FOURTH SECTION
Applications nos. 28357/11, 31549/11 and 39295/11
Sulejman AVDIĆ, Vlado ADAMOVIĆ and Drago KOVAČEVIĆ against Bosnia and Herzegovina
STATEMENT OF FACTS
THE FACTS
The applicants are citizens of Bosnia and Herzegovina. They were born in 1949, 1959 and 1962 respectively, and live in Sarajevo (Mr Sulejman Avdić and Mr Vlado Adamović) and in Banja Luka (Mr Drago Kovačević). Mr Sulejman Avdić is represented by Ms S. Nikolić and Mr V. Nikolić, lawyers practising in Sarajevo. Mr Vlado Adamović is represented by Mr N. Gržić, a lawyer practising in Sarajevo.
A. The circumstances of the present cases
The facts, as submitted by the applicants, may be summarised as follows.
1. The facts concerning Mr Sulejman Avdić
On 10 April 2006 the Court of Bosnia and Herzegovina (“the State Court“) rejected the applicant’s claim in a labour dispute against the Fiscal Administration. On 27 February 2007 and 1 October 2007 that judgment was confirmed by a trial chamber of the State Court and an appeals chamber of the State Court, respectively.
On 27 November 2007 the applicant lodged a constitutional appeal.
On 9 July 2010 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. That decision was final by virtue of Article VI § 4 of the Constitution (see “Relevant domestic law” below).
2. The facts concerning Mr Vlado Adamović
On 14 January 2008 the First Instance Disciplinary Panel of the High Judicial and Prosecutorial Council removed the applicant from the post of the State Court’s judge for causing damage to the reputation of the judiciary.
On 16 April, 29 May and 27 November 2008 that decision was confirmed by the Second Instance Disciplinary Panel, the High Judicial and Prosecutorial Council and the State Court, respectively. On 8 July 2009 an appeals chamber of the State Court rejected the applicant’s appeal on points of law.
On 2 October 2009 the applicant lodged a constitutional appeal. He alleged that his right to a fair trial has been violated in the impugned proceedings. He also alleged a violation of Article 14 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7 to the Convention.
On 25 September 2010 the Constitutional Court, in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. That decision was final by virtue of Article VI § 4 of the Constitution.
3. The facts concerning Mr Drago Kovačević
After an unsuccessful attempt to resolve his labour law claim before the administrative commission set up under the labour legislation, on
30 October 2003 the applicant initiated proceedings against his former employer seeking reinstatement and payment of outstanding salaries together with all work-related benefits.
On 20 October 2006, following remittal, the Bosanska Krupa Municipal Court partially accepted his claim. On 17 April 2007 and 14 July 2008 that judgment was upheld by the Bihać Cantonal Court and the Supreme Court of the Federation of Bosnia and Herzegovina, respectively.
On 9 September 2008 the applicant lodged a constitutional appeal complaining about the length and the outcome of the impugned proceedings as well of the alleged discrimination.
On 21 January 2011 the Constitutional Court, in a formation of seven judges, found that the applicant’s right to a hearing within a reasonable time had been violated, but rejected the rest of his appeal since it could not reach a majority on any of the proposals. The court’s reasoning as regards the rejected part of the appeal contained all the views expressed at the session on the issues raised in it. That decision was final by virtue of Article VI § 4 of the Constitution.
B. Relevant domestic law
The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina) entered into force on 14 December 1995. The Constitutional Court was set up pursuant to Article VI of the Constitution, which, insofar as relevant, reads as follows:
“1. Composition
The Constitutional Court shall have nine members.
(a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.
...
2. Procedures
(a) A majority of all members of the Court shall constitute a quorum.
(b) The Court shall adopt its own rules of court by a majority of all members. It shall hold public proceedings and shall issue reasons for its decisions, which shall be published.
3. Jurisdiction
The Constitutional Court shall uphold this Constitution.
...
b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.
...
4. Decisions
Decisions of the Constitutional Court shall be final and binding.”
Rule 40(2) of Rules of the Constitutional Court (Official Gazette of Bosnia and Herzegovina nos. 60/05, 76/05, 64/08 and 51/09), provides that the plenary court takes decisions by a majority of all its members. A judge may abstain from voting (Rule 41).
Rule 40 was amended on 30 May 2009 in that two new paragraphs were added:
"Exceptionally, when less than a total number of nine judges participate in a decision-making procedure at the plenary session, for the reasons referred to in Rule 93(1) [exemption of a judge] or Rule 99(6) [temporary suspension from office pending the outcome of criminal proceedings] of these Rules, as well as in the event that all of the judges have not been appointed or there is an incapacity of one of the judges to exercise his/her office due to illness for a longer period, unless a minimum of five judges vote identically on a draft decision on an appeal, it shall be considered that the decision is taken to reject it.
The reasoning of that decision shall contain all the views presented at the session on the issues raised in the appeal.”
COMPLAINTS
The applicants complain that having regard to the rejection of their constitutional appeals as a consequence of the Constitutional Court’s inability to reach a majority, they were effectively denied access to court in violation of Article 6 § 1 of the Convention.
Mr Avdić also complains about the outcome of the impugned civil proceedings under Article 1 of Protocol No. 1 to the Convention.
Finally, Mr Adamović argues that the disciplinary proceedings against him were unfair and discriminatory in violation of Article 6 § 1 and Article 14 of the Convention. He also invokes Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7 in connection with those proceedings.
QUESTION
In view of the nature of the Constitutional Court’s decisions in the present cases have the applicants been denied, in breach of Article 6 § 1 of the Convention, the “right of access to a court” in the determination of their civil rights and obligations (see Marini v. Albania, no. 3738/02,
18 December 2007)?
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