FOURTH SECTION
DECISION
Application no. 21988/20
Edhem HALILIĆ and Others
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 22 February 2022 as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 21988/20) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 April 2020 by the applicants listed in the appended table (“the applicants”) who were represented by Mr E. Hrnjić, a lawyer practising in Žepče;
Having deliberated, decides as follows:
SUBJECT-MATTER OF THE CASE
1. The case concerns the absence of a cemetery where atheists, agnostics, sceptics and the unconcerned – groups to which the applicants belong – could be buried without a religious ceremony.
2. On 5 February 2019 the applicants, with thirty-two other individuals, sent a letter to the mayor of the Žepče Municipality noting that all of the local cemeteries were owned by religious communities which conducted burials only in accordance with their respective practices. The applicants enquired about the solution to that problem. On 22 February 2019 the mayor replied that the Urbanistic Plan did not allocate a plot of land for a cemetery for non-religious funerals.
3. On 19 March 2019 the applicants, with 109 other individuals, repeated their grievances in a petition to the Municipal Council.
4. On 30 May 2019 the applicants, with thirty-three other individuals, complained to the Constitutional Court about the absence of a non-religious cemetery and the Municipal Council’s delayed consideration of their petition.
5. On 27 November 2019 the Municipal Council issued a conclusion (zaključak) that the petitioners would be granted an appropriate plot of land on condition that they, inter alia, registered themselves as an association and financed the construction of the cemetery.
6. On 6 December 2019 the appellants amended their constitutional appeal with the conclusion of the Municipal Council. They argued that the conditions set out in the conclusion had been “unlawful and inappropriate”.
7. On 28 January 2020 the Constitutional Court rejected the appellants’ constitutional appeal on the ground of lack of jurisdiction in cases where there had been no prior judicial decision.
8. The applicants complained under Article 9 of the Convention of an inability to be buried without a religious ritual, and under Article 14 of the Convention, read in conjunction with Article 9, that they had suffered a difference in treatment on the grounds of religion.
THE COURT’S ASSESSMENT
9. The general principles concerning the rule of exhaustion of domestic remedies were summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).
10. Section 12 § 1 of the Prohibition of Discrimination Act 2009 (Zakon o zabrani diskriminacije, Official Gazette of Bosnia and Herzegovina nos. 59/09 and 66/16) entitles an individual or a group of individuals that are subjected to any form of discrimination to bring a civil claim seeking to: (a) establish discrimination; (b) prohibit discriminatory and potentially discriminatory actions or order measures to rectify discrimination and its consequences; (c) obtain compensation for pecuniary and non-pecuniary damage; and (d) publish in the media, at the respondent’s expense, the judgment finding a breach of the prohibition of discrimination.
11. However, the applicants have not instituted civil proceedings before a competent court in accordance with the above provision. There is no indication, nor did the applicants argue, that the civil claim in question, still open to the applicants, would not be effective for the purposes of their complaints, or that there are special circumstances absolving them from the requirement to make use of that remedy.
12. It follows that the application is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 March 2022.
Ilse Freiwirth Tim Eicke
Deputy Registrar President
Appendix
List of applicants :
Application no. 21988/20
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Edhem HALILIĆ
1947
of Bosnia and Herzegovina
Žepče
2.
Emir DERVIŠIĆ
1965
of Bosnia and Herzegovina
Žepče
3.
Kerim KAHRIMAN
1995
of Bosnia and Herzegovina
Žepče
4.
Edin KARAHODŽIĆ
1970
of Bosnia and Herzegovina
Žepče