FOURTH SECTION

DECISION

Application no. 40841/13 Tahir MUHOVIĆ against Bosnia and Herzegovina and 12 other applications (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 15 September 2020 as a Chamber composed of:

Yonko Grozev , President, Faris Vehabović , Branko Lubarda , Carlo Ranzoni, Stéphanie Mourou-Vikström , Georges Ravarani , Péter Paczolay , judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above applications lodged on the dates indicated in the appended table ,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix. The applicants are nationals of Bosnia and Herzegovina. The applicant in application no. 40841/13 (Mr Muhović ) is also a Montenegrin national. The applicants live in Bosnia and Herzegovina.

2 . The Bosnian-Herzegovinian Government (“the Government”) were represented by their Acting Agents, Ms B. Skalonji ć and Ms V. Bjelica-Prutina .

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicants were at the relevant time, and most of them still are, public servants on the payroll of the Zenica-Doboj Canton [1] . Between 2006 and 2013 they obtained domestic judgments ordering the Zenica-Doboj Canton to pay them various amounts in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. Writs of execution were then issued between 2008 and 2015 (sixteen writs in 2008; one writ in 2010; two writs in 2011; three writs in 2013; three writs in 2014; and four writs in 2015).

5 . Between 2011 and 2018 the applicants in applications nos. 40841/13, 54287/15 and 78154/17 obtained Constitutional Court decisions finding a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention and ordering the Zenica-Doboj Canton to take the necessary measures with a view to securing the enforcement of all domestic judgments against it within a reasonable time (see the Constitutional Court ’ s leading decision concerning the matter, quoted in paragraph 11 below). Two of the applicants in application no. 54287/15 (Mr Mirko Malbašić and Mr Borislav Grlić ) were also awarded 300 convertible marks (BAM) [2] in respect of non-pecuniary damage (see paragraph 12 below).

6 . At the date of the latest information available to the Court (9 July 2020), none of the judgments indicated in paragraph 4 above had been enforced.

8 . The Zenica-Doboj Canton tried to prevent the accumulation of debt by withdrawing from the agreement in 2001, but without success: a unilateral withdrawal from a collective agreement was not permitted. It then renegotiated the terms of employment for its public servants, lowering their salaries, meal allowances and bonuses. However, under the “favourability principle”, which constitutes a key principle of domestic labour law, if a right arising from an employment relationship is regulated differently by different legal instruments, the most favourable right for the employee applies.

9 . For the above reasons, the Zenica-Doboj Canton was unable to comply with the collective agreement until all stakeholders, including the Trade Union of Public Servants, agreed to revise it in 2013 and 2016.

10 . Section 138 of the Enforcement Procedure Act 2003 provides for a limitation on the enforcement of final judgments against the cantons: they may only be enforced in accordance with the amount of funds designated for that purpose in the cantonal budget, which cannot be lower than 0.3% of the total budget. Enforcements are to be carried out in chronological order according to the date on which the bank in which the relevant canton has an account has been served with a writ of execution.

11 . In decision no. AP 2110/08 of 12 October 2011 the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of final judgments against the Zenica-Doboj Canton. It ordered the cantonal government to take a number of general measures to secure the enforcement of all such 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 a lack of funds in 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 property under Article 1 of Protocol No. 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 ’ ...

46. The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects of the global economic crisis on Bosnia and Herzegovina ... The court notes that the federal and cantonal governments have taken certain steps with a view to enforcing final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that final judgments against the Federation and the cantons shall be enforced in accordance with the amount of budgetary funds designated for that purpose ... and that creditors shall enforce their claims in the order in which they acquired the enforcement titles ... In 2010 and 2011 the amount of funds allocated for that purpose in the budget of the Zenica-Doboj Canton was 100,000 convertible marks.

...

48. The court finds that the crux of the problem in the present case is that the Zenica-Doboj Canton has not identified 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 the canton. Furthermore, there should be a centralised and transparent database of all the claims listed in chronological order according to the date on which 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 measures 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 fulfilment of its obligations arising from Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.

...

50. The court considers that the enactment 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 on 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 be 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 [of the Convention] and Article 1 of Protocol No. 1 to the Convention.

...

54 . ... The current situation gives no guarantees to the appellants that their claims against the Zenica-Doboj Canton will be enforced within a reasonable time.”

12 . The Constitutional Court reached the same conclusion in numerous subsequent decisions. In some of them it awarded BAM 300 per appellant in respect of non-pecuniary damage.

13 . On 16 January 2013 the Constitutional Court adopted a procedural decision to the effect that its decision of 12 October 2011 (see paragraph 11 above) had not yet been enforced. It found that although the Zenica-Doboj Canton had implemented most of the general measures indicated in the decision, it had failed to set a reasonable time frame for the enforcement of all domestic judgments against it.

14 . On 12 March 2019 the Constitutional Court adopted a pilot decision on the matter. It found that, despite the many decisions rendered by it and the European Court of Human Rights, the Zenica-Doboj Canton had not yet set an enforcement time frame and had therefore continued to act in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The court reiterated that the cantonal government had to take the necessary steps to secure the enforcement of all judgments within a reasonable time. As regards any non-pecuniary damage caused by the prolonged non-enforcement of judgments, it held that default interest, which was to be paid for each day of non-enforcement, would cover it at least to some extent. Also taking into consideration the general measures indicated in the decision, the court held that the finding of a violation constituted sufficient just satisfaction in respect of moral damage.

16 . The budget of the Zenica-Doboj Canton was BAM 356,040,000 in 2019. More than half of that amount went to salaries and other work-related benefits of the numerous public servants on its payroll, including some of the applicants in the present case. Around 12% was spent on welfare benefits (BAM 14,000,000 on maternity leave and child support; BAM 8,500,000 on war veterans and their families; BAM 3,000,000 on civilian victims of war; BAM 2,500,000 on student accommodation and grants, and so forth). About 11% was spent on operational expenses of the cantonal administration (such as utility bills and maintenance expenses). Approximately 6% went to the repayment of loans; around 4% to public subsidies for agriculture and statutory and private companies; almost 1% to the execution of the Court ’ s judgments; and 0.45% to the enforcement of domestic judgments in favour of those who had not obtained a judgment from the Court.

COMPLAINTS

18 . The applicants complained about the non-enforcement of judgments against the Zenica-Doboj Canton. They relied on Articles 6 § 1 and 13 of the Convention, as well as on Article 1 of Protocol No. 1 to the Convention.

THE LAW

19 . The applicants complained about the non-enforcement of the judgments given in their favour. The relevant parts of the provisions relied on by the applicants provide as follows:

Article 6 § 1 of the Convention

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1 to the Convention

“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.”

20 . 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).

21 . The Government informed the Court that the Zenica-Doboj Canton had introduced on 31 October 2019 an action plan in order to implement the general measures indicated in Kunić and Others v. Bosnia and Herzegovina (nos. 68955/12 and 15 others, § 34, 14 November 2017). A list of 3,256 non-enforced domestic judgments was attached. The plan stated that the total debt was almost BAM 300,000,000: approximately BAM 150,000,000 in respect of the principal debt; BAM 6,500,000 in respect of legal costs and BAM 138,000,000 in respect of default interest. It also stated that the judgments would be enforced, in chronological order, by 2041: for example, if a writ of execution had been issued in 2008, the judgment would be enforced in 2020 or 2021; if a writ of execution had been issued in 2009, the judgment would be enforced in 2022, and so on. Most of the judgments under consideration in the present case would thus be enforced over the next couple of years. The Zenica-Doboj Canton had undertaken to allocate for that purpose more than BAM 13,000,000 per year, representing almost 4% of its annual budget in 2019 (see paragraph 16 above).

22 . The Government compared the present case with those concerning the issue of non-enforcement of domestic judgments ordering the Republika Srpska to pay war damages (see Čolić and Others v. Bosnia and Herzegovina , nos. 1218/07 and 14 others, 10 November 2009; Đurić and Others v. Bosnia and Herzegovina , nos. 79867/12 and 5 others, 20 January 2015; and Knežević v. Bosnia and Herzegovina ( dec. ), no. 15663/12, 14 March 2017). Notably, they emphasised that while the size of the debt of the Zenica-Doboj Canton arising from domestic judgments such as those under consideration in the present case was comparable to that of the Republika Srpska ’ s debt arising from domestic judgments awarding war damages (as regards the former, see paragraph 21 above; as regards the latter, see Đurić and Others , cited above, § 16), the annual budget of the Zenica-Doboj Canton was at the same time about eight times smaller than the annual budget of the Republika Srpska .

23 . The Government submitted that the matter had thus been resolved. They also raised some inadmissibility objections. Notably, they maintained that some of the applications were inadmissible on non-exhaustion grounds since the applicants had failed to use the constitutional appeal. They further argued that some applicants had failed to act with reasonable expedition for the purposes of the six-month rule.

24 . The applicants disagreed with the Government. In particular, they submitted that the enforcement time frame set by the Zenica-Doboj Canton was unreasonable. Some of them also raised doubts as to the ability of the Zenica-Doboj Canton to comply with it. Lastly, one applicant criticised the Court for awarding the applicants significant sums in respect of non-pecuniary damage, since it had led to even more delays in the execution of domestic judgments in favour of those who had not obtained a judgment from the Court.

25 . The Court reiterates that whilst it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt (see Burdov v. Russia , no. 59498/00, § 35, ECHR 2002 ‑ III; Teteriny v. Russia , no. 11931/03, § 41, 30 June 2005; and Jeličić v. Bosnia and Herzegovina , no. 41183/02, §§ 39 and 42, ECHR 2006 ‑ XII ), the system of staggering the enforcement of final domestic judgments may be accepted in exceptional circumstances (see Đurić and Others , cited above, § 30 ).

26 . In 2017 the Court adopted a leading judgment concerning the non-enforcement of domestic judgments against the Zenica-Doboj Canton (see Kunić and Others , cited above), finding a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

27 . The relevant part of that judgment (§§ 28-31) reads as follows:

“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 Protocol 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.

31. By failing for a considerable period of time to take the necessary measures to comply with the final judgments in the instant case, the authorities deprived the provisions of Article 6 § 1 of all useful effect and also prevented the applicants from receiving the money to which they were entitled. This failure amounted furthermore to a disproportionate interference with their peaceful enjoyment of possessions (see, among others, Khachatryan v. Armenia , no. 31761/04, § 69, 1 December 2009, and Voronkov v. Russia , no. 39678/03, § 57, 30 July 2015). Therefore, there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto on account of the non-enforcement of final and enforceable domestic judgments in the applicants ’ favour.”

28 . Given the number of similar cases, the Court invited the respondent State, under Article 46 of the Convention (ibid., § 34), to solve the problem that had led to the finding of a breach by securing the implementation of the general measures indicated by the Constitutional Court in the decision of 12 October 2011 (see paragraph 11 above). Since most of the general measures indicated in that decision had in the meantime been implemented (see Kunić and Others , § 29, quoted in paragraph 27 above; see also paragraph 13 above), only one general measure still remained to be implemented – that is, the setting of a reasonable time frame for the enforcement of all domestic judgments against the Zenica-Doboj Canton.

29 . In this connection, the Court observes that the Zenica-Doboj Canton has recently set an enforcement time frame (see paragraph 21 above). It has undertaken to enforce all (more than 3,000) judgments, in chronological order, by 2041. As regards the twenty-nine judgments under consideration in the present case, the plan states that all of them will be enforced by 2035 (sixteen in 2021; one in 2023; one in 2026; one in 2027; six in 2032; four in 2035).

30 . The Court has already held in a comparable case (see Knežević , decision cited above, § 15) that an enforcement time frame of thirteen years was acceptable and amounted to an implementation of the general measures it had indicated. That case, like the present one, also concerned the issue of non-enforcement of numerous similar judgments rendered in the post-war years in Bosnia and Herzegovina. There is no reason to depart from that jurisprudence.

31 . It is true that the enforcement time frame for four out of twenty-nine judgments under consideration in the present case is slightly longer than thirteen years (they will be enforced in 2035). However, the Court considers that this is justified for the following reasons.

32 . First, while the size of the debt of the Zenica-Doboj Canton arising from domestic judgments such as those under consideration in the present case was comparable to that of the Republika Srpska ’ s debt arising from domestic judgments awarding war damages, the annual budget of the Zenica-Doboj Canton was at the same time about eight times smaller than the Republika Srpska ’ s annual budget (see the Government ’ s allegations, summarised in paragraph 22 above, and not contested by the applicants). The size of the judgment debt of the Zenica-Doboj Canton was thus almost 85% of its annual budget in 2019 (see paragraphs 16 and 21 above).

35 . While there is no doubt that the applicants have suffered some non-pecuniary damage because of the past delays, the Court notes that they are entitled to substantial default interest. In view of the fact that, in Bosnia and Herzegovina, the statutory rate of default interest is significantly higher than the rate of inflation (see paragraph 17 above), the Court agrees with the Constitutional Court that this will alleviate the applicants ’ distress at least to some extent (see the finding of the Constitutional Court in this connection in its pilot decision of 12 March 2019, quoted in paragraph 14 above). Furthermore, the Court has held in cases concerning structural problems at domestic level that it was not necessary to order that adequate redress be awarded to all persons affected (see, in particular, Suljagić v. Bosnia and Herzegovina , no. 27912/02, § 64, 3 November 2009, and Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 149, ECHR 2014). Indeed, the Court ’ s role, after the State has implemented the general measures in conformity with the Convention, cannot be converted into providing individualised financial relief in repetitive cases arising from the same systemic situation (see Zadrić v. Bosnia and Herzegovina ( dec. ), no. 18804/04, 16 November 2010).

36 . In view of the above, the Court finds that its further examination of the present applications is no longer justified. Moreover, in accordance with Article 37 § 1 in fine , it finds no particular circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, the applications should be struck out of the Court ’ s list of cases.

38 . In view of the above conclusion, it is not necessary for the Court to examine the inadmissibility objections raised by the Government (see paragraph 23 above).

For these reasons, the Court, unanimously,

Decides to join the applications;

Decides to strike the applications out of its list of cases.

Done in English and notified in writing on 8 October 2020 .

Ilse Freiwirth Yonko Grozev Deputy Registrar President

Appendix

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence

Represented by

1

40841/13

Muhović v. Bosnia and Herzegovina

07/05/2013

Tahir MUHOVIĆ

1949Zenica

Nermina PIVIĆ

2

54287/15

Marković and Others v. Bosnia and Herzegovina

09/10/2015

Zoran MARKOVIĆ

1972Žepče

Mustafa AHMIĆ

1955Žepče

Marinko MANDURA

1970Žepče

Mato GRLIĆ

1971Zavidovići

Nedžad RUVIĆ

1976Maglaj

Mirko MALBAŠIĆ

1968Zavidovići

Senad KARSO

1969Žepče

Drago MARKANOVIĆ

1973Žepče

Borislav GRLIĆ

1974Zavidovići

Drago MARKOVIĆ

1970Žepče

Miloš LATINOVIĆ

1959Žepče

Munib PRELDŽIĆ

1971Žepče

Nevenko ĐUZEL

1977Žepče

Ekrem HADŽIĆ

1972Žepče

Frano FILIPOVIĆ

1973Žepče

Edima KARAHODŽIĆ

1975Žepče

Niza MEHIĆ

1952Žepče

Nijaz MUSLIĆ

1966Žepče

Branislav STANIĆ

1975Doboj

Josip LUČIĆ

1954Zavidovići

Željko VIDOVIĆ

1970Žepče

Amel SOFTIĆ

1970Žepče

Franjo DUNĐER

1972Žepče

Jozo DRAGIČEVIĆ

1966Žepče

Kasim ALIĆ

1966Žepče

Ivica ĐUZEL

1967Žepče

Ankica MARKOVIĆ

1965Žepče

Marija TODOROVIĆ

1982Žepče

Šuhra SINANOVIĆ

1955Žepče

Ivica PEJINOVIĆ

1969Žepče

Edin HRNJIĆ

3

78154/17

Lekić v. Bosnia and Herzegovina

06/11/2017

Drinka LEKIĆ

1958Te Å¡anj

4

79348/17

Hrgota v. Bosnia and Herzegovina

13/11/2017

Zlatko HRGOTA

1970Kakanj

Azra ALIĆ-BEDAK

5

79363/17

Jozić v. Bosnia and Herzegovina

13/11/2017

Ljubica JOZIĆ

1968Kakanj

Azra ALIĆ-BEDAK

6

79366/17

Nikolić v. Bosnia and Herzegovina

13/11/2017

Vanja NIKOLIĆ

1977Kakanj

Azra ALIĆ-BEDAK

7

79393/17

Delić v. Bosnia and Herzegovina

13/11/2017

Ekrem DELIĆ

1958Kakanj

Azra ALIĆ-BEDAK

8

79400/17

Komšo v. Bosnia and Herzegovina

13/11/2017

Ivo KOMÅ O

1975Kakanj

Azra ALIĆ-BEDAK

9

79685/17

Begić v. Bosnia and Herzegovina

13/11/2017

Nedžad BEGIĆ

1970Kakanj

Azra ALIĆ-BEDAK

10

79687/17

Bloudek v. Bosnia and Herzegovina

13/11/2017

Vedran BLOUDEK

1976Kakanj

Azra ALIĆ-BEDAK

11

79691/17

Begić v. Bosnia and Herzegovina

13/11/2017

Adem BEGIĆ

1966Kakanj

Azra ALIĆ-BEDAK

12

79694/17

Mehić v. Bosnia and Herzegovina

13/11/2017

Ibrahim MEHIĆ

1965Kakanj

Azra ALIĆ-BEDAK

13

79698/17

Å ain v. Bosnia and Herzegovina

13/11/2017

Vjekoslav Å AIN

1968Kakanj

Azra ALIĆ-BEDAK

[1] Bosnia and Herzegovina consists of two entities (the Federation of Bosnia and Herzegovina and the Republika Srpska ) and a district (the Brčko District) T he Federation of Bosnia and Herzegovina consists of ten cantons, including the Zenica-Doboj Canton .

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

[3] Kolektivni ugovor za slu ž benike organa uprave i sudske vlasti ; Official Gazette of the Federation of Bosnia and Herzegovina nos 23/00 , 50 / 00 , 97 / 13 , 89 / 16 and 23 / 17 .

[4] Zakon o izvršnom postupku ; Official Gazette of the Federation of Bosnia and Herzegovina nos 32/03, 52/03, 33/06, 39/06, 39/09, 35/12 and 46/16.

[5] Official Gazette of the Zenica-Doboj Canton no 3/19.

[6] Zakon o visini stope zatezne kamate ; Official Gazette of the Federation of Bosnia and Herzegovina no 18 / 2 0 .

[7] See the analytical report prepared by the European Commission , SWD( 2019) 222 final, 29 May 2019 , p 73.