MIRAZOVIC proti Bosně a Hercegovině

FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13628/03
by Dragan MIRAZOVIĆ
against Bosnia and Herzegovina

The European Court of Human Rights (Fourth Section), sitting on 16 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,

and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 15 April 2003,

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

The applicant, Mr Dragan Mirazović, is a citizen of Bosnia and Herzegovina and Sweden, who was born in 1948 and lives in Malmö, Sweden. He is represented before the Court by Mr D. Sadović, a lawyer practising in Mostar, Bosnia and Herzegovina. The respondent Government are represented by Ms Z. Ibrahimović, Agent, and Ms M. Mijić, Deputy Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 27 May 1992 the HVO forces (one of the legal predecessors of the armed forces of Bosnia and Herzegovina) requisitioned 70 empty gas cylinders from the applicant.

Since the cylinders were neither returned to him nor did he obtain compensation for the loss, on 25 January 1999 the applicant initiated civil proceedings before the Second Municipal Court in Mostar seeking pecuniary damages together with default interest and legal costs from the Ministry of Defence of the Federation of Bosnia and Herzegovina.

On 8 September 2000 the Second Municipal Court in Mostar granted the applicant’s claim for damages in the amount of almost 5,000 Bosnian markas (approximately 2,500 euros), his claim for default interest and his claim for legal costs.

On 18 October 2001 the Mostar Cantonal Court upheld the award of damages, amended the award of legal costs and rejected the claim for default interest.

On 27 March 2002 the First Municipal Court in Sarajevo decided not to enforce the final judgment indicated above pursuant to the Claims Arising from Requisitions for Warfare Act 2001.

On 25 April 2003 the Sarajevo Cantonal Court upheld the first instance decision of 27 March 2002.

The applicant did not appeal to the Constitutional Court of Bosnia and Herzegovina.

B. Relevant law and practice

1. Constitution of Bosnia and Herzegovina (Annex 4 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina)

The Constitution entered into force on 14 December 1995.

The Constitutional Court of Bosnia and Herzegovina (hereinafter “the Constitutional Court”), which was set up pursuant to Article VI of the Constitution, is composed of nine members: four members from the Federation of Bosnia and Herzegovina (an Entity of Bosnia and Herzegovina), two from the Republika Srpska (the other Entity) and three non-citizens of Bosnia and Herzegovina or of neighbouring States, selected by the President of the European Court of Human Rights.

The following are the relevant provisions of the Constitution:

Article II § 2

“The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”

Article VI § 3

“The Constitutional Court shall uphold this Constitution.

a. The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to:

• Whether an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.
• Whether any provision of an Entity’s constitution or law is consistent with this Constitution.

Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.

b. The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.

c. The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.”

Article VI § 4

“Decisions of the Constitutional Court shall be final and binding.”

According to the Constitutional Court’s decision no. U 23/00 of 2 February 2001 the term “judgment” contained in Article VI § 3 (b) of the Constitution cited above is to be interpreted extensively:

“The term includes not only all kinds of decisions and rulings, but also a failure to take a decision where such failure is claimed to be unconstitutional.”

In that case, the Constitutional Court found a violation of the right to a hearing within a reasonable time guaranteed by Article 6 of the Convention and ordered the competent court to decide the case “as a matter of urgency”.

The Constitutional Court has found a violation of the “reasonable time” guarantee on a number of occasions thereafter (see, for example, the Constitutional Court’s decision no. AP 129/02 of 30 June 2004 ordering, on the one hand, that the competent court decide the case without further delay and, on the other hand, that the Federation of Bosnia and Herzegovina pay 1,000 Bosnian markas – approximately 500 euros – to the appellant within 30 days).

The Constitutional Court has also examined the issue of statutory prevention of the enforcement of judgments on a number of occasions. The following is the relevant part of its decision no. AP 288/03 of 17 December 2004:

“...31. The Constitutional Court holds that the administrative authorities must comply with legally valid court judgments. Moreover, the Constitutional Court points out that the state, in principle, cannot adopt laws [preventing] enforcement of legally valid court decisions, as it would be in contravention with the principle of the rule of law under Article I § 2 of the Constitution of [Bosnia and Herzegovina] and with the right to a fair hearing under Article II § 3 (e) of the Constitution of [Bosnia and Herzegovina] and Article 6 § 1 of the European Convention.

...35. The Constitutional Court concludes that in the present case there has been a violation of the right to a fair hearing under Article II § 3 (e) of the Constitution of Bosnia and Herzegovina and Article 6 § 1 of the European Convention.”

It would appear that following the Constitutional Court’s decision in that case, the judgment in issue has been enforced. There was no award of damages.

The Constitutional Court has subsequently come to the same conclusion in at least one similar case (see the Constitutional Court’s decision no. AP 703/04 of 23 March 2005). It would appear that the judgment in issue in that case has also been enforced following the Constitutional Court’s decision. There was again no award of damages.

Finally, the Constitutional Court has accepted to examine a number of other issues (such as, for example, those relating to missing persons and the “old” foreign-currency savings) in which no effective remedy, other than an appeal to the Constitutional Court, was provided (see, for example, the Constitutional Court’s decision nos. AP 143/04 of 23 September 2005 and AP 130/04 of 2 December 2005).

As to a constitutionality review, the Constitutional Court practises an abstract review pursuant to Article VI § 3 (a) of the Constitution and concrete review pursuant to Article VI § 3 (c). The abstract constitutionality review proceedings may be initiated only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. The concrete constitutionality review may be initiated by any court in Bosnia and Herzegovina, including the Constitutional Court itself. The following is the relevant part of the Constitutional Court’s decision no. AP 106/03 of 27 October 2004 in which the latter concept (the concrete constitutionality review) was explained:

“...32. Finally, the Constitutional Court notes ... that the problems of this sort arise out of a situation when challenged decisions are legal but unconstitutional, or when a law does not grant court protection to appellants in cases where a legislator failed to provide court protection of full jurisdiction at least in one instance although this was decreed by constitutional standards. In conclusion, the primary issue that is being raised here concerns the quality of a law.

33. In order to resolve this conflict, competent courts, when faced with such a problem, are obliged to initiate procedures of control of constitutionality ...

34. Should the courts fail to do so, it rests on the Constitutional Court of Bosnia and Herzegovina, the upholder of the Constitution of Bosnia and Herzegovina (the first sentence in Article VI § 3 of the Constitution of Bosnia and Herzegovina), to examine that issue if it occurs in a procedure under appellate jurisdiction. In doing so, the Constitutional Court entertains full jurisdiction as referred in Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina since this is the only way to protect the principle of the rule of law in its entirety, the principle that, inter alia, implies that laws are in hierarchical harmony. If this was not the case, the Constitutional Court would depend on the discretion of other courts and the legislator in fulfilling their positive obligation under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, which would be contrary to the first sentence of Article VI § 3 of the Constitution of Bosnia and Herzegovina. Moreover, the Constitutional Court is one of the “courts” in Bosnia and Herzegovina. Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina provides that “the Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution”. By linking the previous two sentences for the purpose of interpretation of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, one may infer that the Constitutional Court, if need be, entertains jurisdiction to assess constitutionality in a procedure under appellate jurisdiction by virtue of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina. If this was the other way around, the Constitutional Court would be deprived of its function as “a court”. This conclusion is not affected by the fact that the Constitutional Court carries out both functions in one procedure at the same time (deciding a case within appellate jurisdiction under Article VI § 3 (b) and control of constitutionality of laws) whereas there are two procedures with other courts: deciding a case on the merits and initiation of procedure under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina before the Constitutional Court.”

2. Legislation of the Federation of Bosnia and Herzegovina preventing enforcement of judgments

The Federation of Bosnia and Herzegovina passed a number of acts dealing with claims arising from requisitions for warfare: see, for example, the Claims Arising from Requisitions for Warfare Act 2001 (Zakon o utvrđivanju i ostvarivanju potraživanja nastalih za vrijeme ratnog stanja i neposredne ratne opasnosti; published in the Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH” – no. 43/01 of 8 October 2001), the Claims Arising from Requisitions for Warfare Decree 2002 (Uredba o načinu utvrđivanja i realizaciji javnog duga Federacije Bosne i Hercegovine nastalog za vrijeme ratnog stanja i neposredne ratne opasnosti; published in OG FBH no. 17/02 of 9 May 2002; amendments published in OG FBH nos. 32/02 of 16 July 2002 and 34/02 of 20 July 2002), the Temporary Postponement of Enforcement Act 2004 (Zakon o privremenom odlaganju od izvršenja potraživanja na osnovu izvršnih odluka na teret budžeta Federacije Bosne i Hercegovine; published in OG FBH no. 9/04 of 16 February 2004; amendments published in OG FBH no. 30/04 of 31 May 2004) and the Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjih obaveza Federacije Bosne i Hercegovine; published in OG FBH no. 66/04 of 27 November 2004; amendments published in OG FBH no. 49/05 of 8 August 2005).

COMPLAINT

The applicant complained under Article 1 of Protocol No. 1 to the Convention about the statutory prevention of enforcement of the judgment of 8 September 2000 (as amended on 18 October 2001). The application was communicated to the Government also under Article 6 of the Convention.

THE LAW

The applicant obtained a judgment ordering the Ministry of Defence of the Federation of Bosnia and Herzegovina to pay damages and legal costs to him. However, the actual payment of the debt has been prevented by legislation of the Federation of Bosnia and Herzegovina (the Claims Arising from Requisitions for Warfare Act 2001, the Temporary Postponement of Enforcement Act 2004 and the Settlement of Domestic Debt Act 2004). The applicant complained about this situation. His complaint raises issues under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Article 6, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that had the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (hereinafter “the Constitutional Court”), the impugned situation would have been remedied. They referred to the Constitutional Court’s decision no. AP 288/03 of 17 December 2004 (see “Relevant law and practice” above).

The applicant maintained that according to the Constitution of Bosnia and Herzegovina, the Constitutional Court had no jurisdiction to review the constitutionality of legislation following an individual human-rights application. Since in the present case the refusal to enforce the judgment was based on legislation, the Constitutional Court would not have accepted his complaint. The applicant did not comment on the Constitutional Court’s decision no. AP 288/03 of 17 December 2004 to which the Government specifically referred.

The above objection falls to be examined under Article 35 § 1 of the Convention which reads as follows:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, amongst other authorities, T. v. the United Kingdom [GC], no. 24724/94, § 55, 16 December 1999).

As to legal systems which provide constitutional protection for fundamental rights, such as the one of Bosnia and Herzegovina, the Court recalls that it is incumbent on the aggrieved individual to test the extent of that protection (see Holland v. Ireland, no. 24827/94, Commission decision of 14 April 1998, Decisions and Reports 93, p. 15 and Independent News and Media and Independent Newspapers Ireland Limited v. Ireland (dec.), no. 55120/00, 19 June 2003).

In the instant case, the Court first notes that, although the Constitutional Court was set up pursuant to an international treaty (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...), it is considered to be a domestic court for the reasons outlined in detail in the Jeličić decision. This has not been disputed by either party.

As the applicant justly pointed out, if one reads only Article VI § 3 (b) of the Constitution of Bosnia and Herzegovina, it may seem that any complaint about legislation is doomed to failure as it is not directed against “a judgment of any other court in Bosnia and Herzegovina”. However, it is evident from the Constitutional Court’s jurisprudence, to which the Government referred, that an extensive interpretation has been given to that constitutional provision and that a number of individuals in the applicant’s situation have successfully pursued their cases before that Court (see “Relevant law and practice” above). Therefore, contrary to what the applicant maintained, he clearly had access to the Constitutional Court: he could have appealed against the decision of 27 March 2002 (as upheld on 25 April 2003) which refused enforcement pursuant to the relevant legislation.

The Constitutional Court has the power, as it is evident from the cases to which the Government referred, to order enforcement of a judgment regardless of any legislation preventing such enforcement and to award damages. The fact that no damages have been awarded in the cases on non-enforcement is not decisive: it is recalled that a domestic remedy for the non-enforcement of judgments is effective within the meaning of Article 35 § 1 of the Convention if it can be used either to prevent the alleged violation or its continuation, or to provide adequate redress for any violation that had already occurred (see, for example, Mykhaylenky and Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, § 38 , ECHR 2004‑...).

In the light of all the material in its possession, the Court notes that neither the speed with which the Constitutional Court processes cases nor the enforcement of the Constitutional Court’s decisions raise any concerns as to the effectiveness of that remedy.

The Court therefore considers that an appeal to the Constitutional Court is, in principle, an effective domestic remedy within the meaning of Article 35 § 1 of the Convention for raising a complaint about statutory prevention of the enforcement of judgments. The applicant has neither used that remedy nor shown that it was for any reason inadequate or ineffective in the particular circumstances of his case. The Court sees no special circumstances absolving the applicant from the obligation to use it (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 67).

The application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza
Registrar President