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EVROPSKI SUD ZA LJUDSKA PRAVA
ĈETVRTI ODJEL
PREDMET JAKOVLJEVIĆ I DRUGI protiv BOSNE I HERCEGOVINE
(Aplikacija br. 51227/16)
PRESUDA
STRASBOURG
23.07.2019. godine
Ova presuda je konačna ali su u njoj moguće uredničke izmjene.
U predmetu Jakovljević i drugi protiv Bosne i Hercegovine, Evropski sud za ljudska prava (Ĉetvrti odjel), zasijedajući kao odbor u sastavu:
Iulia Antoanella Motoc, predsjednica,
Faris Vehabović,
Péter Paczolay, sudije,
i Andrea Tamietti, zamjenik registrara Odjela,
nakon vijećanja zatvorenog za javnost održanog 02.07.2019. godine, donio je slijedeću presudu koja je usvojena navedenog datuma:
POSTUPAK
ĈINJENICE
I OKOLNOSTI SLUĈAJA
A. Postupak izvršenja
B. Postupak pred Ustavnim sudom
C. Kriviĉni postupak
II RELEVANTNO DOMAĆE PRAVO
PROPISI
I NAVODNA POVREDA ĈLANA 6. stav 1. KONVENCIJE I ĈLANA 1. PROTOKOLA br. 1
Ĉlan 6. stav 1.
„Prilikom odluĉivanja o njegovim gradjanskim pravima i obavezama ... svako ima pravo na ...sudjenje u razumnom roku....pred ...sudom “
Ĉlan 1. Protokola br. 1
„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 uvjetima 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 regulirala korištenje imovine u skladu s općim interesom ili kako bi osigurala plaćanje poreza ili drugih doprinosa ili kazni.“
A. Dopuštenost
1. Prva pritužba podnositelja aplikacije
2. Druga pritužba podnositelja aplikacije
B. Meritum
1. Argumenti stranaka
2. Period koji je potrebno uzeti u obzir
3. Ocjena Suda
II NAVODNA POVREDA ĈLANA 13. KONVENCIJE
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 pisanom obliku dana 23.07.2019. godine, u skladu s pravilom 77. stavovi 2. i 3. Pravila Suda.
Andrea Tamietti zamjenik registrara Iulia Antoanella Motoc predsjednica
|
Br. |
Podnositelj aplikacije |
Godina rodjenja Prebivalište Državljanstvo |
|
1. |
Andjelka JAKOVLJEVIĆ |
1970 / Jajce / Bosne i Hercegovine |
|
2. |
Andja BAKOVIĆ |
1951 / Jajce / Bosne i Hercegovine |
|
3. |
Celija BARIŠIĆ |
1954 / Jajce / Bosne i Hercegovine |
|
4. |
Faruk BEGOVIĆ |
1976/ Jajce / Bosne i Hercegovine |
|
5. |
Senija BEGOVIĆ |
1957 / Jajce / Bosne i Hercegovine |
|
6. |
Lutvija BEHARIĆ |
1953 / Jajce / Bosne i Hercegovine |
|
7. |
Zijad BEHARIĆ |
1951 / Jajce / Bosne i Hercegovine |
|
8. |
Mara BEŠLIJA |
1947 / Jajce / Bosne i Hercegovine |
|
9. |
Senija ĆANO |
1951 / Jajce / Bosne i Hercegovine |
|
10. |
Marko ĈAVAR |
1954 / Jajce / Bosne i Hercegovine |
|
11. |
Amela ĈELALIĆ |
1978 / Jajce / Bosne i Hercegovine |
|
12. |
Nasima ĆOSIĆ |
1954 / Jajce / Bosne i Hercegovine |
|
13. |
Sedina CRNKIĆ |
1956 / Jajce / Bosne i Hercegovine |
|
14. |
Derviša GLUHIĆ |
1956 / Jajce / Bosne i Hercegovine |
|
15. |
Manda HAJDER |
1965 / Jajce / Bosne i Hercegovine |
|
16. |
Amela HALABA |
1979 / Jajce / Bosne i Hercegovine |
|
17. |
Šemsa JAŠAREVIĆ |
1956 / Jajce / Bosne i Hercegovine |
|
18. |
Ruža JELICA |
1964 / Jajce / Bosne i Hercegovine |
|
19. |
Enisa JUSIĆ |
1963 / Jajce / Bosne i Hercegovine |
|
20. |
Sabiha KARABAŠIĆ |
1966 / Jajce / Bosne i Hercegovine |
|
21. |
Ana LADAN |
1949 / Jajce / Bosne i Hercegovine |
|
22. |
Andja LADAN |
1952 / Jajce / Bosne i Hercegovine |
|
23. |
Svjetlana LADAN |
1966 / Jajce / Bosne i Hercegovine |
|
24. |
Aida MAGLIĆ |
1959 / Jajce / Bosne i Hercegovine |
|
25. |
Ajša MALKOĈ |
1949 / Jajce / Bosne i Hercegovine |
|
26. |
Slavica MARJANOVIĆ |
1973 / Jajce / Bosne i Hercegovine |
|
27. |
Azra NEŠUST |
1958 / Jajce / Bosne i Hercegovine |
|
28. |
Đevahira ŠAHIĆ |
1956 / Jajce / Bosne i Hercegovine |
|
29. |
Ana SAMARDžIĆ |
1963 / Jajce / Bosne i Hercegovine |
|
30. |
Halida TUTIĆ |
1957 / Jajce / Bosne i Hercegovine |
|
31. |
Ljiljana VUJIĈIĆ- PETROVIĆ |
1951 / Jajce / Bosne i Hercegovine |
|
32. |
Nela ZJAJO |
1968 / Jajce / Bosne i Hercegovine |
___________________________________
Prevod presude preuzet sa https://hudoc.echr.coe.int/
FOURTH SECTION
CASE OF JAKOVLJEVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Application no. 51227/16)
JUDGMENT
STRASBOURG
23 July 2019
This judgment is final but it may be subject to editorial revision.
In the case of Jakovljević and Others v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Iulia Antoanella Motoc, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 2 July 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 51227/16) 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 thirty two nationals of Bosnia and Herzegovina (“the applicants”), on 17 August 2016. Additional personal details are set out in the appendix to this judgment.
2. The applicants were represented by Ms D. Madžo, a lawyer practising in Jajce. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
3. On 13 April 2018 notice of the application was given 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
I. THE CIRCUMSTANCES OF THE CASE
5. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The enforcement proceedings
6. The applicants worked for Borac-R d.o.o. Jajce (hereinafter “Borac-R”), a limited liability company producing textiles. The company was privatised in 2005 and is in the sole ownership of N.R.
7. Under eleven judgments delivered by the Jajce Municipal Court (hereinafter “the Municipal Court”) on 24 February 2009, 23 March 2009 and 29 September 2009, Borac-R was ordered to pay the applicants various sums in respect of unpaid work-related benefits, together with default interest at the statutory rate; it was also ordered to pay their pension contributions and legal costs.
8. Under eleven judgments delivered by the Cantonal Court in Novi Travnik (hereinafter “the Cantonal Court”), on 28 October 2009, 24 November 2009, 2 December 2009 and 24 February 2010, appeals lodged by the applicants were partially upheld in so far as they related to the payment of their health-insurance and legal costs.
9. On 4 and 8 February and 23 March 2010 the applicants lodged requests for the issuance of the writs of execution (rješenje o izvršenju) in their cases.
10. On 12 May 2010 the Municipal Court issued writs of execution for all the applicants.
11. On 17 May 2010 Borac-R lodged an objection (prigovor) against the writs of execution.
12. On 31 May 2010 the applicants lodged a request with the Municipal Court for the undertaking of an urgent inventory and assessment of Borac-R’s movable property, warning the court that burglaries were being committed at Borac-R’s premises.
13. On 2 June 2010 the Municipal Court adopted a decision ordering an inventory to be taken of Borac-R’s movable property.
14. By a judgement of 1 July 2010 the Municipal Court rejected an objection against that decision lodged by Borac-R. On 16 July 2010 Borac-R appealed against that judgment.
15. On 3 August 2010 the applicants lodged a request for the acceleration of the enforcement proceedings.
16. On 6 September 2010 the Municipal Court issued an order imposing a charge on Borac-R’s movable property (pljenidbeni popis), which was carried out on 24 September 2010. The most valuable movable property consisted of various machines used for producing textiles. On the same date the court bailiff changed the locks on Borac-R’s premises, as N.R., the owner of Borac-R (see paragraph 6 above), refused to open them.
17. On 8 December 2010 the Cantonal Court upheld an appeal lodged by Borac-R and quashed the decision of the Municipal Court of 1 July 2010, and remitted the case for reconsideration.
18. On 13 July 2011 the Municipal Court partially accepted the objection of Borac-R (see paragraph 11 above) in so far as it related to the statutory interest on the contributions for health-insurance of the applicants.
19. On 26 September 2011 the court bailiff lodged a criminal complaint with the Jajce Police Department against unknown individuals for damaging numerous machines and stealing various items that had been stored on Borac-R’s premises. He stated that the alleged offences had been committed over the previous four months and assessed the damage to the machines as amounting to 12,700 convertible marks (BAM),[1] but could not assess the value of the damage to the electrical installations. He furthermore stated that over the previous “eight to ten months” Borac-R’s premises had not had any physical security “or any other form of protection”, since the enforcement debtor was subject to court proceedings.
20. On 5 October 2011 the court bailiff, accompanied by the police, again inspected Borac-R’s premises and noted that the entrance door had been ripped open, but did not note that anything had been stolen, apart from those missing items already noted on 26 September 2011 (see paragraph 19 above).
21. On 13 October 2011 the first public auction of Borac-R’s movable property was held, but it was unsuccessful.
22. On 17 October 2011 the applicants lodged a request for the holding of a second public auction.
23. On 9 November 2011 the court bailiff lodged a criminal complaint with the Jajce Police Department against unknown individuals for damaging one of the machines of Borac-R and for ripping electrical cables from one of the walls. He assessed the damage as amounting to a value of BAM 700. He reiterated that Borac-R’s premises did not have any form of protection.
24. On 10 November 2011 the court bailiff ordered the closure of all entries to Borac-R’s premises in order to prevent any further burglaries.
25. On 15 December 2011 a second public auction of Borac-R’s movable property was held; a portion of the movable property was sold for the total sum of BAM 19,425. The court bailiff, after consultation with the judge, then terminated the auction owing to disturbances caused by Borac‑R’s attorney.
26. On 16 December 2011 and 2 April, 21 September, and 1 and 18 October 2012 the applicants initially lodged requests with the Municipal Court for the continuation of the second public auction, but subsequently also requested that those requests be dealt with urgently in the light of the burglaries being committed in respect of Borac-R’s property. With the last request the applicants submitted a report by Jajce Police Department dated 21 September 2012 on all the burglaries committed against Borac-R until that point.
27. On 29 August 2012 the court bailiff lodged a criminal complaint with the Jajce Police Department against unknown individuals for damaging a large number of machines during the period from 15 July 2012 until that point. He stated that he could not assess the value of the damage before a new inventory was made.
28. On 14 September 2012 the Municipal Court delivered a decision ordering the continuation of the second public auction.
29. On 15 October 2012 the continuation of the second public auction was realised. The applicants bought all of the movable property that was on offer for BAM 20,000, but without depositing (pursuant to section 92 of the 2003 Enforcement Procedure Act)[2] the sale price with the court.
30. On 19 October 2012 the Municipal Court delivered a decision on the award (rješenje o dosudi) regarding the items bought by the applicants, and that the handing over of those items would also be undertaken during a weekend, because the frequency of burglaries at the premises of Borac-R indicated a danger that those items could be damaged or stolen.
31. On 11 March, 7 May and 6 September 2013 the applicants lodged requests with the Municipal Court for the continuation of the enforcement proceedings through the making of a new inventory, the undertaking of an assessment, and the sale of that movable property not already sold; they also reminded the court of the burglaries that had already been committed.
32. On 29 May 2013 the Municipal Court delivered a decision ordering the partial settlement (djelimično namirenje) of the applicants’ claims from the items acquired at the 15 October 2012 auction (see paragraph 28 above) in the equal amount of BAM 625 for each applicant.
33. On 24 September 2013 the Municipal Court rejected a request lodged by the applicants for the continuation of the enforcement proceedings, concluding that the applicants’ claims had already been met through the 29 May 2013 decision on partial settlement. On 1 October 2013 the applicants lodged an objection against that decision.
34. On 7 October 2013 the Municipal Court delivered a decision ordering the partial settlement of the claims of S.L. (another of Borac-R’s judgment creditors) – in the amount of BAM 17,745 on the basis of the priority of his claim – from the proceeds of the auction of 15 December 2011 (see paragraph 25 above).
35. On 10 December 2013 and 19 March 2014 the applicants lodged requests with the Municipal Court for an urgent decision on their objection against its decision of 24 September 2013 (see paragraph 33 above).
36. On 21 March 2014 the Municipal Court rejected the applicants’ objection.
37. On 1 April 2014 the applicants appealed against that decision.
38. On 3 September 2014 the Cantonal Court upheld the applicants’ appeal, quashed the decision of the Municipal Court of 21 March 2014 (see paragraph 36 above), and remitted the case for reconsideration. The court found that the applicants’ claims were much higher than the amount awarded to them in the partial settlement (see paragraph 32 above).
39. On 4 December 2014 the Municipal Court quashed its initial decision of 24 September 2013 (see paragraph 33 above), and allowed the continuation of the enforcement proceedings through the making of a new inventory, undertaking an assessment, and the sale of the movable property of Borac‑R. The court noted that it was aware of the burglaries that had been committed against Borac-R, but indicated that it could not be held responsible for them. It indicated that the applicants were invited to take the possession of the movable property of Borac-R for safekeeping (pursuant to section 122 of the 2003 Enforcement Procedure Act), including the machines, but that they had refused, as they argued that they had nowhere to store them.
40. On 23 January 2015 the Municipal Court delivered a decision ordering the court bailiff to make an inventory, assessment and charge on Borac-R’s movable property within fifteen days.
41. On 30 January 2015 the court bailiff inspected the premises of Borac-R and determined that the items found there had been completely devastated and destroyed and that no valuable movable property was present that could be subject to enforcement.
42. On 15 December 2015 the Municipal Court terminated the enforcement proceedings in respect of Borac-R’s movable property, as the applicants had not proposed that enforcement be continued in that respect.
43. In the meantime, on 28 April 2015 the applicants proposed a new means of enforcement, lodging a request for the imposition of charge and transfer of Borac-R’s claim, in the amount of BAM 8,872 with statutory interest, against N.R. (as the owner of Borac-R). That sum represented 50% of the amount that Borac-R and N.R. jointly owed to S.L. (see paragraph 34 above), who had received the full amount of this claim only from Borac-R in the enforcement proceedings. The applicants considered that Borac-R, as their debtor, thus had a statutory right to compensation from N.R.
44. On 30 June 2015 the Municipal Court refused the applicants’ request. The court reasoned that Borac-R had a right of redress in respect of N.R., but that it could be realised only in separate civil proceedings, and only if Borac-R decided to initiate them; until such proceedings were finalised the applicants could not request the transfer of such a claim against N.R. himself.
45. On 14 July 2015 the applicants lodged an objection against that decision.
46. On 22 September 2015 the applicants brought an action against N.R., since Borac-R had failed itself to initiate civil proceedings against N.R. (they considered that failure to be prejudicial to their interests – see paragraph 44 above).
47. On 15 December 2015 the Municipal Court rejected the applicants’ objection of 14 July 2015 (see paragraph 45 above).
48. On 12 January 2016 the applicants appealed against that decision.
49. On 22 December 2016 the Cantonal Court upheld the applicants’ appeal, quashed the decision of the Municipal Court of 15 December 2015 (see paragraph 47 above), and remitted the case for reconsideration.
50. On 14 April 2017 the applicants submitted a request for the urgent adoption of an enforcement decision in their case.
51. On 26 December 2017 the Travnik Municipal Court dismissed the applicants’ action (see paragraph 46 above). It appears that the applicants did not appeal against this decision.
52. On 10 January 2018 the Municipal Court allowed the applicants’ request of 28 April 2015 (see paragraph 43 above).
53. On an unspecified date Borac-R and N.R. lodged separate appeals against that decision, arguing that the claim requested by the applicants did not exist.
54. On 15 March 2018 the Cantonal Court rejected the appeals. It explained that the decision in the enforcement proceedings had not transferred Borac-R’s claim to the applicants, but rather had granted them the right to request it. If N.R. were to fail to accede to such a request, the applicants would have to initiate separate civil proceedings against him.
55. On 2 July 2018 the Municipal Court informed the applicants that N.R. had not lodged with it a claim that was subject to enforcement.
56. According to the information provided by the applicants on 31 October 2018, the enforcement proceedings in the applicants’ case ended on 2 July 2018 (see paragraph 55 above).
B. The constitutional proceedings
57. On 28 May 2015 the applicants lodged an appeal with the Constitutional Court.
58. On 3 February 2016 the Constitutional Court rejected that appeal. The court found that the enforcement proceedings were relatively complex, that they were of great importance for the applicants, and that they had not in any way contributed to their length. However, it considered that the courts had not prolonged the proceedings, and that there were “objective circumstances” – namely the burglary of Borac-R’s property – that had contributed to the length of the proceedings.
C. Criminal proceedings
59. On 7 July 2014 the Municipal Court found D.B. guilty of committing the criminal offence of aggravated burglary against Borac-R on 6 December 2013. It gave him a five-month suspended prison sentence, with a probation period of one year.
60. On 24 April 2015 the Municipal Court found M.T., M.B. and T.B. guilty of committing the criminal offence of burglary against Borac-R on 29 September 2013. It gave them three-month suspended prison sentences, with probation periods of one year.
61. On 28 September 2015 the Municipal Court found H.K. and M.T. guilty of committing a criminal offence of burglary against Borac-R on 17 and 24 February 2015. It gave them suspended three-month prison sentences, with probation periods of one year. On 16 May 2016 the Cantonal Court partially upheld an appeal lodged by the cantonal prosecutor’s office in relation to M.T., and sentenced him to five months imprisonment.
62. On 1 November 2016 the Municipal Court found M.B. and M.J. guilty of committing the criminal offence of burglary against Borac-R on 26 March 2015. It gave M.J. a suspended prison sentence of three months, with a probation period of one year; it sentenced M.B. to three months in prison.
63. On 26 June 2014 the Jajce Police Department submitted a report to the cantonal prosecutor’s office against M.M., after a criminal complaint was lodged against him for a burglary allegedly committed against Borac-R on 27 May 2014. It appears that no criminal proceedings were initiated in this regard.
64. On 2 September 2015 the Jajce Police Department submitted a report to the cantonal prosecutor’s office against A.O. and H.K., after a criminal complaint was lodged against them for an aggravated burglary allegedly committed against Borac-R on 8 July 2015. It appears that no criminal proceedings were initiated in this regard.
65. According to the information provided by the Government on 17 September 2018, on that date the individuals against whom criminal complaints were lodged by the court bailiff for burglaries committed against Borac-R in 2011 and 2012 (see paragraphs 19, 23 and 27 above) had not yet been identified.
II. RELEVANT DOMESTIC LAW
66. The 2003 Enforcement Procedure Act specifically provides that all enforcement proceedings are “urgent” (section 5). Monetary claims (such as those lodged in the course of the present case) are enforced in chronological order (section 66). Similarly, if a creditor requests that his or her claim be enforced against the movable or immovable property of a debtor, he or she is issued with an order imposing a charge on the property in question; in such cases the creditor with the oldest charging order will be paid first (sections 98, 124 and 134). If the buyer of the property is the judgment creditor, and there are no other creditors who have chronologically prior claims, he is not obligated to deposit the sale price to the court up to the level of his claim (section 92).
67. Section 122 provides that the court bailiff must leave inventoried items with the judgment debtor for safekeeping, unless, upon an application lodged by the judgment creditor, the court has ordered that the objects be given for safekeeping to the judgment creditor or a third party. In the latter situation the judgment creditor will bear the risk of destruction or damage to the objects given to him or her or a third person for safekeeping, unless such destruction or damage was a consequence of force majeure. It furthermore provides that cash, securities and other valuable items are to be stored in the court safe, as well as other items of greater value if they are suitable for such safekeeping.
68. Section 44 provides that the court bailiff is authorised to remove an individual who impedes the enforcement procedure, and the police are required to provide the bailiff with all necessary assistance. If it proves necessary, the court bailiff may order the use of force against such an individual.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
69. The applicants raised two separate, although related, complaints: they claimed (1) that the State should be held responsible for their inability to have the judgments at issue enforced because it had failed to protect the movable property belonging to Borac-R (hereinafter, “the applicants’ first complaint”); and (2) that even assuming that the State could not be blamed in that respect, it should be held responsible for the delays in the enforcement proceedings and their excessive length (hereinafter, “the applicants’ second complaint”). They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... 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 applicants’ first complaint
70. The Government raised a number of objections. The Court considers that there is no need to examine them because this complaint is, in any event, manifestly ill-founded, for the following reasons.
71. The Court notes that the enforcement in the applicants’ case was against a private company. In that connection, it reiterates that the State’s responsibility for the enforcement of a judgment against a private party extends no further than the involvement of State bodies, including the domestic courts, in the enforcement procedures (see Fuklev v. Ukraine, no. 71186/01, § 67, 7 June 2005). The Court’s only task is to examine whether the measures applied by the authorities in the present case were adequate and sufficient (see Orel v. Croatia (dec.), no. 51506/13, § 70, 7 June 2013).
72. The Court observes that only a small part of the applicants’ claim was satisfied (see paragraph 32 above) and that on the date of the latest information available to the Court (see paragraph 56 above), the remaining part of the debt had not yet been honoured. The applicants suggested that failure to pay their credit was at least partly due to the theft and deterioration of the movable property of their debtor, Borac-R (see paragraph 69 above).
73. In this respect, the Court observes that the relevant legislation provided for the possibility of storing movable property subject to enforcement in the court safe, if they were suitable for such safekeeping (see paragraph 67 above). Owing to the nature of the most valuable movable property of Borac-R, which consisted of numerous machines (see paragraph 16 above), it is clear that this condition was not met, and the applicants have not argued otherwise. Indeed, they also refused to take such property for safekeeping themselves, arguing they had nowhere to store it (see paragraph 39 above). The question remains as to whether the domestic authorities have taken measures that could be considered adequate and sufficient for the protection of such property.
74. The Court observes that the domestic authorities undertook a number of measures to safeguard the property of Borac-R during the enforcement proceedings. These included the court bailiff changing the locks on the premises of Borac-R, as well as undertaking necessary repairs (see paragraphs 16 and 24 above). The bailiff also lodged criminal complaints with the police authorities in respect of all burglaries committed against the property of Borac-R (see paragraphs 19, 23 and 27 above). Even though those complaints have not resulted in criminal prosecutions, there are no reasons to believe that this was due to the deficiencies in the criminal investigations, and the applicants have not provided any evidence to the contrary. Indeed, the authorities have prosecuted and sentenced a number of suspects in relation to the later incidents of burglaries committed against the property of Borac-R (see paragraphs 59-62 above).
75. Having regard to the foregoing considerations, the Court cannot conclude that the measures taken by the authorities in order to protect the movable property of Borac-R during the enforcement proceedings were inadequate and/or insufficient.
76. Accordingly, the applicant’s first complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicants’ second complaint
77. The Court notes that the applicants’ second complaint is 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
1. Arguments of the parties
78. The applicants reiterated their complaint (see paragraph 69 above).
79. The Government maintained that the enforcement proceedings were complex, and that there were no elements indicating that the courts unduly delayed them. They noted that “objective circumstances” – namely burglaries and thefts in respect of Borac-R’s property – had contributed to the length of the proceedings.
2. Period to be taken into account
80. The Court notes that the enforcement proceedings started on 12 May 2010 (see paragraph 10 above), and ended on 2 July 2018 (see paragraph 56 above).
81. The Court is satisfied that the total period to be taken into consideration is eight years, one month and twenty days. Such a length of time in respect of the enforcement proceedings at issue could be justified only under exceptional circumstances.
3. The Court’s assessment
82. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
83. The Court notes that on 3 February 2016 the Constitutional Court held that the length of the enforcement proceedings had not been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention (see paragraph 58 above). The Court disagrees with the finding of the Constitutional Court for the following reasons.
84. At the time of the Constitutional Court’s decision, the enforcement proceedings had already been pending for almost six years. Notably, it took one year and five months for the Municipal Court to hold the first public auction (see paragraphs 10 and 21 above). The second public auction was held shortly thereafter, but it was prematurely terminated owing to the disturbances caused by Borac-R’s attorney (see paragraph 25 above). The Government have not provided any information suggesting that the domestic authorities reacted in any way to that behaviour or used the measures available to them to discipline the participants in the proceedings and ensure that the auction was completed (see, mutatis mutandis, Georgiy Nikolayevich Mikhaylov v. Russia, no. 4543/04, § 68, 1 April 2010). There was a further delay of nine months before the continuation of the second auction (see paragraph 28 above). The Court cannot accept the argument, put forward by the Constitutional Court and repeated by the Government (see paragraphs 58 and 79 above), that the repeated burglaries had prevented the authorities from holding the auctions sooner. It took more than one year and ten months to order a new inventory of the movable property belonging to Borac-R (see paragraphs 31-40 above).
85. The Court notes that the applicants have shown no laxity in the conduct of the proceedings, but have in fact frequently asked the courts to act with urgency. Such requests for the expedition of the enforcement proceedings, even if unanswered, are a factor in their favour (see, mutatis mutandis, Kalanoski v. the former Yugoslav Republic of Macedonia, no. 31391/03, § 26, 17 December 2009).
86. The Court does not consider the conduct of the enforcement proceedings or their overall length to be compatible with the statutory domestic requirement of urgency in enforcement proceedings (see paragraph 66 above). Indeed, by their very nature, such proceedings need to be dealt with expeditiously (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 23, ECHR 2000‑IV and Mužević v. Croatia, no. 39299/02, § 84, 16 November 2006), particularly considering the subject matter of the applicants’ claims – namely unpaid salaries and the payment of pension and health-insurance contributions (see paragraph 7 above), which were undoubtedly of great importance to the applicants and where special diligence was necessary (see, mutatis mutandis, Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D, and Obermeier v. Austria, 28 June 1990, § 72, Series A no. 179). The Court reiterates that the State has an obligation to organise a system for the enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (see Fuklev cited above, § 84).
87. Having examined all the material submitted to it, the Court considers that in the instant case the overall length of the enforcement proceedings was excessive.
88. There has accordingly been a breach of Article 6 § 1 of the Convention.
89. In view of the conclusion above and of the fact that the applicants’ grievances under Article 1 of Protocol No. 1 are the same as those already examined under Article 6 § 1 of the Convention, the Court does not consider it necessary to determine whether there has also been a breach of former provision (see, mutatis mutandis, Di Pede v. Italy, 26 September 1996, § 35, Reports of Judgments and Decisions 1996‑IV).
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
90. Lastly, the applicants cited Articles 13 of the Convention, but failed to substantiate their complaint under this provision.
91. Accordingly, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
92. 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
93. The applicants claimed the total sum of 96,625 euros (EUR) in respect of pecuniary damage, and EUR 3,000 each in respect of non-pecuniary damage.
94. The Government considered those amounts to be excessive.
95. The Court considers that the applicants have not demonstrated the existence of a causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicants sustained some non-pecuniary loss arising from the breaches of the Convention found in this case which cannot be sufficiently compensated for 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 applicants EUR 2,000 each in respect of non-pecuniary damage.
B. Costs and expenses
96. The applicants also claimed the total sum of EUR 1,060 for the costs and expenses incurred before the domestic courts and before the Court.
97. The Government has not contested this amount.
98. 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 in connection with the violation found and is reasonable as to quantum. 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)). Even though the applicants have not fully complied with these criteria, since the Government have not contested the amount of costs and expenses, the Court considers it reasonable to award the applicants jointly the sum claimed.
C. Default interest
99. 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 complaint about the length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that it is not necessary to consider whether there has been a violation of Article 1 of Protocol No. 1 to the Convention;
4. Holds,
(a) that the respondent State is to pay, 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 2,000 (two thousand euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,060 (one thousand and sixty euros) to the applicants jointly, 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;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 23 July 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Iulia Antoanella Motoc
Deputy Registrar President
APPENDIX
|
No. |
Applicant |
Birth year Place of residence Nationality |
|
Anđelka JAKOVLJEVIĆ |
1970 Jajce Bosnia and Herzegovina |
|
|
Anđa BAKOVIĆ |
1951 Jajce Bosnia and Herzegovina |
|
|
Celija BARIŠIĆ |
1954 Jajce Bosnia and Herzegovina |
|
|
Faruk BEGOVIĆ |
1976 Jajce Bosnia and Herzegovina |
|
|
Senija BEGOVIĆ |
1957 Jajce Bosnia and Herzegovina |
|
|
Lutvija BEHARIĆ |
1953 Jajce Bosnia and Herzegovina |
|
|
Zijad BEHARIĆ |
1951 Jajce Bosnia and Herzegovina |
|
|
Mara BEŠLIJA |
1947 Jajce Bosnia and Herzegovina |
|
|
Senija ĆANO |
1951 Jajce Bosnia and Herzegovina |
|
|
Marko ČAVAR |
1954 Jajce Bosnia and Heregovina |
|
|
Amela ČELALIĆ |
1978 Jajce Bosnia and Herzegovina |
|
|
Nasima ĆOSIĆ |
1954 Jajce Bosnia and Herzegovina |
|
|
Sedina CRNKIĆ |
1956 Jajce Bosnia and Herzegovina |
|
|
Derviša GLUHIĆ |
1956 Jajce Bosnia and Herzegovina |
|
|
Manda HAJDER |
1965 Jajce Bosnia and Herzegovina |
|
|
Amela HALABA |
1979 Jajce Bosnia and Herzegovina |
|
|
Šemsa JAŠAREVIĆ |
1956 Jajce Bosnia and Herzegovina |
|
|
Ruža JELICA |
1964 Jajce Bosnia and Herzegovina |
|
|
Enisa JUSIĆ |
1963 Jajce Bosnia and Herzegovina |
|
|
Sabiha KARABAŠIĆ |
1966 Jajce Bosnia and Herzegovina |
|
|
Ana LADAN |
1949 Jajce Bosnia and Herzegovina |
|
|
Anđa LADAN |
1952 Jajce Bosnia and Herzegovina |
|
|
Svjetlana LADAN |
1966 Jajce Bosnia and Herzegovina |
|
|
Aida MAGLIĆ |
1959 Jajce Bosnia and Herzegovina |
|
|
Ajša MALKOČ |
1949 Jajce Bosnia and Herzegovina |
|
|
Slavica MARJANOVIĆ |
1973 Jajce Bosnia and Herzegovina |
|
|
Azra NEŠUST |
1958 Jajce Bosnia and Herzegovina |
|
|
Đevahira ŠAHIĆ |
1956 Jajce Bosnia and Herzegovina |
|
|
Ana SAMARDŽIĆ |
1963 Jajce Bosnia and Herzegovina |
|
|
Halida TUTIĆ |
1957 Jajce Bosnia and Herzegovina |
|
|
Ljiljana VUJIČIĆ-PETROVIĆ |
1951 Jajce Bosnia and Herzegovina |
|
|
Nela ZJAJO |
1968 Jajce Bosnia and Herzegovina |
[1]. The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.
[2]. Zakon o izvršnom postupku, published in the Official Gazette of the Federation of Bosnia and Herzegovina no. 32/03, amendments published in the same Official Gazette nos. 52/03, 33/06, 39/06, 39/09, 35/12, 46/16 and 36/17 (the Constitutional Court’s decision U 20/16 of 30 March 2017 declared one of the provisions of that Act unconstitutional).
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