KALTAK v. BOSNIA AND HERZEGOVINA - 14099/15 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2018] ECHR 761 (25 September 2018)

FOURTH SECTION

CASE OF KALTAK v. BOSNIA AND HERZEGOVINA

(Application no. 14099/15)

JUDGMENT

STRASBOURG

25 September 2018

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

In the case of Kaltak 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. 14099/15) 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 a national of Bosnia and Herzegovina and Slovenia, Mr Mirso Kaltak ("the applicant"), on 3 March 2015.

2. The applicant was represented by Mr V. Dujaković, a lawyer practising in Banja Luka. The Government of Bosnia and Herzegovina Government ("the Government") were represented by their Agent, Ms B. Skalonjić.

3. On 12 December 2016 the application was communicated to the Government. Further to the notification under Article 36 § 1 of the Convention, the Slovenian Government did not wish to exercise their right to intervene in the present case.

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 1956 and lives in Sanski Most.

6. By a judgment of the Banja Luka Court of First Instance of 23 May 2005, which became final on 11 September 2007, the Republika Srpska (an entity of Bosnia and Herzegovina) was ordered to pay the applicant 42,767 convertible marks (BAM) [1] on account of pecuniary damage together with default interest calculated from 23 May 2005 until final payment.

7. On 1 February 2010 the applicant submitted a request for the issuance of the writ of execution in his case, which request he amended on 30 August 2010.

8. On 18 October 2010 the applicant submitted a request for the acceleration of the proceedings before the Banja Luka Court of First Instance.

9. On 15 November 2010 the Banja Luka Court of First Instance issued the writ of execution ( rješenje o izvršenju ).

10 . On 18 March 2011 the Banja Luka Court of First Instance rejected the objections against its decision of 15 November 2010, as well as the applicant's request for the payment of the costs of the enforcement proceedings.

11. On 31 May 2011 the Banja Luka Court of First Instance made certain corrections to its decision of 18 March 2011.

12. On 15 December 2011 the Banja Luka Court of Second Instance quashed the decision of the Banja Luka Court of First Instance of 18 March 2011 and remitted the case for reconsideration.

13. On 26 March 2012 the applicant submitted a request for the acceleration of the proceedings before the Banja Luka Court of First Instance.

14. On 12 April 2012 the Banja Luka Court of First Instance partially granted the objection of the Republika Srpska against the writ of execution.

15. On 23 April 2012 the applicant appealed the decision of the Banja Luka Court of First Instance of 12 April 2012. On 11 June, 13 July, and 21 November 2012, and on 15 January 2013 the applicant submitted further requests for the acceleration of the proceedings before the Banja Luka Court of Second Instance.

16. On 21 January 2013 the Banja Luka Court of Second Instance rejected the applicant's appeal and upheld the decision of 12 April 2012.

17. On 7 October 2014 the Constitutional Court of Bosnia and Herzegovina ruled in favour of the applicant that the enforcement proceedings before the Banja Luka Court of First Instance had not been finalised within a reasonable time. It further ordered the Banja Luka Court of First Instance to urgently expedite the enforcement proceedings in the applicant's case. The Constitutional Court considered this to be sufficient just satisfaction and rejected the applicant's claim for non-pecuniary damage.

18 . On 8 November 2016 the final decision in question was enforced in cash, regarding the principal amount and the statutory default interests. On 5 July 2017 the costs of the enforcement proceedings and related statutory default interests were also fully paid to the applicant.

THE LAW

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

19. The applicant complained that the delayed enforcement of the final and enforceable domestic judgment in his favour violated his rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

20. The relevant provisions of Article 6 of the Convention and Article 1 of Protocol No. 1 read as follows:

Article 6

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public 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 of abuse of the right of individual application

21. The Government argued that the application constitutes an abuse of the right of individual petition, as the applicant failed to inform the Court that the decision rendered in his favour had ultimately been enforced by 8 November 2016 (see paragraph 18 above).

22. The applicant disagreed, indicating that the amounts paid to him had not covered the non-pecuniary damage suffered as a consequence of the delayed enforcement, or the costs of the enforcement proceedings themselves.

23. The Court recalls that according to Rule 47 § 7 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. An application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see, among other authorities, Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006-V). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania , no. 21447/03, §§ 25 and 26, 2 December 2008, and Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

24. Turning to the present case, the Court notes that at the time when the applicant lodged his application, on 3 March 2015, the judgment in his favour had still not been enforced (see, a contrario, Stevančević v. Bosnia and Herzegovina (dec.), no. 67618/09, §§ 27 and 28, 10 January 2017), and that the costs of the enforcement proceedings and the related statutory default interests were themselves paid to the applicant only on 5 July 2017 (see paragraph 18 above), that being after the communication of the case to the Government.

25. In view of the above, the Court cannot conclude that the conduct of the applicant was incompatible with the purpose of the right of individual application as provided for in the Convention, or that it has significantly impeded the proper functioning of the Court. Bearing in mind that the inadmissibility of an application on the ground that it constitutes an abuse of the right of application must remain an exception (see S.A.S. v. France [GC], no. 43835/11, § 68, ECHR 2014 (extracts)), the Court dismisses the Government's objection in this regard.

2. Other grounds for inadmissibility

26. The Court further 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 accordingly declares it admissible.

B. Merits

27. 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).

28. The Court has already found violations of Article 6 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the one in the present case (see, for example, Jeličić , cited above; Čolić and Others v. Bosnia and Herzegovina , nos. 1218/07and 14 others, 10 November 2009; and, in respect of non-enforcement of judgments under a special legal regime of the Republika Srpska's general obligations , Momić and Others v. Bosnia and Herzegovina [Committee], nos. 1441/07and 4 Others, 15 January 2013).

29. 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 to the fact that the final judgment under consideration in the present case had not been enforced for more than six years, the Court considers that there has been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30. 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

31. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage.

32. The Government considered this claim as unsubstantiated and/or excessive.

33. The Court accepts that the applicant has sustained some non-pecuniary loss arising from the breaches of the Convention found in this case which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 1,000 in respect of non-pecuniary damage.

B. Costs and expenses

34. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts and before the Court.

35. The Government considered this amount to be unsubstantiated and excessive.

36. 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. That is, 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 violation found or to obtain redress. 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 covering costs under all heads.

C. Default interest

37. 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 Article 1 of Protocol No. 1;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, 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, in respect of non-pecuniary damage;

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

(b) 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;

4. Dismisses the remainder of the applicant's 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.