FOURTH SECTION
DECISION
Application no. 8039/19
Esad AKELJIĆ against Bosnia and Herzegovina
and 24 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 13 October 2020 as a Chamber composed of:
Yonko Grozev, President,
Faris Vehabović,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Pere Pastor Vilanova,
Tim Eicke,
Jolien Schukking, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. The applicants are nationals of Bosnia and Herzegovina. They were represented by Ms H. Kapetan, a lawyer practising in Travnik.
2. The Government of Bosnia and Herzegovina (“the Government”) were initially represented by their Acting Agent, Ms B. Skalonjić, and then by Mr M. Lučić, Minister of Human Rights and Refugees of Bosnia and Herzegovina.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants were at the relevant time, and most of them still are, public servants on the payroll of the Central Bosnia Canton[1]. Between 2007 and 2015 they obtained domestic judgments ordering the Central Bosnia Canton to pay them various amounts in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. Writs of execution were then issued between 2009 and 2016.
5. Between 2017 and 2019 the applicants obtained Constitutional Court decisions finding a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention and ordering the Central Bosnia Canton to take the necessary measures with a view to securing the enforcement of all domestic judgments against it within a reasonable time (see the Constitutional Court’s leading decision concerning the matter, quoted in paragraph 11 below).
6. At the date of the latest information available to the Court (17 September 2020), none of the judgments indicated in paragraph 4 above had been enforced.Relevant domestic law and practiceCollective Agreement for the Public Service in the Federation of Bosnia and Herzegovina 2000[2]
7. In 2000 the Trade Union of Public Servants and the Government of the Federation of Bosnia and Herzegovina concluded a collective agreement regulating the terms of employment of public servants. In order to develop public service in post-war Bosnia and Herzegovina, it raised the salaries and other benefits (such as meal allowances and bonuses) of public servants. Since some of the cantons had a large number of public servants and insufficient revenue, they had difficulties in complying with the new terms. The Central Bosnia Canton was one of them.
8. The Central Bosnia Canton tried to prevent the accumulation of debt by renegotiating the terms of employment for its public servants, lowering their work-related benefits. However, under the “favourability principle”, which constitutes a key principle of domestic labour law, if a right arising from an employment relationship is regulated differently by different legal instruments, the most favourable right for the employee applies.
9. For the above reasons, the Central Bosnia Canton was unable to comply with the collective agreement until all stakeholders, including the Trade Union of Public Servants, agreed to revise it in 2013 and 2016.Enforcement Procedure Act 2003[3]
10. Section 138 of the Enforcement Procedure Act 2003 provides for a limitation on the enforcement of final judgments against the cantons: they may only be enforced in accordance with the amount of funds designated for that purpose in the cantonal budget, which cannot be lower than 0.3% of the total budget. Enforcements are to be carried out in chronological order according to the date on which the bank in which the relevant canton has an account has been served with a writ of execution.The Constitutional Court’s case-law regarding the non-enforcement of judgments against the Central Bosnia Canton
11. In decision no. AP 3438/12 of 17 September 2014 the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of final judgments against the Central Bosnia Canton. It ordered the cantonal government to take a number of general measures to secure the enforcement of all such judgments within a reasonable time. The relevant part of the decision reads as follows:
“36. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to a lack of funds in the debtor’s bank account.
...
39. The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments ... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. 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’ ...
40. The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects of the global economic crisis on Bosnia and Herzegovina ... The court notes that the federal and cantonal governments have taken certain steps with a view to enforcing final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that final judgments against the Federation and the cantons shall be enforced in accordance with the amount of budgetary funds designated for that purpose ... and that creditors shall enforce their claims in the order in which they acquired the enforcement titles ... In 2012 and 2013 the amount of funds allocated for that purpose in the budget of the Central Bosnia Canton was 560,000 convertible marks and 620,000 convertible marks, respectively.
...
42. The court finds that the crux of the problem in the present case is that the Central Bosnia Canton has not identified the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against the canton. Furthermore, there should be a centralised and transparent database of all the claims listed in chronological order according to the date on which the judgments became final. It should include the enforcement time frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measures and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the Central Bosnia Canton would ensure the fulfilment of its obligations arising from Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
...
44. The court considers that the enactment of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation on the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1, which requires that a fair balance be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ...
...
46. In order to comply with its positive obligation, the government of the Central Bosnia Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
...
47. ... The current situation gives no guarantees to the appellants that their claims against the Central Bosnia Canton will be enforced within a reasonable time.”
12. The Constitutional Court reached the same conclusion in numerous subsequent decisions (for example, decision no. AP 4242/14 of 26 February 2015).
13. On 12 March 2019 the Constitutional Court adopted a pilot decision on the matter. It found that, despite the many decisions rendered by it and the European Court of Human Rights, the Central Bosnia Canton had not yet set an enforcement time frame and had therefore continued to act in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The court reiterated that the cantonal government had to take the necessary steps to secure the enforcement of all judgments within a reasonable time. As regards any non-pecuniary damage caused by the prolonged non-enforcement of judgments, it held that default interest, which was to be paid for each day of non-enforcement, would cover it at least to some extent. Also taking into consideration the general measures indicated in the decision, the court held that the finding of a violation constituted sufficient just satisfaction in respect of moral damage.
14. Referring to the Court’s judgment in Burmych and Others v. Ukraine ((striking out) [GC], nos. 46852/13 and others, 12 October 2017), the Constitutional Court has subsequently rejected all follow-up cases (see, for example, decision no. AP 7446/18 of 13 November 2019). Since the grievances raised in those cases had to be resolved in the context of the general measures required by the execution of the pilot decision, the court concluded that no useful purpose was served by continuing to deal with the matter.Budget of the Central Bosnia Canton in 2019[4]
15. The cantonal budget was 243,075,953 convertible marks (BAM)[5] in 2019. More than half of that amount went to salaries and other work-related benefits of the numerous public servants on its payroll, including some of the applicants in the present case.Default interest and inflation
16. The statutory rate of default interest was 12% until 14 March 2020. As from that date, the rate is 10% (see the Default Interest Rate Act 2020[6]). In the period from 2009 until 2018, consumer prices rose, on average, by 0.7% annually[7].
COMPLAINTS
17. The applicants complained about the non-enforcement of judgments against the Central Bosnia Canton. They relied on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention.
THE LAW
18. The applicants complained about the non-enforcement of the judgments given in their favour. The relevant parts of the provisions relied on by the applicants provide as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1 to the Convention
“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.”Joinder of the applications
19. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).The parties’ submissions
20. The Government informed the Court that the Central Bosnia Canton had introduced on 19 December 2019 an action plan in order to implement the general measures indicated in Spahić and Others v. Bosnia and Herzegovina (nos. 20514/15 and 15 others, § 33, 14 November 2017). A list of 1,612 non-enforced domestic judgments was attached. The plan stated that the debt was almost BAM 51,000,000 and that the judgments would be enforced, in chronological order, by 2032. The Government submitted that the matter had thus been resolved.
21. They also raised some inadmissibility objections. Notably, they maintained that some of the applications were premature since proceedings had still been pending before the Constitutional Court. They further argued that some applicants had failed to act with reasonable expedition for the purposes of the six-month rule.
22. The applicants disagreed with the Government. In particular, they submitted that the enforcement time frame set by the Central Bosnia Canton was unreasonable.The Court’s assessment
23. The Court reiterates that whilst it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III; Teteriny v. Russia, no. 11931/03, § 41, 30 June 2005; and Jeličić v. Bosnia and Herzegovina, no. 41183/02, §§ 39 and 42, ECHR 2006‑XII), the system of staggering the enforcement of final domestic judgments may be accepted in exceptional circumstances (see Đurić and Others v. Bosnia and Herzegovina, nos. 79867/12 and 5 others, § 30, 20 January 2015).
24. In 2017 the Court adopted a leading judgment concerning the non-enforcement of domestic judgments against the Central Bosnia Canton (see Spahić and Others, cited above), finding a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
25. The relevant part of that judgment (§§ 27-31) reads as follows:
“27. In its decisions of 17 September 2014 and 26 February 2015 the Constitutional Court held that a prolonged non-enforcement of final judgments had violated the applicants’ rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The government of the [Central Bosnia] Canton was ordered to take the necessary steps in order to secure the enforcement of final judgments within a reasonable time. The Constitutional Court held, in particular, that the cantonal government should identify the exact number of unenforced judgments and the amount of aggregate debt, and set up a centralised, chronological and transparent database which should include the enforcement time frame and help avoid abuses of the enforcement procedure.
28. The Government submitted that the cantonal government had identified the amount of aggregate debt for 2014 and had kept a record of its liabilities. However, it would appear that the general measures as ordered by the Constitutional Court have not been implemented. It has not been shown that the cantonal government set up a database of all the claims and provided the enforcement time frame. ...
29. Therefore, the applicants’ situation remains unchanged. They are confronted by judgments in their favour which have not been enforced and are still in a situation of uncertainty as regards whether and when those judgments will be enforced. ...
30. The domestic judgments under consideration in the present case became final between four and more than seven years ago. Such delays in enforcement were in the past considered to be excessive (see Jeličić [v. Bosnia and Herzegovina, no. 41183/02], § 40 [, ECHR 2006-XII]; Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 [and 14 others], § 15, 10 November 2009; and Runić and Others [v. Bosnia and Herzegovina, nos. 28735/06 and 26 others], § 21 [, 15 November 2011]). The Court does not see any reason to depart from that jurisprudence in the present case.
31. By failing for a considerable period of time to take the necessary measures to comply with the final judgments in the instant case, the authorities deprived the provisions of Article 6 § 1 of all useful effect and also prevented the applicants from receiving the money to which they were entitled. This amounted furthermore to a disproportionate interference with their peaceful enjoyment of possessions (see, among others, Khachatryan v. Armenia, no. 31761/04, § 69, 1 December 2009, and Voronkov v. Russia, no. 39678/03, § 57, 30 July 2015). Therefore, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto on account of the non‑enforcement of final and enforceable domestic judgments in the applicants’ favour.”
26. Given the number of similar cases, the Court invited the respondent State, under Article 46 of the Convention (ibid., § 33), to solve the problem that had led to the finding of a breach by securing the implementation of the general measures indicated by the Constitutional Court in the decisions of 17 September 2014 and 26 February 2015 (see paragraphs 11-12 above). Since most of the general measures indicated in those decisions had in the meantime been implemented (see Spahić and Others, § 28, quoted in paragraph 25 above), only two general measures still remained to be implemented – that is, the creation of a database of all domestic judgments against the Central Bosnia Canton and the setting of a reasonable time frame for their enforcement.
27. In this connection, the Court observes that the Central Bosnia Canton has recently created a database of all domestic judgments against the Canton and set an enforcement time frame (see paragraph 20 above). It has undertaken to enforce all (more than 1,600) judgments, in chronological order, by 2032. As regards the judgments under consideration in the present case, the plan states that all of them will be enforced by 2030.
28. The Court has already held in a case about the non-enforcement of judgments against another canton (see Muhović and Others v. Bosnia and Herzegovina (dec.), nos. 40841/13 and 12 others, §§ 30-33, 8 October 2020) that an enforcement time frame with a longer duration, where the final date was set in 2041, was acceptable and amounted to an implementation of the general measures it had indicated. There is no reason to take a different approach in the present case.
29. Accordingly, the Court concludes that the matter has been resolved for the purposes of Article 37 § 1 (b) of the Convention (see Muhović and Others, decision cited above, § 34).
30. While there is no doubt that the applicants have suffered some non-pecuniary damage because of the past delays, the Court notes that they are entitled to substantial default interest. In view of the fact that, in Bosnia and Herzegovina, the statutory rate of default interest is significantly higher than the rate of inflation (see paragraph 16 above), the Court agrees with the Constitutional Court that this will alleviate the applicants’ distress at least to some extent (see the finding of the Constitutional Court in this connection in its pilot decision of 12 March 2019, quoted in paragraph 13 above). Furthermore, the Court has held in cases concerning structural problems at domestic level that it was not necessary to order that adequate redress be awarded to all persons affected (see, in particular, Suljagić v. Bosnia and Herzegovina, no. 27912/02, § 64, 3 November 2009, and Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 149, ECHR 2014). Indeed, the Court’s role, after the State has implemented the general measures in conformity with the Convention, cannot be converted into providing individualised financial relief in repetitive cases arising from the same systemic situation (see Zadrić v. Bosnia and Herzegovina (dec.), no. 18804/04, 16 November 2010, and Muhović and Others, decision cited above, § 35).
31. In view of the above, the Court finds that its further examination of the present applications is no longer justified. Moreover, in accordance with Article 37 § 1 in fine, it finds no particular circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, the applications should be struck out of the Court’s list of cases.
32. This conclusion is, however, without any prejudice to the Court’s power to restore, pursuant to Article 37 § 2, the present or any other similar applications to the list of cases if the circumstances justify such a course (see Muhović and Others, decision cited above, § 37).
33. In view of the above conclusion, it is not necessary for the Court to examine the inadmissibility objections raised by the Government (see paragraph 21 above).
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Done in English and notified in writing on 5 November 2020.
Ilse FreiwirthYonko Grozev
Deputy RegistrarPresident
Appendix
No.
Application No.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
1
8039/19
Akeljić v.
Bosnia and Herzegovina
18/01/2019
Esad AKELJIĆ
1969
Travnik
2
8041/19
Puđa v. Bosnia and Herzegovina
18/01/2019
Vlado PUĐA
1971
Travnik
3
8044/19
Hamidović v. Bosnia and Herzegovina
18/01/2019
Benjamin HAMIDOVIĆ
1974
Travnik
4
8054/19
Džepina v. Bosnia and Herzegovina
18/01/2019
Marija DŽEPINA
1966
Travnik
5
8058/19
Sekulić v. Bosnia and Herzegovina
18/01/2019
Srđan SEKULIĆ
1984
Travnik
6
8065/19
Juhić v. Bosnia and Herzegovina
18/01/2019
Mujo JUHIĆ
1974
Busovača
7
8068/19
Nikolić v. Bosnia and Herzegovina
18/01/2019
Zoran NIKOLIĆ
1964
Travnik
8
8072/19
Džepina v. Bosnia and Herzegovina
18/01/2019
Ivica DŽEPINA
1972
Travnik
9
9136/19
Mekić v. Bosnia and Herzegovina
25/01/2019
Jusuf MEKIĆ
1972
Sarajevo
10
10434/19
Kovač v. Bosnia and Herzegovina
01/02/2019
Dragica KOVAČ
1965
Travnik
11
12581/19
Hodžić v. Bosnia and Herzegovina
22/02/2019
Šemsa HODŽIĆ
1977
Bugojno
12
12588/19
Hozić v. Bosnia and Herzegovina
22/02/2019
Sanija HOZIĆ
1956
Gornji Vakuf – Uskoplje
13
12658/19
Kukrica v. Bosnia and Herzegovina
21/01/2019
Đenana KUKRICA
1982
Mostar
14
12710/19
Omanović v.
Bosnia and Herzegovina
21/02/2019
Omer OMANOVIĆ
1955
Prozor-Rama
15
12715/19
Muratspahić v.
Bosnia and Herzegovina
21/02/2019
Emina MURATSPAHIĆ
1964
Bugojno
16
12726/19
Velić v. Bosnia and Herzegovina
21/02/2019
Fazila VELIĆ
1981
Bugojno
17
12743/19
Čulić v. Bosnia and Herzegovina
27/02/2019
Meliha ČULIĆ
1961
Bugojno
18
12744/19
Haznedarević v.
Bosnia and Herzegovina
27/02/2019
Ehlimana HAZNEDAREVIĆ
1959
Bugojno
19
12745/19
Velić v. Bosnia and Herzegovina
20/02/2019
Mihra VELIĆ
1969
Bugojno
20
12747/19
Sulejmanpašić v.
Bosnia and Herzegovina
27/02/2019
Jasmina SULEJMANPAŠIĆ
1943
Bugojno
21
12750/19
Pašanbegović v.
Bosnia and Herzegovina
27/02/2019
Ajla PAŠANBEGOVIĆ
1967
Bugojno
22
12751/19
Bambur v. Bosnia and Herzegovina
27/02/2019
Izet BAMBUR
1968
Bugojno
23
12752/19
Bambur v. Bosnia and Herzegovina
27/02/2019
Emina BAMBUR
1967
Bugojno
24
12754/19
Čusto v. Bosnia and Herzegovina
27/02/2019
Ale ČUSTO
1973
Bugojno
25
12756/19
Čusto v. Bosnia and Herzegovina
27/02/2019
Paša ČUSTO
1960
Bugojno
[1] Bosnia and Herzegovina consists of two entities (the Federation of Bosnia and Herzegovina and the Republika Srpska) and a district (the Brčko District). The Federation of Bosnia and Herzegovina consists of ten cantons, including the Central Bosnia Canton.
[2] Kolektivni ugovor za službenike organa uprave i sudske vlasti; Official Gazette of the Federation of Bosnia and Herzegovina nos. 23/00, 50/00, 97/13, 89/16 and 23/17.
[3] Zakon o izvršnom postupku; Official Gazette of the Federation of Bosnia and Herzegovina nos. 32/03, 52/03, 33/06, 39/06, 39/09, 35/12 and 46/16.
[4] Official Gazette of the Central Bosnia Canton no. 1/19.
[5] The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 euro = 1.95583 convertible marks).
[6] Zakon o visini stope zatezne kamate; Official Gazette of the Federation of Bosnia and Herzegovina no. 18/20.
[7] See the analytical report prepared by the European Commission, SWD(2019) 222 final, 29 May 2019, p. 73.
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