FOURTH SECTION
\nCASE OF MARTINOVI\u0106v. BOSNIA AND HERZEGOVINA
\n(Application no. 41749\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n25 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Martinovi\u0107 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 4 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 an application (no.\u00a041749\/12) 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 a national of Bosnia and Herzegovina, Ms\u00a0Bo\u017eana\u00a0Martinovi\u0107(\u201cthe applicant\u201d), on 12 June 2012.<\/p>\n 2.\u00a0\u00a0The applicantwas self-represented. The Government of Bosnia and Herzegovina(\u201cthe Government\u201d) were represented by their Agent, Ms\u00a0B.\u00a0Skalonji\u0107.<\/p>\n 3.\u00a0\u00a0On 12 December 2016 the application was communicated to the Government.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1955 and lives in Assemini (Italy).<\/p>\n A.\u00a0\u00a0The first set of proceedings<\/strong><\/p>\n 6.\u00a0\u00a0Bya decision of 4 December 2006 of the Cantonal Prosecutor of the Hercegovina-Neretva Canton (Hercegova\u010dko-neretvanskikanton; one of the ten cantons of the Federation of Bosnia and Herzegovina)the applicant was granted the reimbursement of costs which she had incurred as a witness in the amount of 519\u00a0convertible marks (BAM)[1].<\/p>\n 7.\u00a0\u00a0On 29 February 2008 the Mostar Municipal Court (\u201cthe Municipal Court\u201d) rejected the applicant\u2019s request for the enforcement of this decision,deeming it unenforceable.<\/p>\n 8.\u00a0\u00a0On 18 September 2008 the Mostar Cantonal Court (\u201cthe Cantonal Court\u201d) quashed this decision and remitted the case for reconsideration.<\/p>\n 9.\u00a0\u00a0On 19 November 2008 the Municipal Court issued a writ of execution (rje\u0161enje o izvr\u0161enju).<\/p>\n 10.\u00a0\u00a0On 19 June 2009 the Municipal Courtupheld the objection lodged against this decision.<\/p>\n 11.\u00a0\u00a0On 1 April 2010 the Cantonal Court quashed this decision and again remitted the case to the Municipal Court.<\/p>\n 12.\u00a0\u00a0On 18 February 2011 the Municipal Court partly accepted the objection against the writ of execution specifically as regards the interest on the main debt calculated from 4 January 2007, and the interest on the total costs of the enforcement proceedings.<\/p>\n 13.\u00a0\u00a0On 2 December 2011 the Cantonal Courtupheld this decision.<\/p>\n 14.\u00a0\u00a0On 19 September 2013 the Supreme Court of the Federation of Bosnia and Herzegovina dismissed the applicant\u2019s request for revision as inadmissible.<\/p>\n 15.\u00a0\u00a0On 23 December 2013 the Constitutional Court of Bosnia and Herzegovina partially accepted the applicant\u2019s appeal and thereby found a violation of her right to a trial within a reasonable time, due to the non-enforcement of the decision of the Municipal Courtof 18 February 2011 (see paragraph 12 above).It also ordered the Hercegovina-Neretva Canton to undertake measures in order to enforce the decision within a reasonable time.The Constitutional Court, however, did not award the non-pecuniary damage requested by the applicant.<\/p>\n 16.\u00a0\u00a0On 21 October 2014 the Constitutional Court of Bosnia and Herzegovina confirmed that the final decision in question had not yet been enforced.<\/p>\n 17.\u00a0\u00a0On 18 December 2014 the said final decision was enforced and the applicant was paid in cash.<\/p>\n B.\u00a0\u00a0The second set of proceedings<\/strong><\/p>\n 18.\u00a0\u00a0Bya judgment of the Municipal Court of 3 April 2009, which became final on 16 December 2009, a certain P.M. was ordered to pay the applicant the costs of civil proceedings in the amount of BAM 1,959.<\/p>\n 19.\u00a0\u00a0On 31 October 2010 the applicant submitted to the Municipal Court a request for the enforcement of this judgment.<\/p>\n 20.\u00a0\u00a0On 14 September 2011, 4 November 2011 and 5 October 2012 the applicant submitted requests for the acceleration of the enforcement proceedings.<\/p>\n 21.\u00a0\u00a0On 5 December 2012 the Municipal Court issued a writ of execution.<\/p>\n 22.\u00a0\u00a0On 13 June 2013 the Municipal Court dismissed the objection lodged against its decision of 5 December 2012, and P.M. subsequently appealed this decision to the Cantonal Court.<\/p>\n 23.\u00a0\u00a0On 17 September 2013 the Constitutional Court of Bosnia and Herzegovina found a violation of the applicant\u2019s right to a trial within a reasonable time, due to the duration of the enforcement proceedings before the Municipal Court. It further ordered the Cantonal Court to urgently rule on the appeal lodged by P.M.The Constitutional Court, however, did not award the non-pecuniary damage requested by the applicant.<\/p>\n 24.\u00a0\u00a0On 16 October 2013 the Cantonal Court dismissed the appeal lodged by P.M.<\/p>\n 25.\u00a0\u00a0On 11 June 2015 the Municipal Court issued a writ of execution.<\/p>\n 26.\u00a0\u00a0On 4 August 2016 the said final judgment was enforced and the applicant was paid in cash on her bank account in Bosnia and Herzegovina. It appears that the applicant was still living in Italy at that time.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1<\/p>\n 27.\u00a0\u00a0The applicant complained that thedelayed enforcement of the final and enforceable domestic decisions rendered in her favour violated her rights under Article 6 of the Convention and Article 1 of Protocol No. 1,which, in so far as relevant, read as follows:<\/p>\n Article 6<\/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<\/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 A.\u00a0\u00a0Admissibility<\/p>\n 1.\u00a0\u00a0The Government\u2019s objection of abuse of the right of individual application<\/em><\/p>\n 28.\u00a0\u00a0The Government argued, in relation to the second set of proceedings, that the application constitutes an abuse of the right of petition, as the applicant failed to inform the Court, in the supplement to her application of 2 November 2016, that the decision rendered in her favour had in fact been fully enforced by August 2016 (see paragraph 26 above).<\/p>\n 29.\u00a0\u00a0The applicant disagreed and reiterated her complaints.<\/p>\n 30.\u00a0\u00a0The Court recalls that according to Rule 47 \u00a7 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 \u00a7 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see, among other authorities,Kerechashvili v. Georgia (dec.), no. 5667\/02, ECHR 2006\u2011V). 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\u00a0Predescu v. Romania, no. 21447\/03, \u00a7\u00a7 25 and 26, 2 December 2008, and Gross v. Switzerland [GC], no. 67810\/10, \u00a7 28, ECHR 2014).<\/p>\n 31.\u00a0\u00a0Turning to the present case, the Court notes that at the time when the applicant lodged her application on 12 June 2012 the decision in the second set of her proceedings had still not been enforced (see, a contrario, Stevan\u010devi\u0107 v. Bosnia and Herzegovina (dec.), no. 67618\/09, \u00a7\u00a7 27 and 28, 10 January 2017), that the payment was ultimatelymade on the applicant\u2019s bank account in Bosnia and Herzegovina, while she lived in Italy (see paragraph 26 above), and that the applicant was not represented by a lawyer before the Court.<\/p>\n 32.\u00a0\u00a0In view of the above, the Court cannot conclude that conduct of the applicant was incompatible with the purpose of the right of individual application as provided for in the Convention, or it has significantly impeded the proper functioning of the Court. Bearing in mind that the inadmissibility of an application on the ground that it constitutes an abuse of the right of application must remain an exception (see S.A.S.v. France [GC], no.\u00a043835\/11, \u00a7 68, ECHR 2014 (extracts)), the Court dismisses the Government\u2019s objection in this regard.<\/p>\n 2.\u00a0\u00a0The Government\u2019s objection of loss of victim status<\/em><\/p>\n 33.\u00a0\u00a0The Government further maintained that the applicant had lost her victim status as the decisions in her favour had been fully enforced.<\/p>\n 34.\u00a0\u00a0The applicant disagreed.<\/p>\n 35.\u00a0\u00a0The Court has always held 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 sufficient redress (see Scordino v. Italy (no. 1) [GC], no. 36813\/97, \u00a7\u00a7 180 and 193, ECHR 2006\u2011V, and Kudi\u0107 v. Bosnia and Herzegovina, no. 28971\/05, \u00a7 17, 9\u00a0December 2008). While it is true that the national authorities expressly acknowledged the breach alleged in the present case, the applicant wasawarded no compensation in respect of the delayed enforcement of the decisions in question (paragraph 15 and 23 above). Therefore, she may still claim to be a victim, within the meaning of Article 34, of an alleged violation of the rights guaranteed by Article 6 \u00a7 1of the Convention and by Article 1 of Protocol No. 1 in relation to the period during which the said decisions remained unenforced (see, mutatis mutandis, Dubenko v. Ukraine, no. 74221\/01, \u00a7 36, 11 January 2005).<\/p>\n 36.\u00a0\u00a0The Government\u2019s objection must hence be dismissed.<\/p>\n 3.\u00a0\u00a0Other grounds for inadmissibility<\/em><\/p>\n 37.\u00a0\u00a0The Court lastly notes that the application is otherwise neither manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention nor inadmissible on any other ground. It accordingly declares it admissible.<\/p>\n B.\u00a0\u00a0Merits<\/p>\n 38.\u00a0\u00a0The general principles relating to the non-enforcement or delayed enforcement of final domestic judgments are set out in Hornsby v.\u00a0Greece (19 March 1997, \u00a7\u00a040, Reports of Judgments and Decisions 1997\u2011II) andJeli\u010di\u0107 v. Bosnia and Herzegovina (no. 41183\/02, \u00a7\u00a7 38-39, ECHR 2006\u2011XII).<\/p>\n 39.\u00a0\u00a0The Court has repeatedly found violations of Article 6 of the Convention and Article 1 of Protocol No. 1 in respect of issues similar to those in the present case (see, for example,Jeli\u010di\u0107, cited above, and\u010coli\u0107 and Others v.\u00a0Bosnia and Herzegovina, nos. 1218\/07 and 14 others, 10\u00a0November2009).<\/p>\n 40.\u00a0\u00a0Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In view of its case-law on the subject, and the fact that the final decisions under consideration havenot been enforced for more than sixyears, the Court considers that there has been a breach of Article 6 \u00a7 1 of the Convention and of Article 1 of Protocol No. 1.<\/p>\n II.\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 41.\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 42.\u00a0\u00a0The applicant claimed 12,320 euros (EUR) in respect of non-pecuniary damage in relation to both sets of proceedings.<\/p>\n 43.\u00a0\u00a0The Government contested this claim.<\/p>\n 44.\u00a0\u00a0The Court accepts that the applicant has sustained some non-pecuniary loss arising from the breaches of the Convention found in this case which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, as required by Article\u00a041 of the Convention, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 45.\u00a0\u00a0The applicant claimed EUR 1,512 for costs and expenses incurred before the domestic courts and for those incurred before the Court, in relation to both sets of proceedings.<\/p>\n 46.\u00a0\u00a0The Government contested this claim.<\/p>\n 47.\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, are reasonable as to quantum and concern proceedings that are related to the violation of the Convention provision found. 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 applicant EUR 100 under this head.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 48.\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\u00a0Declares the application admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is 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:<\/p>\n (i)\u00a0\u00a0EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 100 (one hundred euros), plus any tax that may be chargeable to the applicant, 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 4.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 25 September 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 convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.<\/p>\n
\nFarisVehabovi\u0107,
\nP\u00e9terPaczolay, 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