Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 3927/15
Nahida ČALUK against Bosnia and Herzegovina
and 63 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 25 September 2018 as a Committee composed of:
Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The first applicant, MsČaluk, was represented by Mr A. Lozo, a lawyer practising in Travnik. The remaining applicants were represented by Ms H. Kapetan, a lawyer practising in Travnik. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
A. The circumstances of the cases
3. The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The facts submitted by the applicants
4. By 67 judgments of the Travnik Municipal Court and the Bugojno Municipal Court, the applicants’ employers, various public companies, were ordered to pay them different sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. The judgments became final between 19 December 2003 and 27 December 2012.
5. The applicants’ winding-up petitions were rejected on 27 May 2010 and 14 February 2011, respectively, because the Federal Ministry of Energy had refused authorisation (see paragraph 13 below). Consequently, in accordance with the 2003 Insolvency Act, the Federation of Bosnia and Herzegovina became liable for the debts of the applicants’ employers (see paragraph 13 below).
6. The Sarajevo Municipal Court issued enforcement orders between 10 October 2011 and 27 February 2013, in which the Federation of Bosnia and Herzegovina was designated as a debtor. They were transferred to the competent bank and were listed among the charges in the federal budget.
7. On several occasions thereafter the bank informed the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent.
2. The additional information provided by the Government
8. The Government did not dispute the facts submitted by the applicants. However, they provided additional information as follows.
9. Between 2 July 2013 and 27 November 2014 the applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).
10. On 17 March 2015 (decision no. AP 2892/13) the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the applicants’ cases on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the Federation of Bosnia and Herzegovina to take the necessary steps in order to secure the payment of its debt arising from the final judgments within a reasonable time.
11. Subsequently, between 16 July 2015 and 25 July 2016, and before the Government were given notice of the present applications (7 September 2016), the final judgments in the applicants’favour were fully enforced.
B. Relevant domestic law
12. The 2003 Enforcement Procedure Act (Zakon o izvršnompostupku, Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”), nos. 32/03, 52/03, 33/06, 39/06, 39/09, 35/12 and 46/16) provides for the limitation of enforcement of final judgments against the Federation of Bosnia and Herzegovina and the cantons: these will be enforced only within the amount of funds provided for that purpose in the federal and cantonal budgets which cannot be lower than 0,3% of the total budget (section 138 (3) and (6)). The enforcement will be carried out in a chronological order according to the time the judgments became final. The statutory prescription period does not apply to these claims (section 138 (5)).
13. Section 5 of the 2003 Insolvency Act (Zakon o stečajnompostupku, OG FBH, nos. 29/03, 32/04, 42/06 and 4/17), provides that a winding-up order may be made against the manufacturers of weapons and military technology with the authorisation of the Ministry of Energy only. If the Ministry refuses authorisation the Federation of Bosnia and Herzegovina becomes liable for the debts of the company.
COMPLAINT
14. The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the failure by the national authorities to enforce the final court decisions given in their favour.
THE LAW
15. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
16. The Government submitted that the applicants had failed to inform the Court of the fact that the final judgments in their favour had been fully enforced. They therefore suggested that the Court reject the applications as an abuse of the right of individual application in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
17. The applicants did not dispute the facts as presented by the Government. They argued instead that they had intended to inform the Court about the new developments in their reply to the Government’s observations.
18. The Court recalls that according to Rule 47 § 7 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. An application may be rejected as abusive under Article 35 § 3 of the Convention if it has been established that (a) it is knowingly based on untrue facts and false declarations (see Drijfhoutv. the Netherlands (dec.), no. 51721/09, § 29, 22 February 2011), or that (b) significant information and documents have been deliberately withheld, either where they were known from the outset (see Puusep v. Estonia (dec.), no. 67648/10, § 32, 7 January 2014) or where new significant developments have occurred during the procedure (see Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
19. Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see, for example, Gross v. Switzerland[GC], no. 67810/10, § 28, ECHR 2014).Lastly, it cannot be the task of the Court, a body which was set up under the Convention to ensure the observance of the engagements undertaken by the High Contracting Parties with respect to the Convention, to deal with a succession of ill-founded and querulous complaints, creating unnecessary work which is incompatible with its real functions (see Petrović v. Serbia (dec.), nos. 56551/11 and 10 others, 18 October 2011).
20. Turning to the present case, the Court notes that following the decision of the Constitutional Court (see paragraph 10 above), the final judgments in the applicants’favour were fully enforced between 16 July 2015 and 25 July 2016 (see paragraph 11 above). The applicants, however, did not inform the Court about that development. The Court notes that the enforcement occurred before notice of the applications was given to the Government and that no convincing explanation for this omission was provided.
21. Having regard to the fact that the information withheld concerned the very core of the applications, the Court finds that such conduct was contrary to the purpose of the right of individual application, as provided for in Article 34 of the Convention, and significantly impeded the proper functioning of the Court. In addition, lawyers must understand that, having due regard to the Court’s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it the introduction of unmeritorious complaints and, both before proceedings have been instituted and thereafter, they must inquire diligently into all the details of the case, meticulously abide by all the relevant rules of procedure and must urge their clients to do the same. Otherwise, the wilful or negligent misuse of the Court’s resources may undermine the credibility of lawyers’ work in the eyes of the Court and even, if it occurs systematically, may result in particular individual lawyers being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see Stevančević v. BosniaandHerzegovina (dec.), no. 67618/09, § 29, 10 January 2017).
22. In the light of the foregoing, the Court considers that the present applications constitute an abuse of the right of individual application within the meaning of Article 35 § 3 (a) in fine of the Convention. They must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 18 October 2018.
Andrea Tamietti Carlo Ranzoni
Deputy Registrar President
APPENDIX
LIST OF APPLICANTS
| No. | Application no. | Lodged on | Applicant
Date of birth Place of residence Nationality |
| 1. | 3927/15 | 15/12/2014 | Nahida ČALUK
07/10/1959 Bugojno Bosnia and Herzegovina |
| 2. | 4783/15 | 13/01/2015 | Enes KRNJIĆ
25/11/1957 Novi Travnik Bosnia and Herzegovina |
| 3. | 4795/15 | 13/01/2015 | Ibrahim SILAJDŽIJA
29/08/1949 Novi Travnik Bosnia and Herzegovina |
| 4. | 4799/15 | 13/01/2015 | Ismet RIZVIĆ
09/05/1962 Novi Travnik Bosnia and Herzegovina |
| 5. | 4815/15 | 13/01/2015 | Namik DUŽAN
27/02/1958 Novi Travnik Bosnia and Herzegovina |
| 6. | 4817/15 | 13/01/2015 | Muhamed KERIĆ
10/02/1954 Travnik Bosnia and Herzegovina |
| 7. | 4819/15 | 13/01/2015 | Ibrahim DELIĆ
07/02/1953 Novi Travnik Bosnia and Herzegovina |
| 8. | 4821/15 | 13/01/2015 | Adnan ZOLOTA
12/06/1963 Novi Travnik Bosnia and Herzegovina |
| 9. | 4824/15 | 13/01/2015 | Kasim ŠILJAK
26/09/1964 Novi Travnik Bosnia and Herzegovina |
| 10. | 4826/15 | 13/01/2015 | Edhem SILAJDŽIJA
03/03/1951 Novi Travnik Bosnia and Herzegovina |
| 11. | 4829/15 | 13/01/2015 | Fikret ZAHIROVIĆ
28/05/1958 Novi Travnik Bosnia and Herzegovina |
| 12. | 4833/15 | 13/01/2015 | Nesib SKOPLJAK
13/03/1961 Novi Travnik Bosnia and Herzegovina |
| 13. | 4837/15 | 13/01/2015 | Began HASKIĆ
26/07/1951 Novi Travnik Bosnia and Herzegovina |
| 14. | 4841/15 | 13/01/2015 | Vejsil ĐULIĆ
15/02/1951 Novi Travnik Bosnia and Herzegovina |
| 15. | 4842/15 | 13/01/2015 | Reflik ČAKIĆ
19/08/1963 Novi Travnik Bosnia and Herzegovina |
| 16. | 4848/15 | 13/01/2015 | Sead HASANOVIĆ
08/02/1960 Novi Travnik Bosnia and Herzegovina |
| 17. | 4850/15 | 13/01/2015 | Zajim KMETAŠ
10/04/1957 Novi Travnik Bosnia and Herzegovina |
| 18. | 4853/15 | 13/01/2015 | Hatidža POKVIĆ
06/08/1963 Novi Travnik Bosnia and Herzegovina |
| 19. | 4861/15 | 13/01/2015 | Meho ZUKIĆ
14/08/1968 Novi Travnik Bosnia and Herzegovina |
| 20. | 4951/15 | 13/01/2015 | Suvad HODŽIĆ
20/12/1960 Novi Travnik Bosnia and Herzegovina |
| 21. | 4952/15 | 13/01/2015 | Đemal KRNJIĆ
23/02/1962 Novi Travnik Bosnia and Herzegovina |
| 22. | 4957/15 | 13/01/2015 | Sabahudin HELDA
10/10/1958 Novi Travnik Bosnia and Herzegovina |
| 23. | 5817/15 | 21/01/2015 | Miljenka GRIZIĆ
22/06/1957 Novi Travnik Bosnia and Herzegovina |
| 24. | 7277/15 | 30/01/2015 | Asim NURKIĆ
04/09/1958 Bugojno Bosnia and Herzegovina |
| 25. | 7290/15 | 30/01/2015 | Senad HARAČIĆ
29/04/1957 Bugojno Bosnia and Herzegovina |
| 26. | 7299/15 | 30/01/2015 | Muradif ĆOSIĆ
29/06/1963 Bugojno Bosnia and Herzegovina |
| 27. | 7305/15 | 30/01/2015 | Mirsada RUSTEMPAŠIĆ
02/11/1951 Bugojno Bosnia and Herzegovina
|
| 28. | 7308/15 | 30/01/2015 | Ismet MALKOČ
17/11/1954 Bugojno Bosnia and Herzegovina |
| 29. | 7323/15 | 29/01/2015 | Sejad ČORBEG
15/09/1951 Novi Travnik Bosnia and Herzegovina |
| 30. | 7333/15 | 29/01/2015 | Suvad ZAIMOVIĆ
15/04/1964 Novi Travnik Bosnia and Herzegovina |
| 31. | 7357/15 | 30/01/2015 | Lutvo ĆATIĆ
27/08/1954 Bugojno Bosnia and Herzegovina |
| 32. | 7425/15 | 30/01/2015 | Senija BRZIKA
30/01/1965 Bugojno Bosnia and Herzegovina |
| 33. | 7437/15 | 30/01/2015 | Muhamed DAGOJA
18/04/1965 Bugojno Bosnia and Herzegovina |
| 34. | 7440/15 | 30/01/2015 | Aiša TALIĆ
13/02/1951 Bugojno Bosnia and Herzegovina |
| 35. | 7451/15 | 30/01/2015 | Bahrudin ĆATIĆ
14/06/1966 Bugojno Bosnia and Herzegovina |
| 36. | 7488/15 | 30/01/2015 | Asim NURKIĆ
04/09/1958 Bugojno Bosnia and Herzegovina |
| 37. | 10020/15 | 05/02/2015 | Safet ALIBEGOVIĆ
13/04/1956 Bugojno Bosnia and Herzegovina |
| 38. | 10035/15 | 05/02/2015 | Hanka DURADBEGOVIĆ
18/08/1957 Bugojno Bosnia and Herzegovina |
| 39. | 10765/15 | 23/02/2015 | Mirsad MUSIĆ
01/09/1965 Bugojno Bosnia and Herzegovina |
| 40. | 10775/15 | 23/02/2015 | Rasma KULAS
18/01/1960 DonjiVakuf Bosnia and Herzegovina |
| 41. | 10866/15 | 23/02/2015 | Ramiza ĆESO
01/02/1965 Bugojno Bosnia and Herzegovina |
| 42. | 10869/15 | 23/02/2015 | Sadija BRČIĆ
21/03/1966 Bugojno Bosnia and Herzegovina |
| 43. | 10872/15 | 23/02/2015 | Sead GURIĆ
05/09/1960 Bugojno Bosnia and Herzegovina |
| 44. | 10873/15 | 23/02/2015 | Nurudin JUSIĆ
21/10/1948 Bugojno Bosnia and Herzegovina |
| 45. | 10877/15 | 23/02/2015 | Enesa PURIVATRA
03/03/1960 Bugojno Bosnia and Herzegovina |
| 46. | 10880/15 | 23/02/2015 | Sulejman SULTANOVIĆ
30/12/1966 Bugojno Bosnia and Herzegovina |
| 47. | 10886/15 | 23/02/2015 | Nedžad LAKAČA
14/01/1963 Bugojno Bosnia and Herzegovina |
| 48. | 10890/15 | 23/02/2015 | Nedžad MANDARA
27/01/1968 Bugojno Bosnia and Herzegovina |
| 49. | 10895/15 | 23/02/2015 | Nermina TATARAGA
02/03/1971 Bugojno Bosnia and Herzegovina |
| 50. | 10900/15 | 23/02/2015 | Nurudin JUSIĆ
21/10/1948 Bugojno Bosnia and Herzegovina |
| 51. | 10906/15 | 23/02/2015 | Safeta HAJDAREVIĆ
25/10/1957 Bugojno Bosnia and Herzegovina |
| 52. | 10912/15 | 23/02/2015 | Sabahudin MISTRIĆ
19/10/1964 Bugojno Bosnia and Herzegovina |
| 53. | 10916/15 | 23/02/2015 | Mujesira HUSIĆ
10/07/1961 Bugojno Bosnia and Herzegovina |
| 54. | 11038/15 | 23/02/2015 | Nadžid KOSTEROVIĆ
28/12/1963 Bugojno Bosnia and Herzegovina |
| 55. | 11039/15 | 23/02/2015 | Hašim SADIKOVIĆ
02/06/1966 Bugojno Bosnia and Herzegovina |
| 56. | 11062/15 | 23/02/2015 | Fatima KIŠIJA
03/05/1964 Bugojno Bosnia and Herzegovina |
| 57. | 11068/15 | 23/02/2015 | Mirsad BATIĆ
02/01/1958 Bugojno Bosnia and Herzegovina |
| 58. | 11133/15 | 23/02/2015 | Azim VUGDALIĆ
05/01/1961 Bugojno Bosnia and Herzegovina |
| 59. | 11143/15 | 23/02/2015 | Emir BRČIĆ
31/12/1964 Bugojno Bosnia and Herzegovina |
| 60. | 11186/15 | 23/02/2015 | Sulejman SULTANOVIĆ
30/12/1966 Bugojno Bosnia and Herzegovina |
| 61. | 11315/15 | 23/02/2015 | Nađid KOSTEROVIĆ
28/12/1963 Bugojno Bosnia and Herzegovina |
| 62. | 11348/15 | 23/02/2015 | Fatima KIŠIJA
03/05/1964 Bugojno Bosnia and Herzegovina |
| 63. | 11359/15 | 23/02/2015 | Sead DAUTBEGOVIĆ
02/04/1968 Bugojno Bosnia and Herzegovina |
| 64. | 14105/15 | 04/03/2015 | Jasmina ŽDRALOVIĆ
28/02/1960 Bugojno Bosnia and Herzegovina |
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