CASE OF KUNIĆ 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 a judgment of the Zenica Cantonal Court of 5 February 2007, three judgments of the Tešanj Municipal Court of 30 July 2008, 31 March 2008 and 15 May 2009 and a judgment of the Zenica Municipal Court of 26 April 2007, which became final on 5 February 2007, 18 August 2008, 23 March 2009, 25 June 2010 and 27 March 2008, respectively, the Zenica-Doboj Canton (Zeničko-dobojski kanton; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants different 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 on 2 March 2007, 5 April 2010, 2 March 2010, 14 December 2010 and 24 June 2008, respectively, by the Zenica Municipal Court and the Tešanj Municipal Court, were transferred to the competent bank and were listed among the charges on the debtor’s account. 7. On several occasions thereafter the bank informed the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent. 8. On 12 July 2008 the first applicant, Mr Suljo Kunić, complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). 9. On 12 October 2011 (decision no. AP 2110/08) the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in Mr Suljo Kunić’s and ten other cases on account of the prolonged non-enforcement of the final judgments in the appellants’ favour. It ordered the government of the Zenica-Doboj 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. The relevant part of the decision reads as follows: “39. ... 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. ... 45. 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’ ... 46. 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 ... In 2010 and 2011 the amount of funds for that purpose in the budget of the Zenica-Doboj Canton was 100,000 convertible marks. ... 48. The court finds that the crux of the problem in the present case is that the Zenica-Doboj 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 Zenica-Doboj Canton would ensure the respect of its obligations from Article 6 §1 and Article 1 of Protocol No. 1 to the Convention. ... 50. 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... ... 52. In order to comply with its positive obligation, the government of the Zenica-Doboj 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. ... 54. ... The current situation does not give any guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enforced within a reasonable time.” 10. On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 and eight other decisions on the same matter in cases concerning various individual appellants (see paragraph 15 below) had not been enforced. 11. The final judgments in the applicants’ favour have not yet been enforced.