BRADARIC v. BOSNIA AND HERZEGOVINA - 84721/17 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2019] ECHR 852 (03 December 2019)

JUDGMENT STRASBOURG 3 December 2019 This judgment is final but it may be subject to editorial revision. In the case of Bradarić v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Iulia Antoanella Motoc, President, Faris Vehabović, Carlo Ranzoni, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 12 November 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 84721/17 ) 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 Nedžad Bradarić (“the applicant”), on 14 December 2017. 2. The applicant was represented by Zajednička advokatska kancelarija Jezdić & Matuzović, a law firm from Tuzla. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonji ć . 3. On 13 November 2018 notice of the complaint concerning non‑enforcement was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1954 and lives in Tuzla. 5. On 26 April 2012 the applicant and his former employer, a private company based in Tuzla, concluded a settlement before the Tuzla Municipal Court concerning the applicant’s severance pay. 6. On 29 August 2012 the applicant filed a request with the Tuzla Municipal Court for enforcement of the settlement. 7. On 20 March 2017 the applicant lodged a constitutional appeal complaining about the non-enforcement of the settlement in question. 8. On 15 June 2017 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) found a violation of Article 6 § 1 of the Convention and ordered the Tuzla Municipal Court to expedite the enforcement proceedings. The Constitutional Court also awarded the applicant 1,000 convertible marks (BAM [1] ; approximately 500 EUR), in respect of non‑pecuniary damage . 9. On 27 September 2017, following a request submitted by a third party (a company which brought a civil action against the applicant’s former employer in a separate set of proceedings), the Tuzla Municipal Court postponed the enforcement proceedings until the end of the proceedings initiated by the third party. The applicant appealed against that decision. 10. On 15 November 2017 the Tuzla Cantonal Court overturned the decision of 27 September 2017 and rejected the third party’s request. It furthermore ordered the third party to pay the applicant BAM 1,053 in legal costs. 11. At the date of the latest information available to the Court (28 June 2019), the enforcement proceedings in the applicant’s case were still pending . THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 12. The applicant complained of the non-enforcement of the court‑approved settlement. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. Article 6 § 1, in so far as relevant, provides: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No. 1 reads as follows: 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.” A. Admissibility 1. Whether the applicant may claim to be a “victim” 13. The Government argued that the applicant could no longer claim to be a victim as the Constitutional Court had acknowledged the breach complained of and had awarded him BAM 1,000 (see paragraph 8 above). They considered the amount sufficient, taking into account the local circumstances and the GDP of Bosnia and Herzegovina. 14. The applicant maintained that non-pecuniary damage was not the only claim he was making before the Constitutional Court; he also sought the enforcement of the court-approved settlement. 15. The Court reiterates that 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, either expressly or in substance, and then afforded redress for, the relevant breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97 , § 180, ECHR 2006‑V, and Rooman v. Belgium [GC], no. 18052/11 , § 129, 31 January 2019). The redress afforded by the national authorities must be appropriate and sufficient (see Kudić v. Bosnia and Herzegovina , no. 28971/05 , § 17, 9 December 2008). 16. The Court notes that in the present case the Constitutional Court found that the applicant’s right to the enforcement within a reasonable time had been violated, thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court’s case law. Moreover, the Constitutional Court awarded the applicant BAM 1,000 and ordered the proceedings in question to be expedited (see paragraph 8 above). 17. With regard to the second condition, the Court has already held in cases regarding violations of the reasonable-time requirement that one of the characteristics of sufficient redress, which may remove a litigant’s victim status, relates to the amount awarded as a result of using the domestic remedy (see Cocchiarella v. Italy [GC], no. 64886/01 , § 93, ECHR 2006‑V). The Court can also perfectly well accept that a State which has introduced a number of remedies, one of which is designed to expedite proceedings and one to afford compensation, will award amounts which – while being lower than those awarded by the Court – are not unreasonable, on condition that the relevant decisions, which must be consonant with the legal tradition and the standard of living in the country concerned, are speedy, reasoned and executed very quickly (see Cocchiarella, cited above, § 97). 18. The principles developed in the context of length-of-proceedings cases are also applicable in the situation where applicants complain of the protracted non-enforcement of final and enforceable judgments in their favour, as in the present case (see Kudić, cited above, § 17). 19. Turning to the present case, the Court notes that although the Constitutional Court awarded the applicant non-pecuniary damage, the amount awarded does not correspond to what the Court would have been likely to award under Article 41 of the Convention. It therefore cannot be regarded as adequate in the circumstances of the case (see, mutatis mutandis , Kudić , cited above, § 18, and Alagić v. Croatia , no. 17656/07 , § 21, 11 February 2010). Furthermore, the Constitutional Court’s judgment of 15 June 2017 remained unenforced in the part ordering to expedite the enforcement proceedings which were, on 28 June 2019, still pending (see paragraph 11 above). 20. The applicant can therefore still claim to be a “victim” within the meaning of Article 34 of the Convention and the Government’s objection must be dismissed. 2. Other grounds of inadmissibility 21. The Court notes that this application is neither manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 22. The Government argued that over the past few years the Constitutional Court had been facing a large number of similar applications concerning the length of enforcement proceedings which were not isolated incidents but a consequence of systemic flaws in the organisation of the judiciary. However, certain measures have been employed in order to remedy that situation. 23. The Court reiterates that the general principles relating to the non‑enforcement of domestic judgments were set out in Jeličić v. Bosnia and Herzegovina (no. 41183/02 , §§ 38-39, ECHR 2006 XII). 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 (see Burdov v. Russia , no. 59498/00 , § 35, ECHR 2002‑III, and Teteriny v. Russia , no. 11931/03 , § 41, 30 June 2005). 24. In addition, the Court reiterates that the impossibility of obtaining the execution of a final judgment in an applicant’s favour constitutes an interference with his or her right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov , cited above, § 40; Jasiūnienė v. Lithuania , no. 41510/98 , § 45, 6 March 2003; and Voytenko v. Ukraine , no. 18966/02 , § 53, 29 June 2004). 25. The Court observes that on 29 August 2012 the applicant lodged a request for enforcement of the court-approved settlement of 26 April 2012 (see paragraphs 5 and 6 above). Despite the fact that the Constitutional Court acknowledged the breach of Article 6 of the Convention, awarded the applicant non-pecuniary damages and ordered the enforcement proceedings to be expedited (see paragraph 8 above), the proceedings in question were, on the date of the latest information available to the Court (28 June 2019 – see paragraph 11 above), still pending. The Government did not put forward any argument justifying the absence of activities on the part of the domestic authorities. The information concerning the general situation in the judiciary, provided by the Government (see paragraph 22 above), cannot justify the prolonged non-enforcement in the present case. 26. In view of the above and the fact that the court-approved settlement of 26 April 2012 remained unenforced at least until 28 June 2019, the Court concludes that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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.” A. Damage 28. The applicant claimed EUR 2,100 in respect of non-pecuniary damage. 29. The Government considered this amount to be excessive and unjustified. 30. According to the Court’s case-law and having in mind that the Constitutional Court already awarded the applicant approximately EUR 500 for non-pecuniary damage (see paragraph 8 above), the Court considers it reasonable to award the applicant EUR 1,600 under this head. 31. The Court further notes that the respondent State has an outstanding obligation to ensure that all the necessary steps are taken to allow the domestic proceedings under consideration in this case to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice. B. Costs and expenses 32. The applicant also claimed EUR 500 for the costs and expenses incurred before the Constitutional Court and before the Court. 33. The Government contested this amount finding it unjustified. 34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC] , nos. 2312/08 and 34179/08, § 94, ECHR 2013 (extracts)). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering all costs. C. Default interest 35. 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. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention; 3. Holds (a) that the respondent State is to ensure that all the necessary steps are taken to allow the domestic proceedings under consideration in this case to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice, and to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 1,600 (one thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea Tamietti Iulia Antoanella Motoc Deputy Registrar President [1] . The convertible mark uses the same fixed exchange rate to the euro that the German mark has (1 euro = 1.95583 convertible marks). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII