Communicated on 31 August 2015
FOURTH SECTION
Application no. 68955/12
Suljo KUNIĆ against Bosnia and Herzegovina
and 15 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are citizens of Bosnia and Herzegovina. Their personal details are set out in the appended table.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
By a judgment of the Zenica Cantonal Court of 5 February 2007, three judgments of the Tešanj Municipal Court of 30 July 2008, 31 March 2008 and 15 May 2009 and a judgment of the Zenica Municipal Court of 26 April 2007, which became final on 5 February 2007, 18 August 2008, 23 March 2009, 25 June 2010 and 27 March 2008, respectively, the Zenica-Doboj Canton (Zeničko-dobojski kanton; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants different sums in respect of the unpaid work-related benefits together with default interest at the statutory rate and legal costs.
The writs of execution (rješenja o izvršenju), issued on 2 March 2007, 5 April 2010, 2 March 2010, 14 December 2010 and 24 June 2008, respectively, by the Zenica Municipal Court and the Tešanj Municipal Court, were transferred to the competent bank and were listed among the charges on the debtor’s account.
On several occasions thereafter the bank informed the competent courts that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.
On 12 July 2008 the applicant in the first case, Mr Kunić, complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).
On 12 October 2011 (AP 2110/08) the Constitutional Court found a violation of Article 6 and Article 1 of Protocol No. 1 to the Convention in Mr Kunić’s and ten other cases on account of the prolonged non-enforcement of the final judgments in the appellants’ favour. It ordered the government of the Zenica-Doboj Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time.
The relevant part of the decision reads as follows:
“39. ...The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account.
...
45. 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’...
46. The Constitutional Court agrees with the position taken by the European Court...it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina...The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose...and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles...In 2010 and 2011 the amount of funds for that purpose in the budget of the Zenica-Doboj Canton was BAM 100,000.
...
48. The court finds that the crux of the problem in the present case is that the Zenica-Doboj Canton did not identify 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 this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time 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 measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time...and the Zenica-Doboj Canton would ensure the respect of its obligations from Article 6 §1 and Article 1 of Protocol no. 1 to the Convention.
...
50. The court considers that the adoption 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 of 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 is 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...
...
52. In order to comply with its positive obligation, the government of the Zenica-Doboj 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.
...
54. ...The current situation does not give any guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enforced within a reasonable time”.
On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 (and eight other decisions concerning the same matter) had not been enforced.
The final judgments in the applicants’ favour remain unenforced until the present day.
B. Relevant domestic law and practice
1. Constitution of the Zenica-Doboj Canton
Article 19 of the Constitution of the Zenica-Doboj Canton (Ustav Zeničko-dobojskog kantona, Official Gazette of the Federation of Bosnia and Herzegovina, no. 7/96) provides that in accordance with the Constitution of the Federation of Bosnia and Herzegovina, the Federation and the Zenica-Doboj Canton are responsible for ensuring the implementation of human rights within their jurisdictions. The cantonal government is responsible for the enforcement of final judgments of the federal and cantonal courts (Article 50 § b).
2. Settlement Plan of the Zenica-Doboj Canton
On 14 November 2013 the government of the Zenica-Doboj Canton adopted the Settlements Plan (Odluka o mjerilima i kriterijima za zaključivanje vansudskih nagodbi na teret proračuna Zeničko-dobojskog kantona), setting out the procedure for settling the enforcement claims against the canton. Settlement proposals will be accepted under the condition that creditors forsake part of their claims (principal debt, and/or default interest and/or legal costs) and withdrew their enforcement claims submitted to the competent courts. Priority is given to those creditors who renounce the largest parts of their claims.
3. Enforcement Procedure Act 2003 of the Federation of Bosnia and Herzegovina
Section 138 of the Enforcement Procedure Act 2003 (Zakon o izvršnom postupku, Official Gazette of the Federation of Bosnia and Herzegovina nos. 32/03, 52/03, 33/06, 39/06 and 39/09) provides for the limitation of enforcement of final judgments against the Federation of Bosnia and Herzegovina and the cantons: these will be enforced only within the amount of funds provided for that purpose in the federal and cantonal budgets which cannot be lower than 5% of the total budget and must be designated annually (section 138 (3)). The enforcement will be carried out in a chronological order according to the time the judgments became final. The statutory prescription period does not apply to these claims (section 138 (6)).
4. The case-law of the Constitutional Court
After the decision AP 2110/08 of 12 October 2011 (see above), the Constitutional Court adopted eight more decisions on the same matter: AP 584/09 of 9 November 2011, AP 545/09 of 23 February 2012, AP 1316/09 of 14 March 2012, AP 2972/09 of 13 June 2012, AP 2535/09 of 13 June 2012, AP 801/09 of 18 April 2012, AP 633/09 of 18 April 2012 and AP 1209/09 of 18 April 2012. None of these decisions has been enforced.
COMPLAINT
The applicants essentially complain about the failure by the national authorities to enforce final court decisions in their favour.
QUESTIONS TO THE PARTIES
1.(a). Could an appeal to the Constitutional Court of Bosnia and Herzegovina be considered an effective domestic remedy in respect of the applicants’ Convention complaints within the meaning of Article 35 § 1 of the Convention?
(b). If so, has this remedy been exhausted by all applicants?
2. Has there been a violation of Article 6 of the Convention and/or Article 1 of Protocol No. 1 to the Convention arising from the failure to enforce final and enforceable judgments in the applicants’ favour (see Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006‑..., and Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009)?
Appendix
No
Application no
Lodged on
Applicant’s name and
date of birth
Represented by
68955/12
22/10/2012
Suljo KUNIĆ
24/04/1951
Anto PETRUŠIĆ
7270/15
30/01/2015
Sead KURTIĆ
28/11/1959
Muhidin ALIĆ
7286/15
30/01/2015
Halima KARAHODŽIĆ
23/01/1964
Muhidin ALIĆ
7316/15
30/01/2015
Jaska KAMIŠEVIĆ
23/09/1967
Muhidin ALIĆ
7321/15
30/01/2015
Razim ROŠIĆ
17/08/1961
Muhidin ALIĆ
7325/15
30/01/2015
Esed AHMIĆ
06/04/1966
Muhidin ALIĆ
7336/15
30/01/2015
Behija SINANOVIĆ
23/05/1960
Muhidin ALIĆ
7408/15
30/01/2015
Mirsada ČELIKOVIĆ
19/05/1974
Muhidin ALIĆ
7418/15
30/01/2015
Fatima CEROVAC
27/03/1949
Muhidin ALIĆ
7429/15
30/01/2015
Husein JUPIĆ
22/05/1949
Muhidin ALIĆ
19494/15
13/04/2015
Šaćir MAHIĆ
03/03/1943
Muhidin ALIĆ
19501/15
13/04/2015
Amira HASANBAŠIĆ
13/10/1972
Muhidin ALIĆ
19547/15
13/04/2015
Smail OMEROVIĆ
09/04/1951
Muhidin ALIĆ
19548/15
13/04/2015
Nermina TORIĆ
27/08/1976
Muhidin ALIĆ
19550/15
13/04/2015
Mustafa HALILOVIĆ
05/09/1954
Muhidin ALIĆ
19617/15
02/04/2015
Muzafer HUKIĆ
07/08/1962
Muhidin ALIĆ
Full & Egal Universal Law Academy