CASE OF SPAHIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
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) 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.