Resolution CM/ResDH(2012)16[1]
Execution of the judgment of the European Court of Human Rights
Ismeta Bačić case against Croatia
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”)[2],
Having regard to the judgment transmitted by the Court to the Committee once it became final;
Case name (Application No.)
Judgment of
Final on
Ismeta Bačić (43595/06)
19/06/2008
01/12/2008
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;
Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;
Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see action plan, document DH‑DD(2012)162);
Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;
DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
ACTION REPORT
CASE TITLE: ISMETA BAČIĆ V. CROATIA
APPLICATION NO. 43595/06
JUDGMENT OF 19/06/2008
FINAL ON 01/12/2008
The ECtHR found a violation of Article 6 § 1 of the Convention, in that the applicants’ pecuniary damage claim (recognized in civil proceedings) submitted in the bankruptcy proceedings against her former employer was dismissed as lodged out of Lime, despite the fact that the bankruptcy administrator was legally obliged to include the applicants’ clam in the list of all existing claims against the debtor in the bankruptcy proceedings.
1. GENERAL MEASURES
The problem in this case can be summarized as follows: municipal court, deciding in civil proceedings on payment of pecuniary damage, had no knowledge of bankruptcy proceedings before the commercial court (relevant to the possibility of ensuring the payment of compensation awarded in civil proceedings), and vice-versa.
Obligation to inform the court conducting bankruptcy proceedings of any claims against the debtor exists both for the creditor of such claims, and for the bankruptcy administrator. Furthermore, if bankruptcy proceedings are opened against a party to the civil proceedings (before municipal or county courts), the competence to continue these proceedings was to be automatically transferred to the commercial court conducting the bankruptcy proceedings.
Therefore, the issue in this case cannot be solved by re-assessing the case-law of commercial courts (the case law is in compliance with the legislation, the content of which was net scrutinized by the ECtHR). Since the issue is of a technical rather than legal nature, the solution requires no legislative changes or changes of case-law.
The nature of the problem requires setting up a system of cooperation between municipal and commercial courts in such matters.
All information relevant for the status of legal entities (companies, associations, co-operatives, company branches etc.) is entered into the Court Register kept by Commercial Courts. Relevant changes are updated daily. The Court Register is kept both manually and electronically. Opening of bankruptcy proceedings against any subject is immediately recorded into the Register.
On the other hand, domestic courts of all levels of jurisdiction make part of the ICMS (Integrated Case Management System), colloquially known as the e-file system. It is a computer application that stores updated data on all cases pending before domestic courts, i.e. information on parties to the proceedings and their representatives, their submissions, dates and minutes of hearings held, and court decisions rendered in the case.
Therefore, creating a permanent connection between the Court Register and the ICMS will solve the issue of timely information flow regarding the opening of bankruptcy proceedings against any subject that is a party to the civil proceedings. For that purpose, a new function has already been added to the ICMS, connecting permanently the Court Register with the ICMS. This function informs the judge in the civil proceedings on the fact that bankruptcy proceedings were opened against one of the parties to the proceedings immediately after this fact has been entered in the Court Register.
Full electronic connection of the two relevant data-bases has been established in November 2011.
Additionally, the list of all bankruptcy proceedings opened before the new function of the ICMS became fully operational bas been delivered to all municipal and county courts, in order to prevent similar situations in this transitional period.
The judgment has been translated to Croatian and disseminated to all relevant authorities: the Constitutional Court of RoC, the Supreme Court of RoC, the High Commercial Court and the Commercial Court in Zagreb. The translation of the judgment has been published on the web-page of the Ministry of Justice ().
INDIVIDUAL MEASURES
As the Committee of Ministers has already been informed, bankruptcy proceedings against the applicants’ debtor have been brought to an end (on 10/11/2004), the applicant’s debtor ceased to exist and was deleted from the Court Register. Therefore, no further individual measures are necessary (as already assessed by the Committee of Ministers: ).
JUST SATISFACTION
Just satisfaction awarded to the applicant has been paid in full on 23 January 2009, and relevant information on the payment was delivered to the Department for the Execution of Judgments of ECtHR on March 20 2009.
CONCLUSION
Therefore, the Government deems that full compliance with the ECtHR judgment in this case has been ensured, and proposes to the Committee of Ministers the closure of the supervision procedure and the adoption of a final resolution (Article 46 paragraph 2 of the Convention in relation to Rule 17 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements).
[1] Adopted by the Committee of Ministers on 8 March 2012 at the 1136th Meeting of the Ministers’ Deputies.
[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.
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