FOURTH SECTION
CASE OF BAOTIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 49560/20)
JUDGMENT
STRASBOURG
18 October 2022
This judgment is final but it may be subject to editorial revision.
In the case of Baotić v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, Judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 49560/20) 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”) on 30 October 2020 by a national of Bosnia and Herzegovina and Croatia, Mr Mato Baotić, born in 1967 and detained in Orašje (“the applicant”) who was represented by Mr D. Dabić, a lawyer practising in Orašje;
the decision to give notice of the complaint concerning the right to adversarial proceedings before the Constitutional Court to the Government of Bosnia and Herzegovina (“the Government”), represented by their Acting Agent, Ms H. Bačvić, and to declare inadmissible the remainder of the application; and
the parties’ observations.
Having deliberated in private on 27 September 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant complained under Article 6 § 1 of the Convention about the fairness of Constitutional Court proceedings, because the Constitutional Court had not allowed him an opportunity to comment on observations filed by other participants in the proceedings.
2. The impugned Constitutional Court proceedings concerned the fairness and outcome of the applicant’s war crimes trial before the Court of Bosnia and Herzegovina and, in particular, the issue whether the Appeals Chamber of that court had failed to consider his motion to have re-examined witnesses against him. In accordance with Rule 23 of the Rules of the Constitutional Court, the Court of Bosnia and Herzegovina and the Prosecutor of Bosnia and Herzegovina submitted their observations. Since this was not envisaged by its Rules at that time, the Constitutional Court did not transmit them to the applicant. On 11 March 2020 it dismissed the applicant’s case. That decision was served on the applicant on 2 June 2020. With a view to harmonising its procedure with the case-law of this Court, the Constitutional Court has later decided to start transmitting all observations to the appellants for comments.
THE COURT’S ASSESSMENT
ADMISSIBILITY3. The Court, referring to the principles established in its case-law regarding the notion of “significant disadvantage” (see Sylka v. Poland (dec.), no. 19219/07, § 27, 3 June 2014), disagrees with the Government that the applicant did not suffer any “significant disadvantage” for the purposes of Article 35 § 3 (b) of the Convention by the non-communication of the observations in question. Whereas the non-communicated observations of the Prosecutor of Bosnia and Herzegovina did not contain anything new or relevant to the case, the Court of Bosnia and Herzegovina did not limit itself in its observations to restating the reasons given in the contested decision of that court. It asserted that the applicant had in fact failed to lodge a motion to have re-examined witnesses against him and referred, in that regard, to the minutes of one of the hearings held before that court. Moreover, the Constitutional Court explicitly relied on those arguments in its decision (see BENet Praha, spol. s r.o. v. the Czech Republic, no. 33908/04, § 135, 24 February 2011; Hrdalo v. Croatia, no. 23272/07, § 37, 27 September 2011; and Maravić Markeš v. Croatia, no. 70923/11, § 52, 9 January 2014; contrast Holub v. the Czech Republic (dec.), no. 24880/05, 14 December 2010). Accordingly, the Court dismisses the Government’s objection.
4. The Court 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 must therefore be declared admissible.
MERITS5. The Court reiterates that the right to an adversarial trial guaranteed by Article 6 § 1 of the Convention means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may meet this requirement. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment on them (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 91, 18 December 2018; see also, Zahirović v. Croatia, no. 58590/11, § 42, 25 April 2013). In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 140, ECHR 2005‑IV).
6. The Government invited the Court to adopt a less strict approach by examining whether the applicant’s response could have had any influence on the impugned decision, like in Verdú Verdú v. Spain, no. 43432/02, §§ 27-28, 15 February 2007, and the authorities cited therein. The Court, however, first takes note of the special circumstances of that case and the explicit reference to those special circumstances in that case (see Verdú Verdú, cited above, § 28). It further observes that in its subsequent decisions it has confirmed its established case-law mentioned above (see Hudáková and Others v. Slovakia, no. 23083/05, §§ 28-29, 27 April 2010; BENet Praha, spol. s r.o., cited above, § 140; and Maravić Markeš, cited above, § 52).
7. The Court cannot accept the Government’s contention that too strict an interpretation of the rule could contravene the principle of procedural economy and that it would place a disproportionate burden on the functioning of the Constitutional Court. In this particular context all that the right to adversarial proceedings requires is for the parties to have the opportunity to have knowledge of and comment on all observations submitted, with a view to influencing the court’s decision. In practice it is just a matter of forwarding the observations of one party to the other party and setting a deadline for possible comments. This is a straightforward administrative act which will prolong the proceedings for several weeks at most. In this context the Court reiterates that the obligation to complete a trial within a reasonable time cannot be interpreted in such a way as would violate other procedural rights under Article 6 (see Nideröst-Huber v. Switzerland, 18 February 1997, § 30, Reports of Judgments and Decisions 1997-I and BENet Praha, spol. s r.o., cited above, § 141).
8. The Court has often found violations of Article 6 § 1 in cases raising issues similar to that of the present case (see Milatová and Others v. the Czech Republic, no. 61811/00, §§ 59-66, ECHR 2005‑V; BENet Praha, spol. s r.o., cited above, §§ 139-46; Hrdalo, cited above, §§ 34-40; and Maravić Markeš, cited above, §§ 46-57). It considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in this case.
9. Accordingly, the procedure followed did not enable the applicant to participate properly in the proceedings before the Constitutional Court and thus deprived him of a fair hearing within the meaning of Article 6 § 1 of the Convention. There has therefore been a violation of that provision.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
10. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention.Done in English, and notified in writing on 18 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_1} {signature_p_2}
Ilse Freiwirth Tim Eicke
Deputy Registrar President