Communicated on 31 August 2015
FOURTH SECTION
Application no. 20514/15
Maja SPAHIĆ against Bosnia and Herzegovina
and 15 other applications
(see list appended)
The applicants are citizens of Bosnia and Herzegovina. Their personal details are set out in the appended table.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
By five judgments of the Travnik Municipal Court (“the Municipal Court”) of 5 March 2009, 18 January 2012, 31 March 2010, 30 April 2012 and 13 June 2011, which became final on 17 June 2010, 13 February 2012, 1 September 2010, 12 March 2013 and 21 July 2011, respectively, the Central Bosnia Canton (Srednjobosanski kanton, “the CB Canton”; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants different sums in respect of the work-related benefits together with default interest at the statutory rate and legal costs.
The Municipal Court issued writs of execution (rješenja o izvršenju) on 23 September 2010, 14 June 2012, 4 October 2010, 13 February 2013 and 25 October 2011, respectively. Enforcement was to take place on the debtor’s bank account.
The writs of execution 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 Municipal Court that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.
On 26 February 2013 and 7 January 2014 the Ministry of Finance of the CB Canton (“the Ministry”) informed the bank that no funds for the enforcement of the final judgments had been provided in the cantonal budget for 2013 and 2014 and that, accordingly, the final judgments against the canton could not be enforced.
However, on 9 January 2015, upon the applicants’ enquiry, the Ministry informed them that in 2013 the canton had designated 620,000 convertible marks (“BAM”) for the enforcement of judgments and BAM 605,900 in 2014 for the same purpose.
The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 17 September 2014 (AP 3438/12) and 26 February 2015 (AP 4242/14), the Constitutional Court found a violation of Article 6 and Article 1 of Protocol No. 1 to the Convention in the applicants’ and five other cases, on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the CB 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. Although some of the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation.
The relevant part of the decision of 17 September 2014 reads as follows:
“36. ...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.
...
39. 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’...
40. 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...
...
42. The court finds that the crux of the problem in the present case is that the CB 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 CB Canton would ensure the respect of its obligations from Article 6 § 1 and Article 1 of Protocol no. 1 to the Convention.
...
44. 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...
...
46. In order to comply with its positive obligation, the government of the CB 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.
...
47. ...The current situation does not give any guarantees to the appellants that their claims against the CB Canton will be enforced within a reasonable time”.
The Constitutional Court’s decision of 26 February 2015 follows the same legal reasoning.
The final judgments in the applicants’ favour remain unenforced until the present day.
B. Relevant domestic law
1. Constitution of the CB Canton
Article 19 of the Constitution of the CB Canton (Ustav Srednjobosanskog kantona, Official Gazette of the CB Canton nos. 1/97, 5/97, 2/98, 7/98, 8/98, 10/00, 8/03, 2/04 and 14/04) provides that in accordance with the Constitution of the Federation of Bosnia and Herzegovina, the Federation and the CB 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 the cantonal courts (Article 53 § b).
2. 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)).
COMPLAINT
The applicants essentially complain about the failure by the national authorities to enforce final court decisions in their favour.
QUESTION TO THE PARTIES
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. and date of introduction
Applicant’s name
and date of birth
Represented by
20514/15
20/04/2015
Maja SPAHIĆ
24/04/1978
Hatidža KAPETAN
20528/15
20/04/2015
Ljiljana SIMOVIĆ
20/06/1963
Hatidža KAPETAN
20774/15
20/04/2015
Alvedina PAJIĆ
16/06/1975
Hatidža KAPETAN
20821/15
20/04/2015
Mirsada AHMIĆ
29/10/1957
Hatidža KAPETAN
20847/15
20/04/2015
Kazimir JURIĆ
11/10/1947
Hatidža KAPETAN
20852/15
20/04/2015
Slavica BADROV
30/04/1960
Hatidža KAPETAN
20914/15
20/04/2015
Abdulah BUREK
30/06/1958
Hatidža KAPETAN
20921/15
20/04/2015
Anđelka BONIĆ
17/02/1967
Hatidža KAPETAN
20928/15
20/04/2015
Amer SUNULAHPAŠIĆ
16/12/1966
Hatidža KAPETAN
20975/15
20/04/2015
Slavica VAVRA
20/11/1965
Hatidža KAPETAN
21141/15
20/04/2015
Jasmina ŠABIĆ
05/12/1962
Hatidža KAPETAN
21143/15
20/04/2015
Nasira KURTOVIĆ
16/09/1964
Hatidža KAPETAN
21147/15
20/04/2015
Nidaz UGARAK
06/10/1957
Hatidža KAPETAN
21224/15
20/04/2015
Zorica BARIŠIĆ
23/09/1970
Hatidža KAPETAN
21237/15
20/04/2015
Jasmin HODŽIĆ
08/07/1973
Hatidža KAPETAN
21239/15
20/04/2015
Jasmina MEZILDŽIĆ
02/03/1967
Hatidža KAPETAN
Full & Egal Universal Law Academy