field

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