FOURTH SECTION
DECISION
Application no. 127/10
Medina PREVLJAK and Others
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 10 April 2012 as a Chamber composed of:
Lech Garlicki, President,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano,
Ljiljana Mijović, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 8 December 2009,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Medina Prevljak, Ms Sabira Šahinović, Mr Edin Prevljak and Ms Edina Rokvić, are citizens of Bosnia and Herzegovina who were born in 1939, 1961, 1963 and 1965, respectively. They were represented before the Court by Kebo & Guzin, a law firm based in Mostar. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were registered owners of a public road running alongside their house in Konjic.
On 27 September 2006 the Konjic Municipality started civil proceedings against the applicants before the Konjic Municipal Court. It maintained that the applicants had mistakenly been registered as the owners of the road and requested the rectification of the register.
On 17 May 2007 the Konjic Municipal Court dismissed the claim. It held that the applicants had acquired the title by adverse possession.
On 22 November 2007 the Mostar Cantonal Court ruled in favour of the Konjic Municipality on the grounds that public roads were not subject to the rules on adverse possession. It appears that the register was then rectified and that the applicants’ title to the road was extinguished as a result.
On 14 January 2008 the applicants lodged an appeal on points of law with the Supreme Court of the Federation of Bosnia and Herzegovina as well as an appeal with the Constitutional Court of Bosnia and Herzegovina.
On 13 May 2008 the Constitutional Court rejected the case as premature as it was still pending before the Supreme Court. It instructed the applicants that they could again lodge a constitutional appeal after the Supreme Court had rendered its decision.
On 4 December 2008 the Supreme Court rejected the appeal because the value of the claim did not exceed 10,000 convertible marks (BAM) and the case did not raise any questions affecting the application of the law in other cases.
On 9 January 2009 the applicants lodged a new constitutional appeal, as instructed by the Constitutional Court in its decision of 13 May 2008.
On 17 September 2009 the Constitutional Court rejected the case as out of time. It held that the appeal on points of law had not been an effective remedy and that the applicants should have therefore lodged a constitutional appeal within 60 days from the delivery of the judgment of 22 November 2007. On 3 November 2009 the applicants requested the Constitutional Court to revise that decision in view of the fact that they had lodged their first constitutional appeal regarding the same matter on 14 January 2008. On 29 June 2010 the Constitutional Court accepted that request. On 12 October 2011 it examined the merits of the case and dismissed the case as manifestly ill-founded.
B. Relevant domestic law and practice
1. Roads Act 2002 (Official Gazette of the Federation of Bosnia and Herzegovina nos. 6/02 and 18/02)
The Roads Act 2002 was in force at the relevant time (from 22 February 2002 until 23 March 2010). Section 4 of that Act provided that public roads were a matter of general interest and that title to a public road could not be acquired. The Roads Act 2010, which entered into force on 23 March 2010, contains a similar provision (see section 3 of that Act).
2. Civil Procedure Act 2003 (Official Gazette of the Federation of Bosnia and Herzegovina nos. 53/03, 73/05 and 19/06)
The Civil Procedure Act 2003 has been in force since 5 November 2003. Under section 237 of that Act an appeal on points of law is, in principle, not allowed if the value of the claim in issue does not exceed BAM 10,000, but the Supreme Court may exceptionally take such a case if it considers that it raises a question affecting the application of the law in other cases.
3. Rules of the Constitutional Court (Official Gazette of Bosnia and Herzegovina nos. 60/05, 76/05, 64/08 and 51/09)
The current Rules have been in force since 31 August 2005. Under Rule 70 a party may, in the event of the discovery of a fact which might by its nature have a decisive influence on the outcome of the dispute concerned and which, when a decision was taken, was unknown to the Constitutional Court and could not reasonably have been known to that party, request the Constitutional Court, within a period of six months after that party acquired knowledge of the fact, to revise that decision.
4. The Constitutional Court’s jurisprudence as regards an appeal on points of law
In principle, if a constitutional appeal concerns civil proceedings dealing with a claim the value of which does not exceed BAM 10,000, an appeal on points of law is not considered to be an effective remedy for the reason that the Supreme Court deals with the merits of such appeals only exceptionally (section 237 of the Civil Procedure Act 2003). Therefore, the Constitutional Court will not reject such a case on non-exhaustion grounds only because an appellant has not lodged an appeal on points of law. In the same way, the Constitutional Court will reject such a case as out of time if an appellant has awaited the outcome of his or her appeal on points of law and has thus lodged a constitutional appeal more than 60 days from the date of delivery of the second-instance decision (unless the Supreme Court has exceptionally examined the merits of the case). However, if an appellant lodges a constitutional appeal in parallel with an appeal on points of law, the Constitutional Court may reject the constitutional appeal as premature pending the outcome of the appeal on points of law even if the value of the civil claim in issue does not exceed BAM 10,000. If so, the appellant may lodge a second constitutional appeal within 60 days from the date of delivery of the decision on the appeal on points of law (regardless of weather the Supreme Court has dealt with the merits of that case or not).
COMPLAINTS
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the outcome of the proceedings described above. They also complained under Article 6 of the Convention that the Constitutional Court’s contradictory decisions of 13 May 2008 and 17 September 2009 effectively denied them a right of access to that court.
THE LAW
A. Article 6 of the Convention (the outcome of the civil proceedings)
While complaining about the outcome of the civil proceedings described above, the applicants relied on Article 6 which guarantees the right to a “fair hearing”. The Government did not submit any observations in that regard.
It should be borne in mind – since this is a very common source of misunderstandings on the part of applicants – that the “fairness” required by Article 6 is not “substantive” fairness (a concept which can only be applied by the trial judge), but “procedural” fairness. This translates in practical terms into adversarial proceedings in which submissions are heard from the parties and they are placed on an equal footing before the court. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
The present applicants had the benefit of adversarial proceedings; were able to adduce the arguments and evidence they considered relevant to their case; and had the opportunity of challenging effectively the arguments and evidence adduced by the opposing party. All their arguments which, viewed objectively, were relevant to the resolution of the case were duly heard and examined by the courts and the factual and legal reasons for the impugned decision were set out at length. The proceedings taken as a whole were thus fair. Therefore, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Article 6 of the Convention (access to the Constitutional Court)
The applicants further complained under Article 6 that they had been denied access to the Constitutional Court. The Government disagreed.
The Court reiterates that Article 6 does not compel the Contracting States to set up courts of appeal or of cassation, but where such courts do exist, the guarantees of Article 6, such as an effective right of access to the courts for the determination of civil rights and obligations, must be complied with (see Vusić v. Croatia, no. 48101/07, § 38, 1 July 2010). In the present case, the Constitutional Court rejected the applicants’ first constitutional appeal, as the applicants had pursued it in parallel with an appeal on points of law, and instructed the applicants that they could lodge a second constitutional appeal after the Supreme Court had rendered its decision. It is true that contrary to that instruction and the Constitutional Court’s jurisprudence set out above their second constitutional appeal was also rejected. However, that mistake was afterwards rectified and the Constitutional Court eventually examined the merits of the applicants’ case. For that reason, this part of the application must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 1 of Protocol No. 1 to the Convention
Lastly, the applicants complained about the outcome of the proceedings described above under Article 1 of Protocol No. 1. The Government did not submit any observations in that connection.
The Court notes that the impugned civil proceedings led to the loss of the applicants’ title to a public road. Given that this effectively amounted to the nationalisation of their property, the guarantees of Article 1 of Protocol No. 1 apply to the present case. The Court further notes that the applicants had acquired that title by mistake and contrary to the domestic law (see section 4 of the Roads Act 2002). As a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment (see Moskal v. Poland, no. 10373/05, § 73, 15 September 2009). The rectification of the register was aimed at re-establishing the correct position in law, which is a legitimate aim. Its effect (the applicants’ loss of title) was to put things back in the position they would have been in, had the requirements of the law not been disregarded (see, by analogy, Saliba v. Malta, no. 4251/02, 8 November 2005, concerning the demolition of illegal constructions). Furthermore, there is an obvious and compelling public interest to ensure that public roads remain accessible to everyone. It follows that this part of the application must also be rejected as being manifestly ill-founded 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