FOURTH SECTION
\nCASE OF ZAHIROVI\u0106 AND OTHERS v. BOSNIA AND HERZEGOVINA
\n(Applications nos. 4954\/15, 7294\/15, 7311\/15, 7356\/15, 7419\/15, 7434\/15 and10758\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 October 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Zahirovi\u0107and Others v. Bosnia and Herzegovina,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Carlo Ranzoni, President, Having deliberated in private on 25 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in seven applications (nos.\u00a04954\/15, 7294\/15, 7311\/15, 7356\/15, 7419\/15, 7434\/15 and 10758\/15) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by sevencitizens of Bosnia and Herzegovina, Mr\u00a0Mujo\u00a0Zahirovi\u0107, Ms Ned\u017evijaMandara, Mr Miralem Mustajbegovi\u0107, Mr\u00a0NihadHrnjica, Mr ZijadD\u017eugum, Ms \u0110evadaHod\u017ei\u0107and MrFadil Pand\u017eo (\u201cthe applicants\u201d), between 13 January 2015 and 23 February 2015.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Ms H. Kapetan, a lawyer practising in Travnik. The Government of Bosnia and Herzegovina (\u201cthe Government\u201d) were represented by their Agent, Ms B. Skalonji\u0107.<\/p>\n 3.\u00a0\u00a0The applicants complained of the non-enforcement of final domestic judgments in their favour.<\/p>\n 4.\u00a0\u00a0On 7 September 2016 the Government were given notice of the applications.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicants were born in1968, 1960, 1966, 1962, 1959, 1955 and 1954, respectively, and live in Novi Travnik and Bugojno, Bosnia and Herzegovina.<\/p>\n 6.\u00a0\u00a0By seven judgments of the Travnik Municipal Court and the Bugojno Municipal Court, of 19 January 2007, 15 May 2008, 19 January 2006, 28\u00a0October 2011, 2 February 2009, 1 September 2009 and 9 April 2004, respectively, the applicants\u2019 employers, two companies manufacturing weapons and military technology, were ordered to pay them various sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. The judgments became final on 24 August 2007, 15 May 2008, 19 January 2006, 26 November 2011, 20 August 2009, 13 October 2009 and 13 April 2005, respectively.<\/p>\n 7.\u00a0\u00a0The applicants\u2019 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 14 below). Consequently, in accordance with the 2003 Insolvency Act, the Federation of Bosnia and Herzegovina became liable for the debts of the applicants\u2019 employers (see\u00a0paragraph 14 below).<\/p>\n 8.\u00a0\u00a0The Sarajevo Municipal Court issued enforcement orderson 9\u00a0November 2011, 21 February 2012, 17 April 2012, 25 April 2012, 5\u00a0July\u00a02012, 27 March 2012 and 9 August 2012, respectively, 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.<\/p>\n 9.\u00a0\u00a0On several occasions thereafter the bank informed the competent courts that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent.<\/p>\n 10.\u00a0\u00a0The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (\u201cthe Constitutional Court\u201d).<\/p>\n 11.\u00a0\u00a0On 17 March 2015 (decision no. AP 2892\/13) the Constitutional Court found a violation of Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the applicants\u2019 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. Although the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation.<\/p>\n 12.\u00a0\u00a0On the following dates in 2017 the finaljudgments in the applicants\u2019favour were fully enforced:<\/p>\n (i)\u00a0 on 10 January 2017 in respect of Mr MujoZahirovi\u0107;<\/p>\n (ii)\u00a0 on 9 January 2017 in respect of Ms Ned\u017evijaMandara;<\/p>\n (iii)\u00a0 on 13 April 2017 in respect of Mr Miralem Mustajbegovi\u0107;<\/p>\n (iv)\u00a0 on 17 January 2017 in respect of Mr Nihad Hrnjica;<\/p>\n (v)\u00a0 on 11 January 2017 in respect of Mr Zijad D\u017eugum;<\/p>\n (vi)\u00a0 on 17 January 2017 in respect of Ms \u0110evadaHod\u017ei\u0107; and<\/p>\n (vii)\u00a0 on 13 April 2017 in respect of Mr FadilPand\u017eo.<\/p>\n The payments made in the applicants\u2019 favour included the reimbursement of the costs sustained for the enforcement procedure.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a02003 Enforcement Procedure Act of the Federation of Bosnia and Herzegovina<\/strong><\/p>\n 13.\u00a0\u00a0The 2003 Enforcement Procedure Act (Zakon o izvr\u0161nom postupku, Official Gazette of the Federation of Bosnia and Herzegovina (\u201cOG FBH\u201d), 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\u00a0(5)).<\/p>\n B.\u00a02003 Insolvency Act of the Federation of Bosnia and Herzegovina<\/strong><\/p>\n 14.\u00a0\u00a0Section 5 of the 2003 Insolvency Act (Zakon o ste\u010dajnompostupku, 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.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0JOINDER OF THE APPLICATIONS<\/p>\n 15.\u00a0\u00a0Given their common factual and legal background, the Court decides to join these seven applications pursuant to Rule 42 \u00a7 1 of the Rules of Court.<\/p>\n II.\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 16.\u00a0\u00a0The applicants complained of the non-enforcement of the final domestic judgments in their favour. They relied on Article\u00a06 \u00a7 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.<\/p>\n Article 6 \u00a7 1, in so far as relevant, provides:<\/p>\n \u201cIn the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n Article 1 of Protocol No. 1 to the Convention reads as follows:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n 17.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Whether the applicants may claim to be \u201cvictims\u201d<\/em><\/p>\n 18.\u00a0\u00a0Although the respondent State did not raise any objection as to the Court\u2019s competence ratione personae, this issue calls for consideration ex officio by the Court(see Sejdi\u0107 and Finci v.\u00a0Bosnia and Herzegovina [GC], nos. 27996\/06 and 34836\/06, \u00a7 27, ECHR 2009).<\/p>\n 19.\u00a0\u00a0The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his victim status unless the national authorities have acknowledged the alleged breach and afforded appropriate and sufficientredress (see Scordino v. Italy (no. 1) [GC], no.\u00a036813\/97, \u00a7\u00a7\u00a0180 and 193, ECHR 2006\u2011V). Theredress afforded by the national authorities must be appropriate and sufficient (seeKudi\u0107\u00a0v.\u00a0Bosnia and Herzegovina, no. 28971\/05, \u00a7 17, 9\u00a0December\u00a02008). While it is true that the national authorities expressly acknowledged the breach alleged in the present case, the applicants were not able to obtain any compensation in respect of the delayed enforcement of the judgments (see paragraph 11\u00a0above). Therefore, they may still claim to be victims within the meaning of Article 34 of the Convention in relation to the period during which the judgments remained unenforced (see Runi\u0107 and Others v. Bosnia and Herzegovina, nos. 28735\/06 and 26 others, \u00a7 16, 15 November 2011).<\/p>\n 2.\u00a0\u00a0Other grounds of inadmissibility<\/em><\/p>\n 20.\u00a0\u00a0The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 21.\u00a0\u00a0The applicantsargued that although the final judgments in question had in the meantime been enforced, there had been a violation of their Convention rights in respect of the time during which the judgments remained unenforced.<\/p>\n 22.\u00a0\u00a0The Government submitted that some delays in the enforcement of the domestic judgments in question were necessary. The federal government had been faced with a large number of final judgments and had not been able to enforce them all at once without jeopardising its macroeconomic stability and fiscal sustainability.<\/p>\n 23.\u00a0\u00a0The general principles relating to the non-enforcement of domestic judgments were set out in Jeli\u010di\u0107 v. Bosnia and Herzegovina (no. 41183\/02, \u00a7\u00a7 38-39, ECHR 2006\u2011XII). Notably, the Court has held that it is not open to authorities to cite lack of funds as an excuse for not honouring a judgment debt (see, also, Spahi\u0107 and Others v. Bosnia and Herzegovina, nos.\u00a020514\/15 and 15 others, \u00a7 25, 14 November 2017, and Kuni\u0107 and Others v. Bosnia and Herzegovina, nos. 68955\/12 and 15 others, \u00a7 26, 14\u00a0November 2017). 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 \u00a7 1 (see\u00a0Burdov v. Russia, no.\u00a059498\/00, \u00a7\u00a035, ECHR 2002\u2011III, and Teteriny v.\u00a0Russia, no.\u00a011931\/03, \u00a7\u00a041, 30 June 2005).<\/p>\n 24.\u00a0\u00a0In addition, the Court reiterates that the impossibility of obtaining the execution of a final judgment in an applicant\u2019s 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, \u00a7 40; Jasi\u016bnien\u0117 v.\u00a0Lithuania, no.\u00a041510\/98, \u00a7 45, 6 March 2003; and Voytenko v. Ukraine, no.\u00a018966\/02, \u00a7 53, 29 June 2004).<\/p>\n 25.\u00a0\u00a0The Court notes that the domestic judgments under consideration in the present case remained unenforced for a period comprised between four and more than five years. Similar delays were in the past considered to be excessive (seeSpahi\u0107 and Others, cited above, \u00a7 30;Runi\u0107 and Others, cited above, \u00a7 21; and Jeli\u010di\u0107, citedabove, \u00a7 40). The Court does not see any reason to depart from that jurisprudence.<\/p>\n 26.\u00a0\u00a0Accordingly, the Court considers that in the present case there has been a breach of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 28.\u00a0\u00a0The applicants claimed 1,500 euros (EUR) each in respect of non-pecuniary damage.<\/p>\n 29.\u00a0\u00a0The Government submitted that the finding of a violation would constitute sufficient just satisfaction.<\/p>\n 30.\u00a0\u00a0The Court accepts that the applicants suffered distress, anxiety and frustration as a result of the respondent State\u2019s failure to enforce final domestic judgments in their favour. Making its assessment on an equitable basis, as required by Article 41 of the Convention, it awards EUR 1,000[1], plus any tax that may be chargeable, to each of the applicants.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 31.\u00a0\u00a0The applicants claimed EUR 627.99 each for the costs and expenses incurred before the Constitutional Court and the Court. In addition to that,MrMustajbegovi\u0107andMr Pand\u017eo claimed EUR 248.23 and EUR 187.51, respectively, for the costs and expenses incurred in the domestic enforcement proceedings.<\/p>\n 32.\u00a0\u00a0The Government considered the amounts claimed to be excessive and unjustified.<\/p>\n 33.\u00a0\u00a0According to the Court\u2019s 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 (see, for example, Iatridis v. Greece (just satisfaction) [GC], no.\u00a031107\/96, \u00a7\u00a054, ECHR 2000-XI). That is to say, 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 breaches found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met(see Maktouf and Damjanovi\u0107v.\u00a0Bosnia and Herzegovina [GC], nos. 2312\/08 and 34179\/08, \u00a7 94, ECHR 2013 (extracts)).<\/p>\n 34.\u00a0\u00a0In 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 to each of the applicants, covering costs incurred domestically before the Constitutional Court and before this Court. As regards the costs incurred in the domestic enforcement proceedings, claimed by MrMustajbegovi\u0107andMr Pand\u017eo, the Court notes that in the meantime, after they had submitted their claims for costs and expenses, the final judgments in their favour were fully enforced. The payments made in their favour included the reimbursement of the costs sustained for the enforcement procedure (see paragraph 12 above).<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 35.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decides to join the applications;<\/p>\n 2.\u00a0\u00a0Declaresthe applications admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay to each of the applicants, within three months,the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 500 (five hundred euros)plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 6.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 16 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Carlo Ranzoni _________________<\/p>\n [1]The same amount was awarded in Spahi\u0107 and Others v. Bosnia and Herzegovina, nos.\u00a020514\/15 and 15 others, \u00a7 38, 14 November 2017, and in Kuni\u0107 and Others v. Bosnia and Herzegovina, nos. 68955\/12 and 15 others, \u00a7 40, 14 November 2017.<\/p>\n
\nFaris Vehabovi\u0107,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n