FOURTH SECTION

CASE OF SPAHIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

(Applications nos. 20514/15 and 15 others – see appended list)

JUDGMENT

STRASBOURG

14 November 2017

FINAL

14/02/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Spahić and Others v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

 Ganna Yudkivska, President,
 Vincent A. De Gaetano,
 Paulo Pinto de Albuquerque,
 Faris Vehabović,
 Iulia Motoc,
 Carlo Ranzoni,
 Georges Ravarani, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 17 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in 16 applications (nos. 20514/15, 20528/15, 20774/15, 20821/15, 20847/15, 20852/15, 20914/15, 20921/15, 20928/15, 20975/15, 21141/15, 21143/15, 21147/15, 21224/15, 21237/15 and 21239/15) 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”) by 16 citizens of Bosnia and Herzegovina on 20 April 2015. A list of the applicants with their personal details is set out in the appendix.

2.  The applicants were represented by Ms H. Kapetan, a lawyer practising in Travnik. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent at the time, Ms Z. Ibrahimović.

3.  The applicants complained of the non-enforcement of final domestic judgments in their favour.

4.  On 31 August 2015 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  By five judgments of the Travnik Municipal Court (“the Municipal Court”) of 5 March 2009, 18 January 2012, 31 March 2010, 30 April 2012 and 13 June 2011, which became final on 17 June 2010, 13 February 2012, 1 September 2010, 12 March 2013 and 21 July 2011, respectively, the Central Bosnia Canton (Srednjobosanski kanton, “the CB Canton”; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants various sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs.

6.  The writs of execution issued by the Municipal Court on 23 September 2010, 14 June 2012, 4 October 2010, 13 February 2013 and 25 October 2011, respectively, were transferred to the competent bank and were listed among the charges on the debtor’s account. On several occasions thereafter the bank informed the Municipal Court that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.

7.  On 26 February 2013 and 7 January 2014 the Ministry of Finance of the CB Canton (“the Ministry”) informed the bank that no funds for the enforcement of final judgments had been provided in the cantonal budget for 2013 and 2014 and that, accordingly, the final judgments against the canton could not be enforced.

8.  However, on 9 January 2015, upon the applicants’ enquiry, the Ministry informed them that in 2013 the canton had designated 620,000 convertible marks (BAM)[1] for the enforcement of judgments and BAM 605,900 in 2014 for the same purpose.

9.  The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 17 September 2014 (decision no. AP 3438/12) and 26 February 2015 (decision no. AP 4242/14), the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the applicants’ and five other cases, on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the CB Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time. Although some of the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation.

The relevant part of the decision of 17 September 2014 reads as follows:

“36.  ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account.

...

39.  The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments ... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1’ ...

40.  The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina...The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ...

...

42.  The court finds that the crux of the problem in the present case is that the CB Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the CB Canton would ensure the respect of its obligations from Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

...

44.  The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ...

...

46.  In order to comply with its positive obligation, the government of the CB Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

...

47.  ... The current situation does not give any guarantees to the appellants that their claims against the CB Canton will be enforced within a reasonable time”.

10.  The Constitutional Court’s decision of 26 February 2015 follows the same legal reasoning.

11.  On 19 January 2016 Mr Jasmin Hodžić and Ms Jasmina Mezildžić concluded out-of-court settlements with the government of the CB Canton pursuant to which part of their principal claims were to be paid within 15 days following the settlement. They renounced the remaining principal claim and default interest. The legal costs were to be settled by a separate agreement. From the information available in the case it transpires that no such agreement has been concluded.

12.  As regards the rest of the applicants, the final judgments in their favour have not yet been enforced.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of the CB Canton

13.  Article 19 of the Constitution of the CB Canton (Ustav Srednjobosanskog kantona, Official Gazette of the CB Canton nos. 1/97, 5/97, 2/98, 7/98, 8/98, 10/00, 8/03, 2/04 and 14/04) provides that in accordance with the Constitution of the Federation of Bosnia and Herzegovina, the Federation and the CB Canton are responsible for ensuring the implementation of human rights within their jurisdictions. The cantonal government is responsible for the enforcement of final judgments of the federal and the cantonal courts (Article 53 § b).

B.  Enforcement Procedure Act 2003 of the Federation of Bosnia and Herzegovina

14.  Section 138 of the Enforcement Procedure Act 2003 (Zakon o izvršnom postupku, Official Gazette of the Federation of Bosnia and Herzegovina nos. 32/03, 52/03, 33/06, 39/06, 39/09, 35/12 and 46/16) provides for the limitation of enforcement of final judgments against the Federation of Bosnia and Herzegovina and the cantons: these will be enforced only within the amount of funds provided for that purpose in the federal and cantonal budgets which cannot be lower than 0,3% of the total budget (section 138 (3) and (6)). The enforcement will be carried out in a chronological order according to the time the judgments became final. The statutory prescription period does not apply to these claims (section 138 (5)).

THE LAW

I.  JOINDER OF THE APPLICATIONS

15.  Given their common factual and legal background, the Court decides to join these 16 applications pursuant to Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

16.  The applicants complained of the non-enforcement of the final domestic judgments indicated in paragraph 5 above. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Article 6 § 1, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 1 of Protocol No. 1 to the Convention reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A.  Admissibility

1.  The Government’s objections as to the admissibility

17.  The Government argued that Ms Ljiljana Simović, Mr Kazimir Jurić, Mr Abdulah Burek, Mr Amer Sunulahpašić, Ms Nasira Kurtović, Mr Nidaz Ugarak, Mr Jasmin Hodžić and Ms Jasmina Mezildžić had submitted their applications outside the six-month time-limit laid down in Article 35 § 1 of the Convention. The final decision concerning their complaints was taken by the Constitutional Court on 17 September 2014. The Government further submitted that Mr Hodžić and Ms Mezildžić could no longer claim to be victims of the alleged violation within the meaning of Article 34 of the Convention in view of the fact that they had settled their claims with the cantonal government.

18.  The applicants submitted that the Constitutional Court’s decision of 17 September 2014 had been delivered to their representative on 24 October 2014. In support of that claim they submitted a letter of the Constitutional Court sent to their representative, Ms Kapetan, on 16 February 2016 confirming that the delivery date had been 24 October 2014. The applicants did not submit any comments as regards the Government’s second objection.

2.  The Court’s assessment

19.  In view of the applicants’ submission it is clear that the applications of Ms Ljiljana Simović, Mr Kazimir Jurić, Mr Abdulah Burek, Mr Amer Sunulahpašić, Ms Nasira Kurtović, Mr Nidaz Ugarak, Mr Jasmin Hodžić and Ms Jasmina Mezildžić were introduced within the six-month time-limit from the notification of the decision of the Constitutional Court of 17 September 2014.

20.  In any event, the Court notes that the alleged violation in the present case constitutes a continuous situation (see Arežina v. Bosnia and Herzegovina (dec.), no. 66816/09, 3 July 2012). The final domestic judgments in the applicants’ favour have not yet been enforced. This is also true as regards Mr Hodžić and Ms Mezildžić since the legal costs ordered by final judgments have not yet been paid (see paragraph 11 above). Moreover, the Court notes that the settlements in issue were concluded almost five years after the judgments in the applicants’ favour became final. In that connection, the Court reiterates that in similar cases it found that an applicant may still claim to be a victim in relation to the period during which the decision of which he or she complained remained unenforced (see, mutatis mutandis, Dubenko v. Ukraine, no. 74221/01, § 36, 11 January 2005, and Runić and Others v. Bosnia and Herzegovina, nos. 28735/06 et al., § 16, 15 November 2011). Accordingly, they may still claim to be victims within the meaning of Article 34 of the Convention.

21.  The Government’s objections must therefore be dismissed.

3.  Conclusion

22.  The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The applicants’ submissions

23.  The applicants essentially maintained that the principle of the rule of law, which Bosnia and Herzegovina had undertaken to respect when it ratified the Convention, required that every judgment be enforced without delay. They submitted in particular that the government of the CB Canton had not complied with the decisions of the Constitutional Court. It had not prepared transparent and centralised database of all the claims and had not provided adequate funding in its annual budget for the enforcement of these claims.

2.  The Government’s submission

24.  The Government submitted that the respondent State and the government of the CB Canton had never disputed the applicants’ right to have their final judgments enforced. Every year the cantonal government designated substantial budgetary funds for that purpose. However, in view of the size of its public debt some delays in the enforcement were unavoidable. For example, in 2014 the aggregate debt concerning non-enforced judgments was BAM 18.108.485,54. The cantonal government kept updated record of its liabilities under final judgments and was looking for the best modalities for their payment.

3.  The Court’s assessment

25.  The general principles relating to the non-enforcement of domestic judgments were set out in Jeličić v. Bosnia and Herzegovina (no. 41183/02, §§ 38-39, ECHR 2006 XII). Notably, the Court has held that it is not open to authorities to cite lack of funds as an excuse for not honouring a judgment debt (see ibid., § 39; see also R. Kačapor and Others v. Serbia, nos. 2269/06 et al., § 114, 15 January 2008, and Arbačiauskienė v. Lithuania, no. 2971/08, § 87, 1 March 2016). Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1 (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002 III, and Teteriny v. Russia, no. 11931/03, § 41, 30 June 2005).

26.  In addition, the Court reiterates that the impossibility of obtaining the execution of a final judgment in an applicant’s favour constitutes an interference with his or her right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov, cited above, § 40; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003; and Voytenko v. Ukraine, no. 18966/02, § 53, 29 June 2004).

27.  In its decisions of 17 September 2014 and 26 February 2015 the Constitutional Court held that a prolonged non-enforcement of final judgments had violated the applicants’ rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The government of the CB Canton was ordered to take the necessary steps in order to secure the enforcement of final judgments within a reasonable time. The Constitutional Court held, in particular, that the cantonal government should identify the exact number of unenforced judgments and the amount of aggregate debt, and set up a centralised, chronological and transparent database which should include the enforcement time-frame and help avoid abuses of the enforcement procedure.

28.  The Government submitted that the cantonal government had identified the amount of aggregate debt for 2014 and had kept a record of its liabilities. However, it would appear that the general measures as ordered by the Constitutional Court have not been implemented. It has not been shown that the cantonal government set up a database of all the claims and provided the enforcement time-frame. Furthermore, while the Court understands the difficulties created by the enormous public debt, it notes that there appear to be no precise economic policy governing the amount of annual budgetary funds for this purpose except for the statutory requirement that it cannot be lower than 0,3% of the total budget (see paragraph 14 above).

29.  Therefore, the applicants’ situation remains unchanged. They are confronted by judgments in their favour which have not been enforced and are still in a situation of uncertainty as regards whether and when those judgments will be enforced. The Court takes note of the settlements reached between the government of the CB Canton and Mr Jasmin Hodžić and Ms Jasmina Mezildžić, but notes that the legal costs ordered by the final judgments have not yet been paid (see paragraph 11 above). Moreover, as already stated above the settlements were concluded almost five years after the judgments in favour of the applicants became final (see, mutatis mutandis, Fuklev v. Ukraine, no. 71186/01, § 85, 7 June 2005).

30.  The domestic judgments under consideration in the present case became final between four and more than seven years ago. Such delays in enforcement were in the past considered to be excessive (see Jeličić, cited above, § 40; Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, § 15; and Runić and Others, cited above, § 21). The Court does not see any reason to depart from that jurisprudence in the present case.

31.  By failing for a considerable period of time to take the necessary measures to comply with the final judgments in the instant case, the authorities deprived the provisions of Article 6 § 1 of all useful effect and also prevented the applicants from receiving the money to which they were entitled. This amounted furthermore to a disproportionate interference with their peaceful enjoyment of possessions (see, among others, Khachatryan v. Armenia, no. 31761/04, § 69, 1 December 2009, and Voronkov v. Russia, no. 39678/03, § 57, 30 July 2015). Therefore, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto on account of the non‑enforcement of final and enforceable domestic judgments in the applicants’ favour.

III.  APPLICATION OF ARTICLE 46 OF THE CONVENTION

32.  Article 46 of the Convention provides:

“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

33.  The violation which the Court has found in the present case affects many people (see paragraph 24 above). There are already more than four hundred similar applications pending before the Court. Therefore, before examining the applicants’ individual claims for just satisfaction under Article 41 of the Convention, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004‑II, and Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts)). The State is obliged to take such measures also in respect of other persons in the applicants’ position, notably by implementing the general measures indicated by the Constitutional Court in the decisions of 17 September 2014 and 26 February 2015 (see, by analogy, Karanović v. Bosnia and Herzegovina, no. 39462/03, § 28, 20 November 2007 and Čolić and Others, cited above, § 17).

34.  As regards the other similar applications lodged with the Court before the delivery of the present judgment, subject to their notification to the Government under Rule 54 § 2 (b) of the Rules of the Court, the Court considers that the respondent State must grant adequate and sufficient redress to all applicants. Such redress may be achieved through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements and, notably, in accordance with the criteria set out in paragraphs 36 and 38 below (see Burdov v. Russia (no. 2), no. 33509/04, § 145, ECHR 2009-I; and Čolić and Others, cited above, § 18).

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

35.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

36.  In respect of pecuniary damage, the applicants sought the payment of the outstanding judgment debt. The Court reiterates that the most appropriate form of redress in non-enforcement cases is indeed to ensure full enforcement of the domestic judgments in question (see Jeličić, cited above, § 53, and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, § 31, 18 December 2007). This principle equally applies to the present case. As regards Mr Jasmin Hodžić and Ms Jasmina Mezildžić, they still remain entitled to recover the amount of legal costs ordered by final domestic judgments in their favour.

37.  Furthemore, the applicants claimed 1,500 euros (EUR) each in respect of non-pecuniary damage. The Government considered the amount claimed to be excessive.

38.  The Court accepts that the applicants suffered distress, anxiety and frustration as a result of the respondent State’s failure to enforce final domestic judgments in their favour. Making its assessment on an equitable basis, as required by Article 41 of the Convention, it awards EUR 1,000, plus any tax that may be chargeable, to each of the applicants.

B.  Costs and expenses

39.  The applicants claimed EUR 716 each for cost and expenses incurred before the Constitutional Court and before the Court. In addition to that, Ms Simović, Mr Burek, Mr Jurić, Ms Kurtović, Mr Sunulahpašić, Mr Ugarak, Mr Hodžić and Ms Mezildžić each claimed EUR 62 for costs and expenses incurred in the domestic enforcement proceedings.

40.  The Government considered the amounts claimed to be excessive.

41.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the breaches found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met.

42.  In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500, to each of the applicants, covering costs incurred domestically before the Constitutional Court and before this Court. As regards the costs incurred in the domestic enforcement proceedings, claimed by Ms Simović, Mr Burek, Mr Jurić, Ms Kurtović, Mr Sunulahpašić, Mr Ugarak, Mr Hodžić and Ms Mezildžić, the Court notes that they are integral part of the applicants’ pecuniary claim which has already been dealt with above.

C.  Default interest

43.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Declares the applications admissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5.  Holds

(a)  that the respondent State is to secure payment of legal costs ordered by final domestic judgments in favour of Mr Jasmin Hodžić and Ms Jasmina Mezildžić, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention;

(b)  that the respondent State is to secure full enforcement of the domestic judgments under consideration in the present case concerning the remaining applicants, less any amount which may have already been paid on that basis, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention; and

(c)  in addition, that the respondent State is to pay all the applicants, within the same period, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, to each of the applicants, in respect of non-pecuniary damage;

(ii)  EUR 500 (five hundred euros), plus any tax that may be chargeable, to each of the applicants, in respect of costs and expenses;

(d)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Andrea Tamietti Ganna Yudkivska
Deputy Registrar President

APPENDIX

[1].  The convertible mark (BAM) uses the same fixed exchange rate to the euro (EUR) that the German mark (DEM) has (EUR 1 = BAM 1.95583).