OMERBASIC AND OTHERS v. BOSNIA AND HERZEGOVINA - 4359/19 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2021] ECHR 1016 (02 December 2021)

JUDGMENT STRASBOURG 2 December 2021 This judgment is final but it may be subject to editorial revision. In the case of Omerbašić and Others v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Armen Harutyunyan, President, Jolien Schukking, Ana Maria Guerra Martins, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 10 November 2021, 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 Government of Bosnia and Herzegovina (“the Government”) were given notice of the applications. THE FACTS 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicant s complained of the non-enforcement of domestic decisions against the Sarajevo Canton . THE LAW I. JOINDER OF THE APPLICATIONS 5. 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. 1 6. The applicants 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. 1, which read as follows: Article 6 § 1 “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.” 7. 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 1997‑II). 8. 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. 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, §§ 26-31, 14 November 2017, the Court already found a violation in respect of issues similar to those in the present case. 10. 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 applicants’ favour. 11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 12. 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.” 13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Spahić and Others , cited above, §§ 36-43, and Kunić and Others, cited above, §§ 37-46), the Court considers it reasonable to award the sums indicated in the appended table. 14. The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. 15. 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. 1 concerning the non-enforcement or delayed 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 applicants, 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 2 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Armen Harutyunyan Acting Deputy Registrar President APPENDIX List of applications raising complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (non-enforcement or delayed enforcement of domestic decisions) No. Application no. Date of introduction Applicant’s name Year of birth Representative’s name and location Relevant domestic decision Start date of non-enforcement period Length of enforcement proceedings Amount awarded for non-pecuniary damage per applicant (in euros) [1] [2] Amount awarded for costs and expenses per application (in euros) [3] 4359/19 07/12/2018 (5 applicants) Zilha OMERBAŠIĆ Diana BRKOVIĆ Amra SARAČEVIĆ Mediha HADŽIĆ Mubera KANILIĆ Muhić Nedim Sarajevo Sarajevo Municipal Court, 29/03/2015 18/05/2015 pending More than 6 year(s) and 4 month(s) and 26 day(s) 1,000 16768/19 20/03/2019 (3 applicants) Vedat SPAHIĆ Žarko MAKSIMOVIĆ Neđida DEDOVIĆ Muhić Nedim Sarajevo Sarajevo Municipal Court, 13/02/2013 16/04/2014 pending More than 7 year(s) and 5 month(s) and 28 day(s) 1,000 25073/19 03/05/2019 (3 applicants) Ermin ŠEHIĆ Lejla HADŽIMURATOVIĆ Damir TERZO Sarajevo Municipal Court (applicant ŠEHIĆ), 08/01/2013 Sarajevo Municipal Court (applicant HADŽIMURATOVIĆ), 08/01/2013 Sarajevo Municipal Court (applicant TERZO), 08/01/2013 21/02/2017 27/02/2017 06/03/2017 pending More than 4 year(s) and 7 month(s) and 23 day(s) pending More than 4 year(s) and 7 month(s) and 17 day(s) pending More than 4 year(s) and 7 month(s) and 8 day(s) 1,000 37109/19 24/06/2019 Neven PECIREP Sarajevo Municipal Court, 22/06/2012 Sarajevo Municipal Court, 28/11/2015 21/04/2016 26/04/2016 pending More than 5 year(s) and 5 month(s) and 23 day(s) pending More than 5 year(s) and 5 month(s) and 18 day(s) 1,000 56667/19 24/10/2019 Branka ARSLANAGIĆ Kovač Nermin Zenica Sarajevo Municipal Court, 30/11/2012 Sarajevo Municipal Court, 28/05/2015 31/10/2013 30/01/2017 pending More than 7 year(s) and 11 month(s) and 14 day(s) pending More than 4 year(s) and 8 month(s) and 14 day(s) 1,000 [1] Plus any tax that may be chargeable to the applicants. [2] Less any amounts which may have already been paid in that regard at the domestic level. [3] Plus any tax that may be chargeable to the applicants. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII