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URL: http://www.bailii.org/eu/cases/ECHR/2011/638.html
Cite as: [2011] ECHR 638

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18478/08
by Jusuf ALIBAŠIĆ
against Bosnia and Herzegovina

The European Court of Human Rights (Fourth Section), sitting on 29 March 2011 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 7 December 2007,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jusuf Alibašić, is a citizen of Bosnia and Herzegovina who was born in 1971 and lives in GoraZde. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

A. The circumstances of the case

This is the applicant’s second case before the Court. The facts relevant to this case, as submitted by the parties, may be summarised as follows.

Given his history of mental illness, the applicant was deprived of legal capacity and placed under the guardianship of his half sister in 1998.

From 21 June 1999 until 16 June 2006 he was detained in Zenica Prison Forensic Psychiatric Annex pursuant to the criminal and mental health legislation^¹. In the applicant’s first case, the Court held that from 1 September 2003 until 16 June 2006 the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court (see Tokić and Others v. Bosnia and Herzegovina, nos. 12455/04, 14140/05, 12906/06 and 26028/06, 8 July 2008). He was awarded 15,000 euros for non-pecuniary damage.

On 16 June 2006 the GoraZde Social Work Centre placed the applicant in Drin Social Care Home and on 20 January 2010 in Duje Social Care Home in accordance with the social care legislation^². On 14 September 2010 the Constitutional Court of Bosnia and Herzegovina held that the applicant’s deprivation of liberty had not been “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of the competent civil court. It found also that Article 5 § 4 of the Convention had been breached because of lack of judicial review of the lawfulness of the applicant’s detention.

On 24 November 2010 the competent civil court finally examined the applicant’s case. It ruled that the applicant could not be held in Duje Social Care Home. The applicant was released on 31 January 2011.

COMPLAINTS

The applicant complained of the unlawfulness of his detention in Drin and Duje Social Care Homes and of lack of an effective domestic procedure by which he could challenge its lawfulness. He further claimed that he wanted to get married, but that domestic law did not allow him to do so. He did not rely on any particular Article of the Convention.

THE LAW

1. As regards the psychiatric detention

The Government argued that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention. The applicant did not contest that argument.

The Court recalls that where national authorities have acknowledged, at least in substance, a breach of the Convention and their decision constitutes appropriate and sufficient redress, the applicant concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006).

In the present case, it has not been disputed that the Constitutional Court expressly acknowledged the alleged breach of the Convention and that the applicant was released. Since the applicant failed to claim damages before the Constitutional Court, the Court considers that the acknowledgment of a violation was, in itself, appropriate and sufficient redress for the purposes of Article 34 (see Lukić v. Bosnia and Herzegovina (dec.), no. 34379/03, 18 November 2008).

In these circumstances, the applicant can no longer claim to be a victim of the alleged breach. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.

2. As regards the right to marry

The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. As to legal systems which provide constitutional protection for human rights, such as the one of Bosnia and Herzegovina, it is incumbent on the aggrieved individual to test the extent of that protection (see Tokić and Others, cited above, § 59).

The Court has already held that an appeal to the Constitutional Court of Bosnia and Herzegovina is, in principle, an effective domestic remedy for the purposes of Article 35 § 1 of the Convention (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006). The applicant neither used that remedy nor has he shown that it was for any reason inadequate or ineffective in this particular case. Furthermore, the Court sees no special circumstances absolving the applicant from the obligation to use it (see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 IV).

This complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President

1 Zakon o zaštiti osoba sa duševnim smetnjama, published in Official Gazette of the Federation no. 37/01 of 15 August 2001, amendments published in Official Gazette no. 40/02 of 21 August 2002; and Zakon o vanparničnom postupku, published in Official Gazette of the Federation no. 2/98 of 20 January 1998, amendments published in Official Gazette nos. 39/04 of 24 July 2004 and 73/05 of 28 December 2005.

2 Zakon o osnovama socijalne zaštite, zaštite civilnih Zrtava rata i zaštite porodice sa djecom, published in Official Gazette of the Federation no. 36/99 of 6 September 1999, amendments published in Official Gazette nos. 54/04 of 16 October 2004, 39/06 of 26 July 2006 and 14/09 of 11 March 2009; and Zakon o socijalnoj zaštiti, zaštiti civilnih Zrtava rata i zaštiti porodice sa djecom, a consolidated version of this Act published in Official Gazette of the GoraZde Canton no. 7/08 of 9 May 2008.