FOURTH SECTION
DECISION
Application no. 21206/07
Ismet HALILOVIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 17 January 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano,
Ljiljana Mijović, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 28 April 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ismet Halilović, was a citizen of Bosnia and Herzegovina, born in 1952. On 7 October 2008 his wife, Ms Emina Halilović, and his two sons, Mr Redžo Halilović and Mr Semir Halilović, informed the Court that the applicant had died on 3 September 2007 and that they wished to pursue the application as his legal successors. The Bosnian-Herzegovinian Government (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Following a car accident in 1971 and unsuccessful civil proceedings, on 24 October 2003 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) ordered an insurance company to comply with the terms of a settlement concluded between the applicant and that company in January 1992 by paying the applicant the outstanding monthly payments in a total amount of 47,677 convertible marks (BAM) together with default interest at the statutory rate for the period from April 1992 until October 2003 and by continuing to pay the applicant BAM 343 per month for as long as was required.
1. Enforcement proceedings
4. On 20 April 2004 the applicant initiated enforcement proceedings before the Sarajevo Municipal Court (“the Municipal Court”). On 27 April 2004 the Municipal Court issued an execution writ.
5. On 28 June 2004 the Municipal Court accepted the debtor’s objection and altered the execution writ of 27 April 2004 in the part concerning the calculation of default interest in the period from 1 April 1992 to 23 December 1996. On 25 January 2005 the Sarajevo Cantonal Court quashed that decision and ordered that the execution writ of 27 April 2004 be as fully in force.
6. In the meantime, on 23 August 2004 the applicant received BAM 114,252.74 (the principal debt in the amount of BAM 47,677, default interest in the amount of BAM 65,145.74 and costs and expenses in the amount of BAM 1,430). On 15 April and 6 July 2005 the applicant received further amounts of BAM 5,242 and BAM 54,910 for default interest.
7. The applicant was also regularly receiving BAM 343 per month (see paragraph 3 above) until his death on 3 September 2007.
2. Criminal proceedings concerning non-enforcement
8. On 22 April 2005 the Constitutional Court held that the decision of 24 October 2003 had not been fully enforced and referred the case to the competent public prosecutor (see “Relevant domestic law” below).
9. On 30 January 2006 the public prosecutor interviewed the applicant. On 13 and 28 February 2006 he interviewed the financial director and two other employees of the debtor insurance company.
10. On 30 March 2006 the public prosecutor ordered a financial expertise in the applicant’s case. On 10 April 2006 the financial expert, A.H., submitted his opinion in which he stated that until 30 April 2006 the applicant had received BAM 178,815.88 in total. Moreover, he concluded that the applicant should receive a further amount of BAM 40,208.84 in respect of default interest since it had been wrongly calculated, and that he had unduly received BAM 1,715 in respect of the monthly annuities (the debtor has paid double annuities for the period from August until December 2004).
11. On 15 and 17 August 2006, the applicant received a further BAM 40,208.84 in two instalments.
12. On 4 September 2006 the applicant filed an objection to the expert’s opinion claiming that default interest had been wrongly calculated. On 19 December 2006 and on 9 January 2007 the expert submitted an additional expertise maintaining his previous findings. Moreover, he held that with the additional payment of BAM 40,208.84 the Constitutional Court decision was fully enforced.
13. On 30 March 2007 the public prosecutor decided not to prosecute since the Constitutional Court decision of 24 October 2003 had been fully enforced. On 7 May 2007 the General Prosecutor upheld that decision.
B. Relevant domestic law
14. In accordance with Article 239 of the Criminal Code 2003 (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010), non-enforcement of a decision of the Constitutional Court is a criminal offence:
“An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term of between six months and five years.”
COMPLAINT
15. The applicant complained of the non-enforcement of the Constitutional Court’s decision of 24 October 2003 in his favour. He relied on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
16. The Government submitted that the application should be rejected as manifestly ill-founded since the Constitutional Court decision was fully enforced.
17. The applicant’s legal successors agreed that the principal debt had been fully paid, but maintained that default interest had not been fully paid. They did not specify, however, the additional amount that should be paid to them nor a legal basis for such payment.
18. The Court notes that on 23 August 2004 the applicant was paid the principal debt in full, a part of the default interest and costs and expenses. Subsequently, in the course of 2005 and 2006 he received further payments in respect of default interest (see paragraphs 6 and 11 above). In addition, he was regularly receiving BAM 343 per month until his death on 3 September 2007.
19. The Court notes that on the public prosecutor’s request, a thorough investigation into the applicant’s claims was carried out. A financial expert concluded that the Constitutional Court decision had been fully enforced. In the absence of any evidence to the contrary, the Court sees no reason to depart from that finding. It concludes that the decision in issue had already been fully enforced when the applicant lodged his application.
Therefore, the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy