DURANSPAHIC AND OTHERS v. BOSNIA AND HERZEGOVINA - 47761/16 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2019] ECHR 336 (09 May 2019)

JUDGMENT STRASBOURG 9 May 2019 This judgment is final but it may be subject to editorial revision. In the case of Duranspahić and Others v. Bosnia and Herzegovina , The European Court of Human Rights ( Fourth Section ), sitting as a Committee composed of: Georges Ravarani, President, Marko Bošnjak , Péter Paczolay , judges, and Liv Tigerstedt , Acting Deputy Section Registrar , Having deliberated in private on 4 April 2019 , Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in applications against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table . 2. The applicants were represented by Mr S. Zaklan , a lawyer practising in Mostar. 3. Notice of the application s was given to the Government of Bosnia and Herzegovina ("the Government"). THE FACTS 4. The list of applicant s and the relevant details of the applications are set out in the appended table. 5. The applicant s complained of the non-enforcement of domestic decisions . THE LAW I. JOINDER OF THE APPLICATIONS 6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 7. The applicant s complained of the non-enforcement of domestic decisions given in their favour . They relied, expressly or in substance, on Article 6 § 1 of the Convention and on Article 1 of Protocol No. , which read as follows: Article 6 § "In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..." Article 1 of Protocol No. 1 "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." 8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a "hearing" for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece , no. 18357/91 , § 40, Reports of Judgments and Decisions - II). 9. In the leading cases of Spahić and Others v. Bosnia and Herzegovina, nos. 20514/15 and 15 others, §§ 25-31, 14 November 2017, and Kunić and Others v. Bosnia and Herzegovina, nos. 68955/12 and 15 others, §§ - 31, 14 November 2017, the Court already found a violation in respect of issues similar to those in the present case. 10. The Court further notes that the decisions in the present applications ordered specific action to be taken. The Court therefore considers that the decisions in question constitute "possessions" within the meaning of Article 1 of Protocol No. 1. 11. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicant s ' favour. 12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. . III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. Article 41 of the Convention provides: "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." 14. Regard being had to the documents in its possession and to its case - law (see, in particular, Spahić and Others v. Bosnia and Herzegovina, nos. 20514/15 and 15 others, §§ 36-43, 14 November 2017, and Kunić and Others v. Bosnia and Herzegovina, nos. 68955/12 and 15 others, §§ - 46, 14 November 2017), the Court considers it reasonable to award the sums indicated in the appended table. 15. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable . 16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT , UNANIMOUSLY, 1. Decides to join the applications; 2. Declares the applications admissible; 3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. concerning the non-enforcement of domestic decisions ; 4. Holds that the respondent State shall ensure, by appropriate means, within three months, the enforcement of the pending domestic decisions referred to in the appended table; 5. Holds (a) that the respondent State is to pay the applicant s , within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 9 May 2019 , pursuant to Rule §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Georges Ravarani Acting D eputy Registrar President APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention and Article 1 of the Protocol No. 1 ( non-enforcement or delayed enforcement of domestic decisions ) No. Application no. Date of introduction Applicant ' s name Date of birth Relevant domestic decision Start date of non-enforcement period Length of enforcement proceedings Amount awarded for non-pecuniary damage per applicant (in euros) [1] Amount awarded for costs and expenses per application (in euros) [2] 47761/16 18/07/2016 (3 applicants) Berin Duranspahić 01/02/1965 Mirsad VOLJEVICA 28/08/1965 Andrija PAVLOVIĆ 21/08/1962 Mostar Cantonal Court, 26/11/2010 21/01/2011 pending More than 8 year(s) and 1 month(s) and 27 day(s) 1,000 48433/16 18/07/2016 (4 applicants) Esad Mutap 26/07/1958 Sejo HERIĆ 13/03/1967 Ivan LIVAJA 11/01/1962 Senad OMEROVIĆ 29/03/1979 Mostar Cantonal Court, 23/09/2010 24/02/2011 pending More than 8 year(s) and 24 day(s) 1,000 48459/16 18/07/2016 (2 applicants) Almir Čardžić 27/06/1972 Enes LAPO 12/05/1977 Mostar Cantonal Court, 21/10/2010 07/03/2011 pending More than 8 year(s) and 13 day(s) 1,000 48796/16 21/07/2016 (3 applicants) Mehmed Muftić 28/07/1966 Radoslav DABIĆ 14/11/1972 Sead PIRALIĆ 07/08/1977 Mostar Cantonal Court, 26/01/2011 29/03/2011 pending More than 7 year(s) and 11 month(s) and 20 day(s) 1,000 50730/16 26/07/2016 (3 applicants) Dalibor Žilić 09/11/1974 Đani BEGANOVIĆ 27/01/1977 Mirsad KAJAN 02/07/1977 Mostar Cantonal Court, 02/09/2010 22/04/2011 pending More than 7 year(s) and 10 month(s) and 26 day(s) 1,000 50749/16 26/07/2016 (3 applicants) Džemal Tabaković 29/10/1954 Mujo HAJDAROVIĆ 25/05/1970 Srboljub KARIĆ 28/08/1981 Mostar Cantonal Court, 10/06/2010 16/03/2011 pending More than 8 year(s) and 4 day(s) 1,000 50760/16 26/07/2016 (2 applicants) Mirko Rotim 26/02/1953 Alija MEHIĆ 10/01/1960 Mostar Cantonal Court, 28/10/2010 07/03/2011 pending More than 8 year(s) and 13 day(s) 1,000 50822/16 26/01/2016 Dževad Topuz 08/01/1962 Mostar First Instance Court, 08/11/2010 11/10/2011 pending More than 7 year(s) and 5 month(s) and 9 day(s) 1,000 50824/16 26/07/2016 (2 applicants) Naim Imamović 06/05/1969 Ivan TOMIĆ 25/04/1968 Mostar First Instance Court, 04/06/2010 14/09/2011 pending More than 7 year(s) and 6 month(s) and 6 day(s) 1,000 50840/16 26/07/2016 (3 applicants) Mehmed Klepo 16/11/1969 Naser PAJO 05/04/1963 Sasa PECO 23/12/1976 Mostar Cantonal Court, 21/10/2010 08/02/2011 pending More than 8 year(s) and 1 month(s) and 12 day(s) 1,000 [1] . Plus any tax that may be chargeable to the applicants . [2] . Plus any tax that may be chargeable to the applicants . BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII