JOSIC v. BOSNIA AND HERZEGOVINA - 48616/14 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2018] ECHR 760 (25 September 2018)

FOURTH SECTION

CASE OF JOSIĆ v. BOSNIA AND HERZEGOVINA

(Application no. 48616/14)

JUDGMENT

STRASBOURG

25 September 2018

This judgment is final but it may be subject to editorial revision.

In the case of Josić v. Bosnia and Herzegovina,

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

Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 4 September 2018,

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

PROCEDURE

1 . The case originated in an application (no. 48616/14) 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 a national of Bosnia and Herzegovina, Mr Franjo Josić ("the applicant"), on 17 June 2014.

2. The applicant was self-represented. The Government of Bosnia and Herzegovina ("the Government") were represented by their Agent, Ms B. Skalonjić

3. On 12 December 2016 the application was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Tuzla.

6. By judgment of the Mostar Municipal Court of 18 June 2009, which became final on 16 December 2010, company R. was ordered to reinstate the applicant in his previous employment, as well as to pay him a total amount of 16,314 convertible marks (BAM) [1] , together with default interest calculated from 20 March 2007 until final payment. The respondent company was further ordered to pay the applicant BAM 2,641 in respect of legal costs, together with default interest calculated from 18 June 2009 until final payment. Lastly, the respondent company was ordered to cover all pension-related contributions in respect of the applicant between 1 January 2003 and 17 January 2007.

7. On 17 October 2011 the Municipal Court issued a writ of execution ( rješenje o izvršenju ) in this regard.

8. On 23 February 2012, upon the applicant's request, the Municipal Court amended its decision of 17 October 2011 by changing the object of enforcement.

9. On 16 January 2012 the Municipal Court requested the respondent to indicate why it had not reinstated the applicant. On 23 January 2012 it fined the respondent in this connection.

10. On 1 February 2013 the Municipal Court joined the enforcement proceedings in the applicant's case with an earlier enforcement procedure against the respondent.

11 . On 25 June 2014 the Constitutional Court of Bosnia and Herzegovina found a violation of the applicant's right to enforcement within a reasonable time, and ordered the Municipal Court to urgently finalise the enforcement proceedings. The Constitutional Court considered this to be sufficient just satisfaction and rejected the applicant's claim for non-pecuniary damage. The decision of the Constitutional Court was served on the applicant on 15 August 2014.

12 . On 18 March 2015 the Municipal Court ordered the sale of the respondent's property. On 27 April 2015 it transferred the respondent's real estate to company H., the highest ranked judgment creditor. The applicant did not lodge an appeal against this decision.

13 . On 29 March 2016 the Mostar Cantonal Court quashed the decision of the Municipal Court of 27 April 2015 and remitted the case for reconsideration.

14 . According to the latest information provided by the parties on 28 July 2017, on that date the enforcement proceedings in the applicant's case were still pending.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

15. The applicant complained that the non-enforcement of the final and enforceable domestic judgment rendered in his favour had violated his rights under Article 6 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:

Article 6

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ..."

Article 1 of Protocol No. 1

"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 objection that the application was submitted out of time

16. The Government maintained that the application was inadmissible for failure to comply with the six-month time-limit. They noted that the decision of the Constitutional Court of Bosnia and Herzegovina was served on the applicant on 15 August 2014 (see paragraph 11 above), while his application was lodged on 18 May 2015.

17. The applicant disagreed.

18. The Court notes that the applicant lodged his application on 17 June 2014 (see paragraph 1 above) and had only supplemented it on 18 May 2015.

19. Having regard to these considerations, the Government's objection must be dismissed.

2. The Government's objection of non-exhaustion of domestic remedies

20. The Government further argued that the applicant had failed to exhaust domestic remedies within the enforcement proceedings, having not lodged an appeal against the decision of the Municipal Court of 27 April 2015 (see paragraph 12 above).

21. The applicant made no comments on this point.

22. The Court notes that the said appeal could not have expedited the enforcement proceedings, and that in any case the decision at issue was subsequently quashed (see paragraph 13 above). For these reasons the Government's objection of non-exhaustion of domestic remedies must also be dismissed.

3. Other grounds for inadmissibility

23. The Court notes that the application is otherwise neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must accordingly be declared admissible.

B. Merits

24. The general principles relating to the non-enforcement or delayed enforcement of final domestic judgments are set out in Hornsby v. Greece (19 March 1997, § 40, Reports of Judgments and Decisions 1997-II) and Jeličić v. Bosnia and Herzegovina (no. 41183/02, §§ 38-39, ECHR 2006-XII).

25. The Court has repeatedly found violations of Article 6 of the Convention and Article 1 of Protocol No. 1 in respect of issues similar to those in the present case (see, for example, Jeličić , cited above, and Čolić and Others v. Bosnia and Herzegovina , nos. 1218/07and 14 others, 10 November 2009).

26. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, and the fact that the final judgment under consideration in the present case had, at the date of the latest information available to the Court (28 July 2017 - see paragraph 14 above) not been enforced for more than six years, the Court considers that in the instant case there has been a breach of Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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

28. The applicant claimed BAM 40,619 in respect of pecuniary damage on account of the accrued interest on his original claims and EUR 4,700 on account of his medical expenses. He did not submit, however, any claim for non-pecuniary damage.

29. The Government considered the amounts claimed to be unsubstantiated and/or excessive.

30. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Furthermore, since the applicant did not make any claim in respect of non-pecuniary damage, there is no call to award him any sum on this account.

B. Costs and expenses

31. The applicant also claimed EUR 2,500 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

32. The Government considered the amount claimed to be unsubstantiated and/or excessive.

33. 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, are reasonable as to quantum and concern proceedings that are related to the violation of the Convention provision found. 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 applicant EUR 100.

C. Default interest

34. 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. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Carlo Ranzoni
Deputy Registrar President

[1] The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.