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EVROPSKI SUD ZA LJUDSKA PRAVA
ĈETVRTI ODJEL
PREDMET ZAHIROVIĆ I DRUGI protiv BOSNE I HERCEGOVINE
(Aplikacije br. 4954/15, 7294/15, 7311/15, 7356/15, 7419/15, 7434/15 i 10758/15)
PRESUDA
STRASBOURG
16.10.2018. godine
Ova presuda je konačna, ali su u njoj moguće uredničke izmjene.
U predmetu Zahirović i drugi protiv Bosne i Hercegovine, Evropski sud za ljudska prava (Ĉetvrti odjel), zasijedajući kao odbor u slijedećem sastavu:
Carlo Ranzoni, predsjednik,
Faris Vehabović,
Péter Paczolay, sudije,
i Andrea Tamietti, zamjenik registrara Odjela,
nakon vijećanja na sjednici zatvorenoj za javnost, dana 25.09.2018. godine, donio je slijedeću presudu koja je usvojena navedenog datuma:
POSTUPAK
ĈINJENICE
I OKOLNOSTI SLUĈAJA
Isplate izvršene u korist aplikanata ukljuĉuju i troškove izvršnog postupka.
II RELEVANTNO DOMAĆE PRAVO
A. Zakon o izvršnom postupku Federacije Bosne i Hercegovine iz 2003. godine
B. Zakon o steĉajnom postupku Federacije Bosne i Hercegovine iz 2003. godine
PRAVO
I SPAJANJE APLIKACIJA
II NAVODNA POVREDA ĈLANA 6. STAV 1. KONVENCIJE I ĈLANA 1 PROTOKOLA BR. 1 UZ KONVENCIJU
Ĉlan 6. stav 1. u relevantnom dijelu glasi:
Ĉlan 6.
„Prilikom odluĉivanja o njegovim gradjanskim pravima i obavezama ... svako ima pravo na ...sudjenje u razumnom roku....pred ...sudom“
Ĉlan 1. Protokola br. 1 uz Konvenciju glasi:
„Svaka fiziĉka i pravna osoba ima pravo na neometano uživanje svoje imovine. Niko ne može biti lišen njegove imovine osim kada je to u javnom interesu i u skladu s uslovima propisanim zakonom i općim naĉelima medjunarodnog prava.
Prethodne odredbe, medjutim, ni na koji naĉin ne umanjuju pravo države da primijeni zakone koje smatra potrebnim kako bi regulisala korištenje imovine u skladu s općim interesom ili kako bi osigurala plaćanje poreza ili drugih doprinosa ili kazni.“
A. Dopuštenost
1. Mogu li aplikanti tvrditi da su „žrtve“
2. Ostali osnovi nedopuštenosti
B. Meritum
III PRIMJENA ĈLANA 41. KONVENCIJE
„Ukoliko Sud utvrdi da je došlo do povrede Konvencije ili njenih Protokola, te ukoliko zakonodavstvo visoke ugovorne strane o kojoj je rijeĉ omogućuje samo djelomiĉno obeštećenje, Sud će, po potrebi, odrediti praviĉnu naknadu oštećenoj strani.“
A. Odšteta
B. Troškovi i izdaci
C. Zatezna kamata
IZ NAVEDENIH RAZLOGA, SUD JE JEDNOGLASNO
Saĉinjeno na engleskom jeziku i dostavljeno u pisanoj formi dana 16.10.2018. godine u skladu s pravilom 77. stavovi 2. i 3. Pravila Suda.
Andrea Tamietti Carlo Ranzoni
zamjenik registrara predsjednik
___________________________________
Prevod presude preuzet sa https://hudoc.echr.coe.int/
FOURTH SECTION
CASE OF ZAHIROVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Applications nos. 4954/15, 7294/15, 7311/15, 7356/15, 7419/15, 7434/15 and 10758/15)
JUDGMENT
STRASBOURG
16 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Zahirović and Others 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 25 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in seven applications (nos. 4954/15, 7294/15, 7311/15, 7356/15, 7419/15, 7434/15 and 10758/15) 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 seven citizens of Bosnia and Herzegovina, Mr Mujo Zahirović, Ms Nedžvija Mandara, Mr Miralem Mustajbegović, Mr Nihad Hrnjica, Mr Zijad Džugum, Ms Đevada Hodžić and Mr Fadil Pandžo (“the applicants”), between 13 January 2015 and 23 February 2015.
2. The applicants were represented by Ms H. Kapetan, a lawyer practising in Travnik. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
3. The applicants complained of the non-enforcement of final domestic judgments in their favour.
4. On 7 September 2016 the Government were given notice of the applications.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1968, 1960, 1966, 1962, 1959, 1955 and 1954, respectively, and live in Novi Travnik and Bugojno, Bosnia and Herzegovina.
6. By seven judgments of the Travnik Municipal Court and the Bugojno Municipal Court, of 19 January 2007, 15 May 2008, 19 January 2006, 28 October 2011, 2 February 2009, 1 September 2009 and 9 April 2004, respectively, the applicants’ employers, two companies manufacturing weapons and military technology, were ordered to pay them various sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. The judgments became final on 24 August 2007, 15 May 2008, 19 January 2006, 26 November 2011, 20 August 2009, 13 October 2009 and 13 April 2005, respectively.
7. The applicants’ winding-up petitions were rejected on 27 May 2010 and 14 February 2011, respectively, because the Federal Ministry of Energy had refused authorisation (see paragraph 14 below). Consequently, in accordance with the 2003 Insolvency Act, the Federation of Bosnia and Herzegovina became liable for the debts of the applicants’ employers (see paragraph 14 below).
8. The Sarajevo Municipal Court issued enforcement orders on 9 November 2011, 21 February 2012, 17 April 2012, 25 April 2012, 5 July 2012, 27 March 2012 and 9 August 2012, respectively, in which the Federation of Bosnia and Herzegovina was designated as a debtor. They were transferred to the competent bank and were listed among the charges in the federal budget.
9. On several occasions thereafter the bank informed the competent courts that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.
10. The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).
11. On 17 March 2015 (decision no. AP 2892/13) 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’ cases on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the Federation of Bosnia and Herzegovina to take the necessary steps in order to secure the payment of its debt arising from the final judgments within a reasonable time. Although the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation.
12. On the following dates in 2017 the final judgments in the applicants’ favour were fully enforced:
(i) on 10 January 2017 in respect of Mr Mujo Zahirović;
(ii) on 9 January 2017 in respect of Ms Nedžvija Mandara;
(iii) on 13 April 2017 in respect of Mr Miralem Mustajbegović;
(iv) on 17 January 2017 in respect of Mr Nihad Hrnjica;
(v) on 11 January 2017 in respect of Mr Zijad Džugum;
(vi) on 17 January 2017 in respect of Ms Đevada Hodžić; and
(vii) on 13 April 2017 in respect of Mr Fadil Pandžo.
The payments made in the applicants’ favour included the reimbursement of the costs sustained for the enforcement procedure.
II. RELEVANT DOMESTIC LAW
A. 2003 Enforcement Procedure Act of the Federation of Bosnia and Herzegovina
13. The 2003 Enforcement Procedure Act (Zakon o izvršnom postupku, Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”), nos. 32/03, 52/03, 33/06, 39/06, 39/09, 35/12 and 46/16) provides for the limitation of enforcement of final judgments against the Federation of Bosnia and Herzegovina and the cantons: these will be enforced only within the amount of funds provided for that purpose in the federal and cantonal budgets which cannot be lower than 0,3% of the total budget (section 138 (3) and (6)). The enforcement will be carried out in a chronological order according to the time the judgments became final. The statutory prescription period does not apply to these claims (section 138 (5)).
B. 2003 Insolvency Act of the Federation of Bosnia and Herzegovina
14. Section 5 of the 2003 Insolvency Act (Zakon o stečajnom postupku, OG FBH, nos. 29/03, 32/04, 42/06 and 4/17), provides that a winding-up order may be made against the manufacturers of weapons and military technology with the authorisation of the Ministry of Energy only. If the Ministry refuses authorisation the Federation of Bosnia and Herzegovina becomes liable for the debts of the company.
THE LAW
I. JOINDER OF THE APPLICATIONS
15. Given their common factual and legal background, the Court decides to join these seven applications pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
16. The applicants complained of the non-enforcement of the final domestic judgments in their favour. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
Article 6 § 1, in so far as relevant, provides:
“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 to the Convention reads as follows:
“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.”
17. The Government contested that argument.
A. Admissibility
1. Whether the applicants may claim to be “victims”
18. Although the respondent State did not raise any objection as to the Court’s competence ratione personae, this issue calls for consideration ex officio by the Court (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).
19. The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his victim status unless the national authorities have acknowledged the alleged breach and afforded appropriate and sufficient redress (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 180 and 193, ECHR 2006‑V). The redress afforded by the national authorities must be appropriate and sufficient (see Kudić v. Bosnia and Herzegovina, no. 28971/05, § 17, 9 December 2008). While it is true that the national authorities expressly acknowledged the breach alleged in the present case, the applicants were not able to obtain any compensation in respect of the delayed enforcement of the judgments (see paragraph 11 above). Therefore, they may still claim to be victims within the meaning of Article 34 of the Convention in relation to the period during which the judgments remained unenforced (see Runić and Others v. Bosnia and Herzegovina, nos. 28735/06 and 26 others, § 16, 15 November 2011).
2. Other grounds of inadmissibility
20. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
21. The applicants argued that although the final judgments in question had in the meantime been enforced, there had been a violation of their Convention rights in respect of the time during which the judgments remained unenforced.
22. The Government submitted that some delays in the enforcement of the domestic judgments in question were necessary. The federal government had been faced with a large number of final judgments and had not been able to enforce them all at once without jeopardising its macroeconomic stability and fiscal sustainability.
23. The general principles relating to the non-enforcement of domestic judgments were set out in Jeličić v. Bosnia and Herzegovina (no. 41183/02, §§ 38-39, ECHR 2006‑XII). Notably, the Court has held that it is not open to authorities to cite lack of funds as an excuse for not honouring a judgment debt (see, also, Spahić and Others v. Bosnia and Herzegovina, nos. 20514/15 and 15 others, § 25, 14 November 2017, and Kunić and Others v. Bosnia and Herzegovina, nos. 68955/12 and 15 others, § 26, 14 November 2017). 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 (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III, and Teteriny v. Russia, no. 11931/03, § 41, 30 June 2005).
24. In addition, the Court reiterates that the impossibility of obtaining the execution of a final judgment in an applicant’s favour constitutes an interference with his or her right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov, cited above, § 40; Jasiūnienė v. Lithuania, no. 41510/98, § 45, 6 March 2003; and Voytenko v. Ukraine, no. 18966/02, § 53, 29 June 2004).
25. The Court notes that the domestic judgments under consideration in the present case remained unenforced for a period comprised between four and more than five years. Similar delays were in the past considered to be excessive (see Spahić and Others, cited above, § 30; Runić and Others, cited above, § 21; and Jeličić, cited above, § 40). The Court does not see any reason to depart from that jurisprudence.
26. Accordingly, the Court considers that in the present case there has been a breach of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention.
III. 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 applicants claimed 1,500 euros (EUR) each in respect of non-pecuniary damage.
29. The Government submitted that the finding of a violation would constitute sufficient just satisfaction.
30. The Court accepts that the applicants suffered distress, anxiety and frustration as a result of the respondent State’s failure to enforce final domestic judgments in their favour. Making its assessment on an equitable basis, as required by Article 41 of the Convention, it awards EUR 1,000[1], plus any tax that may be chargeable, to each of the applicants.
B. Costs and expenses
31. The applicants claimed EUR 627.99 each for the costs and expenses incurred before the Constitutional Court and the Court. In addition to that, Mr Mustajbegović and Mr Pandžo claimed EUR 248.23 and EUR 187.51, respectively, for the costs and expenses incurred in the domestic enforcement proceedings.
32. The Government considered the amounts claimed to be excessive and unjustified.
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 and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). That is to say, 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 breaches found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 94, ECHR 2013 (extracts)).
34. 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 to each of the applicants, covering costs incurred domestically before the Constitutional Court and before this Court. As regards the costs incurred in the domestic enforcement proceedings, claimed by Mr Mustajbegović and Mr Pandžo, the Court notes that in the meantime, after they had submitted their claims for costs and expenses, the final judgments in their favour were fully enforced. The payments made in their favour included the reimbursement of the costs sustained for the enforcement procedure (see paragraph 12 above).
C. Default interest
35. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
5. Holds
(a) that the respondent State is to pay to each of the applicants, 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 applicants, 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Carlo Ranzoni
Deputy Registrar President
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