KAHRIMAN v. BOSNIA AND HERZEGOVINA - 4867/16 (Judgment : Violation of Right to a fair trial (Civil proceedings : Reasonable time)) [2017] ECHR 912 (17 October 2017)

JUDGMENT STRASBOURG 17 October 2017 This judgment is final but it may be subject to editorial revision. In the case of Kahriman v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Carlo Ranzoni, President, Faris Vehabović, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 26 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 4867/16 ) 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”) by a national of Bosnia and Herzegovina, Mr Junuz Kahriman (“the applicant”), on 8 January 2016. 2. The applicant was represented by Mr M. Maksimović, a lawyer practising in Bijeljina. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms S. Malešić. 3. On 16 December 2016 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1935 and lives in the United States. 5. On 18 August 2003 the applicant initiated civil proceedings against private persons concerning some contracts. On 6 June 2007 the Bijeljina Court of First Instance rendered a judgment. On 10 April 2009 the Bijeljina District Court quashed the first-instance judgment and remitted the case to the first-instance court for a retrial. On 19 May 2011 the Bijeljina Court of First Instance rendered a new judgment. That judgment was amended by the Bijeljina District Court on 23 September 2011 and by the Supreme Court of the Republika Srpska on 16 August 2012. 6. The applicant introduced a claim before the Constitutional Court, alleging that the above proceedings had been excessively long and requesting a financial compensation. On 17 June 2015 the Constitutional Court of Bosnia and Herzegovina found a breach of the applicant’s right to a trial within a reasonable time. It did not award any damages. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 7. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” A. Admissibility 8. The Government maintained that the applicant could no longer claim to be a “victim” within the meaning of Article 34 of the Convention for the reason that the Constitutional Court had acknowledged the alleged breach (see paragraph above). 9. According to the well-established case-law in length-of-proceedings cases, a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged a violation, either expressly or in substance , and afforded redress for it (see the principles set out in Cocchiarella v. Italy [GC], no. 64886/01 , §§ 69-98, ECHR 2006-V). Had the applicant failed to claim compensation before the Constitutional Court, the acknowledgment of a violation would, in itself, be appropriate and sufficient redress for the purposes of Article 34 of the Convention (see, by analogy, Lukić v. Bosnia and Herzegovina (dec.), no. 34379/03 , 18 November 2008). However, since the applicant claimed compensation for the breach of the “reasonable time” requirement (see paragraph above) and the Constitutional Court nevertheless did not award any damages, the applicant can still claim to be a “victim” (see, mutatis mutandis , Kudić v. Bosnia and Herzegovina , no. 28971/05 , § 18, 9 December 2008). Accordingly, the Government’s objection of loss of victim status must be dismissed. . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 11. The period to be taken into consideration began on 18 August 2003, when the applicant initiated the civil proceeding at issue, and ended on 16 August 2012, when the Supreme Court of the Republika Srpska rendered its final judgment. It thus lasted approximately nine years for three levels of jurisdiction. 12. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96 , § 43, ECHR 2000-VII). 13. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender , cited above). 14. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. 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.” 16. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention. Done in English, and notified in writing on 17 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea Tamietti Carlo Ranzoni Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII