CAT/C/67/D/854/2017
2.9
The complainant further states that she has exhausted all available domestic
remedies and, in her case, that such remedies did not prove effective; in Bosnia and
Herzegovina there is no other remedy likely to bring her relief. The complainant submits
that both the Convention and the Committee’s rules of procedures specify that a
complainant is excused from pursuing domestic remedies if they are unlikely to bring him
or her effective relief. The Committee has continuously held that complainants are not
expected to exhaust domestic remedies that do not offer any realistic prospect of success. 5
The complainant contends that her situation falls precisely within this exception, given that
the submission of any further claim to the Bosnian authorities has no prospect whatsoever
of success. She points out that, in her case, the fact that submission of a claim of nonpecuniary damage in civil proceedings would not produce any meaningful result constitutes
per se part of the violations she is alleging in her communication because it would be
considered time-barred. There is a statute of limitations in the applicable law 6 that has been
interpreted by the Constitutional Court of Bosnia and Herzegovina since its decision of 23
December 2013 7 as meaning that any claims for non-pecuniary damages against legal
entities filed more than five years after the injured party learned about the damage and the
identity of the person who caused it are time-barred. Concerning this aspect, the
complainant considers it unrealistic to expect that a victim of rape or any other conflictrelated crime would have been able to claim their rights during the early post-war years
when there was instability and many still feared reprisals from public institutions, thus
rendering such a remedy ineffective. The victims who nevertheless submitted claims found
their complaints rejected for the reasons mentioned and were then forced to pay between
2,000 and 10,000 marka (approximately 1,020 and 5,110 euros).8
2.10 The complainant notes that in its concluding observations on Bosnia and
Herzegovina of March 2017, the Human Rights Committee expressed its concern at this
jurisprudential interpretation adopted by the Constitutional Court of Bosnia and
Herzegovina and found that it leaves victims of crimes under international law, and in
particular of wartime sexual violence, without any effective remedy. 9
2.11 The complainant adds that the submission of her claim before any other Bosnian
authority is unlikely to bring her effective relief given the jurisprudence of the domestic
courts and the Constitutional Court declaring claims for non-pecuniary damage concerning
violations perpetrated during the war to be time-barred and not acknowledging the
subsidiary liability of the State or other entities (i.e., VRS).
2.12 The complainant submits that the facts presented in her case must be seen in the
context of the widespread practice of failing to undertake a prompt investigation and
provide the payment of fair and adequate reparation for crimes committed during the armed
conflict, which triggers an aggravated responsibility on the part of the respondent State for
the provision of fair and adequate compensation to victims. The complainant also states that
the rapes and acts of sexual violence and ill-treatment to which she was subjected amounted
to acts of torture pursuant to article 1 (1) of the Convention. 10 The complainant has not
received any form of compensation for the harm suffered, despite her attempts to obtain it.
This constitutes, for the complainant, an ongoing violation of article 14 (1) in conjunction
5
6
7
8
9
10
Kayhan v. Turkey (CEDAW/C/34/D/8/2005), para. 7.4; and Human Rights Committee, Prutina and
others v. Bosnia and Herzegovina (CCPR/C/107/D/1917,1918,1925/2009 and 1953/2010), para 8.3;
Durić v. Bosnia and Herzegovina (CCPR/C/111/D/1956/2010), para 8.3; Selimović et al. v. Bosnia
and Herzegovina (CCPR/C/111/D/2003/2010), para 11.3; and Lale and Blagojević v. Bosnia and
Herzegovina (CCPR/C/119/D/2206/2012), para 6.5.
See, among others, Sahli v. Algeria (CAT/C/46/D/341/2008), para. 8.3; Boily v. Canada
(CAT/C/47/D/327/2007), para. 13.2; Dimitrijevic v. Serbia and Montenegro (CAT/C/35/D/172/2000),
para. 6.2; Dimitrijevic v. Serbia and Montenegro (CAT/C/33/D/207/2002), para. 5.2; and Enrique
Falcón Rios v. Canada (CAT/C/33/D/133/1999), para. 6.6.
Law on Civil Obligations, art. 376.
Hamza Rekic v. Republika Srpska, decision No. AP-3111/09.
The complainant currently survives on very limited resources coming solely from the disability
pension she receives.
CCPR/C/BIH/CO/3, paras. 17–18.
G.N. v. Burundi (CAT/C/60/D/579/2013), para. 7.4; and V.L. v. Switzerland (CAT/C/37/D/262/2005),
para. 8.10.
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