Information Note on the Court’s case-law 212
November 2017
Kunić and Others v. Bosnia and Herzegovina - 68955/12, 7270/15, 7286/15 et al.
Judgment 14.11.2017 [Section IV]
Article 46
Article 46-2
Execution of judgment
Individual measures
General measures
Respondent State required to take measures to resolve problems relating to prolonged non-enforcement of final judgments
[This summary also covers the following judgment of 14 November 2017: Spahic and Others v. Bosnia and Herzegovina (20514/15 et al.)]
Facts – The applicants were awarded different sums in respect of unpaid work-related benefits. The Constitutional Court subsequently found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the prolonged non-enforcement of the final judgments in the applicants’ favour. However, the final judgments remained unenforced on account of public debt.
Law – Article 6 § 1 of the Convention and Article 1 of Protocol No. 1: It was not open to authorities to cite a lack of funds as an excuse for not honouring a judgment debt. In its decisions the Constitutional Court had held, in particular, that the relevant cantonal governments should identify the exact number of unenforced judgments and the amount of aggregate debt, and set up a centralised, chronological and transparent database which should include the enforcement time-frame and help avoid abuses of the enforcement procedure. While it appeared that some of the general measures ordered by the Constitutional Court had been implemented, the applicants’ situation remained unchanged. By failing for a considerable period of time to take the necessary measures to comply with the final judgments in the instant case, the authorities had deprived the provisions of Article 6 § 1 of all useful effect and had also prevented the applicants from receiving the money to which they were entitled. That failure further amounted to a disproportionate interference with their peaceful enjoyment of their possessions.
Conclusion: violations (unanimously).
Article 46: By virtue of Article 46 the High Contracting Parties had undertaken to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers of the Council of Europe. It followed that a judgment in which the Court had found a breach, imposed on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures. The State was obliged to take such measures also in respect of other persons in the applicants’ position, notably by implementing the general measures indicated by the Constitutional Court in their decisions.
There were already more than 400 similar applications pending before the Court. Subject to their notification to the Government under Rule 54 § 2 (b) of the Rules of the Court, the respondent State was obliged to grant adequate and sufficient redress to all such applicants. Such redress might be achieved through ad hoc solutions such as friendly settlements or unilateral remedial offers in line with the Convention requirements.
Article 41: In respect of pecuniary damage, the applicants sought the payment of the outstanding judgment debts. The most appropriate form of redress in non-enforcement cases was indeed to ensure full enforcement of the domestic judgments in question. That principle equally applied to the present case. The applicants had suffered distress, anxiety and frustration as a result of the respondent State’s failure to enforce final domestic judgments in their favour. EUR 1,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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