Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 7416/15
Dervo KARAŠIN
against Bosnia and Herzegovina
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 application lodged on 30 January 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr DervoKarašin, is a citizen of Bosnia and Herzegovina, who was born in 1963 and lives in Bugojno. He was represented before the Court by Ms H. Kapetan, a lawyer practising in Travnik.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The facts submitted by the applicant
4. On 21 June 2006 the Bugojno Municipal Court ordered the applicant’s employer, a company manufacturing weapons and military technology, to pay the applicant 6,788 convertible marks (approximately 3,420 euros) in respect of unpaid salaries together with default interest at the statutory rate and legal costs. The judgment became final on 22 July 2007.
5. On 14 February 2011 the Travnik Municipal Court rejected the applicant’s winding-up petition because the Federal Ministry of Energy had refused authorisation (see paragraph 11 below). Consequently, in accordance with the 2003 Insolvency Act, the Federation of Bosnia and Herzegovina became liable for the applicant’s employer’s debts (see paragraph 11 below).
6. On 29 May 2012 the Sarajevo Municipal Court issued an enforcement order.
2. The additional information provided by the Government
7. The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows.
8. On 27 April 2007 the applicant and his employer settled the case before the Bugojno Municipal Court.
9. On 20 December 2012 the Attorney General of the Federation of Bosnia and Herzegovina submitted a request with the Sarajevo Municipal Court for the termination of the enforcement proceedings (see paragraph 6 above) in view of the fact that the case had been settled. It would appear that these proceedings are still ongoing.
10. On 17 March 2015 (decision no. AP 2892/13) the Constitutional Court of Bosnia and Herzegovina (“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 applicant’s and in 85 other cases on account of the prolonged non-enforcement of the final judgments in their favour. It would appear that the Constitutional Court was not aware that the applicant’s case had been settled.
B. Relevant domestic law
11. Section 5 of the 2003 Insolvency Act (Zakon o stečajnompostupku, Official Gazette of the Federation of Bosnia and Herzegovina, 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
12. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the final judgment of 21 June 2006.
THE LAW
13. The Government submitted that the applicant had already settled the case and that his application should be rejected as premature because the proceedings concerning the Attorney General’s request were still ongoing (see paragraph 9 above).
14. The applicant did not dispute the facts as presented by the Government.
15. The Court does not find it necessary to decide on the Government’s objection because the application is in any event inadmissible for the following reasons.
16. 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 (a) 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 or where new significant developments have occurred during the procedure (see Puusep v. Estonia (dec.), no. 67648/10, § 32, 7 January 2014, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
17. 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).
18. Turning to the present case, the Court notes that the applicant had settled the case with his employer on 27 April 2007 (see paragraph 8 above). This information had neither been disclosed in the application lodged with the Court on 30 January 2015 nor later during the proceedings. The applicant and his representative did not provide any explanation for this omission.
19. Having regard to the fact that the information withheld concerned the very core of the application, 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 willful 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).
20. In the light of the foregoing, the Court considers that the present application constitutes an abuse of the right of individual application within the meaning of Article 35 § 3 (a) in fine of the Convention. It must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Andrea Tamietti Carlo Ranzoni
Deputy Registrar President
Leave a Reply