FOURTH SECTION

CASE OF KUNIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

( Applications nos. 68955/12 and 15 others – see appended list )

JUDGMENT

STRASBOURG

14 November 2017

FINAL

14/02/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kunić and Others v. Bosnia and Herzegovina ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Ganna Yudkivska, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Faris Vehabović, Iulia Motoc, Carlo Ranzoni, Georges Ravarani, judges, and Andrea Tamietti , Deputy Section Registrar ,

Having deliberated in private on 17 October 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in 16 applications (nos. 68955/12 , 7270/15, 7286/15, 7316/15, 7321/15, 7325/15, 7336/15, 7408/15, 7418/15, 7429/15, 19494/15, 19501/15, 19547/15, 19548/15, 19550/15 and 19617/15) 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”) by 16 citizens of Bosnia and Herzeg ovina between 22 October 2012 and 13 April 2015. A list of the applicants with their personal details is set out in the appendix.

2 . The first applicant, Mr Kunić, was represented by Mr A. Petrušić, a lawyer practising in Zenica. The remaining applicants were represented by Mr M. Alić, a lawyer practising in Zenica. The Government of Bosnia and Herzegovina (“the Government”) we re represent ed by their Agent at the time , Ms M. Mijić an d by their Deputy Agent at the time , Ms Z. Ibrahimović.

3 . The applicants complained of the non-enforcement of final domestic judgments in their favour.

4 . On 31 August 2015 the applications were communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . By a judgment of the Zenica Cantonal Court of 5 February 2007, three judgments of the Tešanj Municipal Court of 30 July 2008, 31 March 2008 and 15 May 2009 and a judgment of the Zenica Municipal Court of 26 April 2007, which became final on 5 Fe bruary 2007, 18 August 2008, 23 March 2009, 25 June 2010 and 27 March 2008, respectively, the Zenica-Doboj Canton ( Zeničko-dobojski kanton ; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants d ifferent sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs.

6 . The writs of execution issued o n 2 March 2007, 5 April 2010, 2 March 2010, 14 December 2010 and 24 June 2008, respectively, by the Zenica Municipal Court and the Tešanj Municipal Court, were transferred to the competent bank and were listed among the charges on the debtor ’ s account.

7 . On several occasions thereafter the bank informe d the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent.

8 . On 12 July 2008 the first applicant, Mr Suljo Kunić, complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).

9 . On 12 October 2011 ( decision no. AP 2110/08) the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in Mr Suljo Kunić ’ s and ten other cases on account of the prolonged non-enforcement of the final judgments in the appellants ’ favour. It ordered the government of the Zenica-Doboj Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time.

The relevant part of the decision reads as follows:

“39. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor ’ s bank account.

...

45. The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to proper ty under Article 1 of Protocol N o. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments ... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH , the European Court of Human Rights reiterated that ‘ it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. 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 § 1 ’ ...

...

48. The court finds that the crux of the problem in the present case is that the Zenica-Doboj Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the Zenica-Doboj Canton would ensure the respect of its obligations from Article 6 § 1 and Article 1 of Protocol N o. 1 to the Convention.

...

50. The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ...

...

52. In order to comply with its positive obligation, the government of the Zenica-Doboj Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol N o. 1 to the Convention.

...

54. ... The current situation does not give any guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enfo rced within a reasonable time.”

10 . On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that i ts decision of 12 October 2011 and eight other decisions on the same matter in cases concerning various individual appellants ( see paragraph 15 below ) had not been enforced.

11 . The final judgments in the applicants ’ favour have not yet been enforced.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . Constitution of the Zenica-Doboj Canton

12 . Article 19 of the Constitution of the Zenica-Doboj Canton ( Ustav Zeničko-dobojskog kantona , Official Gazette of the Feder ation of Bosnia and Herzegovina, “OG FBH”, no. 7/96) provides that in accordance with the Constitution of the Federation of Bosnia and Herzegovina, the Federation and the Zenica-Doboj Canton are responsible for ensuring the implementation of human rights within their jurisdictions. The cantonal government is responsible for the enforcement of final courts ’ judgments (Article 50 § b).

B . Settlement Plan of the Zenica-Doboj Canton

13 . On 14 November 2013 the government of the Zenica-Doboj Canton adopted the Settlement Plan ( Odluka o mjerilima i kriterijima za zaključivanje vansudskih nagodbi na teret proračuna Zeničko-dobojskog kantona , Official Gazette of the Zenica-Doboj Canton no. 13/13 ), setting out the procedure for settling the enforcement claims against the canton. Settlement proposals will be accepted under the condition that creditors forsake part of their claims (principal debt, and/or default interest and/or legal costs) and withdrew their enforcement claims submitted to the competent courts. Priority is given to those creditors who renounce the largest parts of their claims.

C . Enforcement Procedure Act 2003 of the Federation of Bosnia and Herzegovina

14 . T he Enforcement Procedure Act 2003 ( Zakon o izvršnom postupku , OG FBH nos. 32/03, 52/03, 33/06, 39/06, 39/09 , 35/12 , 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 enfor cement 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 )).

D . The case-law of the Constitutional Court

15 . After decision AP 2110/08 of 12 October 2011 (see paragraph 9 above), the Constitutional Court adopted eight more decisions on the same matter in cases submitted by various individuals who are not the applicants in th e present case : AP 584/09 of 9 November 2 011, AP 545/09 of 23 February 2012, AP 1316/09 of 14 March 2012, AP 2972/09 of 13 June 2012, AP 2535/09 of 13 June 2012, AP 801/09 of 18 April 2012, AP 633/09 of 18 April 2012 and AP 1209/09 of 18 April 2 012. None of these decisions have been enforced.

THE LAW

I. JOINDER OF THE APPLICATIONS

16 . Given their common factual and legal background, the Court decides to join these six teen applications pursuant to Rule 42 § 1 of the Rules of Court.

I I . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO . 1 TO THE CONVENTION

17 . The applicants complained of the non-enforcement of the final domestic judgments indicated in paragraph 5 above. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

Article 6 § 1 , in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 1 of Protocol No. 1 to the Convention reads as follows:

“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.”

A. Admissibility

1. The Government ’ s objection as to the admissibility

18 . The Government argued that all the applications, except for that of Mr Suljo Kunić , should be rejected on non-exhaustion ground s because of the applicants ’ failure to complain of the non-enforcement to the Constitutional Court.

19 . The applicants submi tted that a constitutional appeal could not be considered to be an effective remedy for their complaints considering that none of the Constitutional Court ’ s decisions on that subject ha d been enforced.

2. The Court ’ s assessment

20 . T he Court reiterates that the application of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant (see A kdivar and Other v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996-IV ; Selmouni v. France [GC] , no. 25803/94, § 77, ECHR 1999- V; and Salah Sheekh v. the Netherlands , no. 1948/ 04, § 121, 11 January 2007).

21 . Turning to the present case, the Court notes that 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 first applicant ’ s case and ordered the government of the Zenica-Doboj Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time . Subsequently, th e Constitutional Court adopted eight more decisions in cases raising the same issues as the present ones with the same legal reasoning and instructions for the cantonal government. However, o n 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that these decisions had not been enforced (see paragraphs 10 and 15 above). Therefore, it has not been shown that in this particular matter an appeal to the Constitutional Court was capable of providing redress for the applicants ’ complaints and offered a reasonable prospect of success . In these circumstances, the Court considers that the Government ’ s objection on grounds of failure to exhaust domestic remedies cannot be upheld (see, mutatis mutandis , Hadžimejlić and Others v. Bosnia and Herzegovina , nos. 3427/13, 74569/13 and 7157/14 , § 46, 3 November 2015).

3. Conclusion

22 . The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The applicant s ’ submissions

23 . The applicants essentially maintained that the principle of the rule of law, which Bosnia and Herzegovina had undertaken to respect when it ratified the Convention, required that every judgment be enforced without delay.

2. The Government ’ s submissions

24 . The Government submitted that the respondent State and the government of the Zenica-Doboj Canton had never disputed the applicants ’ right to have their final judgments enforced. To that end, the Federation adopted the amendments to the Enforcement Procedure Act 2003 regulating the enforcement of final judgments against the Federation and the cantons , while the cantonal government encouraged its creditors to settle the claims by adopting the Settlement Plan 2013. Following the Constitutional Court ’ s decision of 12 October 2011 , the cantonal government identified the number of unenforced judgment s and the aggregate debt, and established a centralised database of all the claims. In 2011 there had been 6, 536 creditors while the aggregate debt had been 64,631,526. 53 convertible marks (BAM) [1] . In 2014 there had been 2, 215 creditors and the aggregate debt had been BAM 92,797, 380 . 03. In 2015 the aggr egate debt increased to BAM 111,040, 509.

25 . The Government further submitted that due to the size of the Zenica-Doboj Canton ’ s public debt, postponement in the enforcement was justified as otherwise macroeconomic stability and fiscal sustainability would be jeopardised. The cantonal government was willing to enforce all the final judgments against it and all the measures taken to that end were designed to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights. In 2014 the cantonal government provi ded BAM 400, 000 in its budget for that purpose . Moreover, in the same year 38 settlements were concluded.

3. The Court ’ s assessment

27 . In addition, t he Court reiterates that the impossibility of obtaining the execution of a final judgment in an applicant ’ s 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, § 40; Jasiūnienė v. Lithuania , no. 41510/98, § 45, 6 March 2003; and Voytenko v. Ukraine , no. 18966/02, § 53, 29 June 2004).

28 . In its decision of 12 October 2011 the Constitutional Court held that a prolonged non-enforcement of final judgments had violated the appellants ’ rights (including the first applicant in this case) in breach of Article 6 § 1 of the Convention and Article 1 of Pr otocol No. 1 to the Convention . The government of the Zenica-Doboj Canton was ordered to take the necessary steps in order to secure the enforcement of final judgments from the cantonal budget within a reasonable time. The Constitutional Court held , in particular, that the cantonal government should identify the exact number of unenforced judgments and the amount of aggregate debt, and set up a centralised, chronological and transparent database which should include the enforcement time-frame and help avoid abuses of the enforcement procedure. On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 and eight other decisions concerning the same matter had not been enforced.

29 . The Court notes that the cantonal government has, in the meantime, implemented some of the general measures ordered by the Constitutional Court. However, the enforcement time-frame has not yet been provided. Moreover, fro m the information submitted by the Government it would appear that the cantonal government encourages settlements which requ ire the creditors to renounce part of their claim s (see paragraph 13 above).

30 . Theref ore, the applicants ’ situation remains u nchanged. They are confronted by judgments in their favour which have not been enforced and are still in a situation of uncertainty as regards whether and when those judgments will be enforced. The Court notes that the domestic judgments under considerati on in the present case became final between more than seven and almost eleven years ago. Such delays in enforcement were in the past considered to be excessive ( see Jeličić , cited above, § 40; Čolić and Others v. Bosnia and Herzegovina , nos. 1218/07 et al ., 10 November 2009, § 15; and Runić and Others v. Bosnia and Herzegovina , nos. 28735/06 et al ., 15 November 2011, § 21). The Court does not see any reason to depart from that jurisprudence in the present case.

III. APPLICATION OF ARTICLE 46 OF THE CONVENTION

32 . Article 4 6 of the Convention provides:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

33 . The violation which the Court has found in the present case affects many people (see paragraph 24 above). There are already more than four hundred similar applications pending before the Court. Therefore, before examining the applicants ’ individual claims for just satisfaction under Article 41 of the Convention, the Court wishes to consider what consequences may be drawn for the respondent State from Article 46 of the Convention. It reiterates that by virtue of Article 46 the High Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers of the Council of Europe. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures (see Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 ‑ II, and Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts)).

35 . As regards the other similar applications lodged with the Court before the delivery of the present judgment, subject to their notification to the Government under Rule 54 § 2 (b) of the Rules of the Court, the Court considers that the respondent State must grant adequate and sufficient redress to all applicants. Such redress may be achieved through ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements and, notably, in accordance with the criteria set out in paragraphs 3 7 and 40 below (see Burdov v. Russia (no. 2) , no . 33509/04, § 145, ECHR 2009-I; and Čolić and Others , cited above, § 18 ).

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

36 . 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.”

A. Damage

38 . In respect of non-pecuniary damage, Mr Kunić claimed 4,000 euros (EUR) and the other applicants claimed EUR 1,500 per application.

39 . The Government considered the amount s claimed to be excessive.

B. Costs and expenses

41 . Mr Kunić claimed the costs and expenses incurred in the domestic civil proceedings (as recognised in the final judgment rendered in his favour) and EUR 3,446 for the costs and expenses incurred before the Constitutional Court and before this Court. The remaining applicants claimed EUR 500 per application for costs and expenses incurred before the Court.

42 . The Government considered the amounts claimed to be excessive.

43 . According to the Court ’ s 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. 31107/96, § 54, 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 Rule 60 of the Rules of Court).

44 . Regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award Mr Kunić EUR 500 for the costs and expenses incurred domestically before the Constitutional Court and before this Court. As regards the costs and expenses incurred in domestic civil proceedings, the Court notes that they are an i ntegral part of that applicant ’ s pecuniary claim which has already been dealt with above .

45 . The Court notes that the remaining applicants have not submitted any evidence (bills or invoices) about the costs and expenses incurred. Therefore, their claim is rejected for lack of substantiation.

C. Default interest

46 . 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 there has been a violation of Article 6 § 1 of the Convention;

4 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5 . Holds

(a) that the respondent State is to secure enforcement of the domestic judgments under consideration in the present case within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, and, in addition, to pay the applicants, within the same period, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,0 00 ( one thousand euros) , plus any tax that may be chargeable , to each of the applicants, in respect of non- pecuniary damage;

(ii) EUR 500 ( five hundred euros) to Mr Kunić, plus any tax that may be chargeable to him, in respect of costs and expenses;

(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;

6 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 14 November 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Ganna Yudkivska Deputy Registrar President

APPENDIX

Application no

Lodged on

Applicant ’ s name and

date of birth

68955/12

22/10/2012

Suljo KUNIĆ

24/04/1951

7270/15

30/01/2015

Sead KURTIĆ

28/11/1959

7286/15

30/01/2015

Halima KARAHODŽIĆ

23/01/1964

7316/15

30/01/2015

Jaska KAMIŠEVIĆ

23/09/1967

7321/15

30/01/2015

Razim ROŠIĆ

17/08/1961

7325/15

30/01/2015

Esed AHMIĆ

06/04/1966

7336/15

30/01/2015

Behija SINANOVIĆ

23/05/1960

7408/15

30/01/2015

Mirsada ČELIKOVIĆ

19/05/1974

7418/15

30/01/2015

Fatima CEROVAC

27/03/1949

7429/15

30/01/2015

Husein JUPIĆ

22/05/1949

19494/15

13/04/2015

Šaćir MAHIĆ

03/03/1943

19501/15

13/04/2015

Amira HASANBAŠIĆ

13/10/1972

19547/15

13/04/2015

Smail OMEROVIĆ

09/04/1951

19548/15

13/04/2015

Nermina TORIĆ

27/08/1976

19550/15

13/04/2015

Mustafa HALILOVIĆ

05/09/1954

19617/15

02/04/2015

Muzafer HUKIĆ

07/08/1962

[1] The convertible mark (BAM) uses the same fixed exchange rate to the euro (EUR) that the German mark (DEM) has (EUR 1 = BAM 1.95583).