FOURTH SECTION

DECISION

Application no. 38868/17 Zlatko FAJKOVIĆ against Bosnia and Herzegovina and 8 other applications (see list appended)

The European Court of Human Rights (Fourth Section), sitting on 11 February 2020 as a Committee composed of:

Iulia Antoanella Motoc, President, Faris Vehabović, Carlo Ranzoni, judges, and Ilse Freiwirth , Deputy Section Registrar ,

Having regard to the above applications lodged on the various 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. Usluge d.o.o., the applicant in application no. 44645/17, was represented by Mr S. Krnjić, a lawyer practising in Tuzla. The remaining applicants were represented by Mr J. Čilić, a lawyer practising in Ljubuški.

2 . The Bosnian-Herzegovinian Government (“the Government”) were represented by their Agent, Ms B. Skalonjić.

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

4 . The applicants pursued different sets of civil proceedings before different courts in Bosnia and Herzegovina. In those proceedings, they appointed the same lawyers as before this Court. Since their lawyers ’ offices were outside the court seats, the applicants had to pay them, pursuant to the tariff fixed by the local bar associations, substantial amounts for their travel expenses. In all of the cases, despite the fact that the applicants won, the civil courts dismissed as unnecessary their claims for reimbursement by the losing parties of those travel expenses. They relied on various factors, such as what was at stake for the applicant (the costs claimed were sometimes higher than the principal debt), whether the claims had been substantiated, and whether the lawyer would have travelled to the court seat even if a court hearing had not been held in the case at issue (the lawyers sometimes had to attend several hearings held in different cases on the same day, but charged full travel expenses in each of those cases).

5 . The Constitutional Court upheld the decisions of the civil courts on the dates indicated in the appendix.

6 . The Civil Procedure Act 2004 of Bosnia and Herzegovina [1] , the Civil Procedure Act 2003 of the Federation of Bosnia and Herzegovina [2] and the Civil Procedure Act 2003 of the Republika Srpska [3] provide as follows (see sections 324, 387 and 387 thereof, respectively):

“The court shall order the losing party to reimburse the costs of the winning party only to the extent that they were necessary. When making a costs order, the court shall carefully examine all the relevant circumstances.

The costs order shall be based on the tariff fixed by the local bar association, if there is such a tariff.”

7 . On 30 January 2014 the Panel for the Harmonisation of the Case-Law in Civil Matters, comprised of representatives of the four highest courts in the country dealing with civil matters, adopted a legal opinion according to which the losing party in civil proceedings should not, in principle, bear any extra legal costs only because the winning party had chosen a lawyer whose office was outside the court seat, unless the court, exceptionally, considers such costs to be “necessary” within the meaning of the legal provisions cited in paragraph 6 above. According to the Panel, such costs might be considered “necessary” when, for example, there are no lawyers practising in the court seat or none of them is able and willing to represent a certain client.

8 . Pursuant to the tariff fixed by the local bar associations [4] , the lawyers may charge their clients for, inter alia , travel expenses.

COMPLAINTS

9 . The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the costs orders rendered in the civil proceedings mentioned in paragraph 4 above had been arbitrary.

THE LAW

10 . 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).

11 . The applicants complained that the refusal to order the losing parties to reimburse the travel expenses charged by their lawyers had amounted to a violation of Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

12 . The Government argued that the civil courts had acted in accordance with domestic law and had provided relevant and sufficient reasons for their decisions. The Constitutional Court had held that the decisions at issue had not been arbitrary. At the Court ’ s request, the Government had provided an interpretation by the local bar associations of their tariff according to which the civil courts had to order the losing party to repay the entire costs of the winning party based on the tariff. The Government disagreed with that interpretation and maintained that the civil courts were entitled to order the losing party to reimburse only those costs of the winning party which they considered to be necessary in the particular circumstances of the case at issue. In this regard, they relied on the domestic law and practice set out in paragraphs 6 and 7 above. While admitting that in some cases the losing party had been ordered to also repay the travel expenses of the winning party ’ s lawyer whose office was outside the court seat, they claimed that this had been done because those expenses had been considered to be necessary in the circumstances of those cases.

13 . The applicants maintained that the civil courts had no discretion in this regard and that they had to order the losing party to repay the entire costs of the winning party based on the tariff fixed by the local bar associations. They submitted two decisions of the Constitutional Court in which violations of Article 6 of the European Convention on Human Rights had been found in similar cases (AP-3310/14 of 27 October 2015 and AP-4616/15 of 27 February 2018). In addition, the applicants submitted three judgments rendered in civil cases in which, unlike in the present cases, the losing party had indeed been ordered to repay the travel expenses of the winning party ’ s lawyer whose office was outside the court seat (18 0 P 017598 14 Rev of 5 January 2016, and 65 0 Rs 237688 14 Rsž and 65 0 Rs 237716 14 Rsž both of 18 October 2018).

14 . The Court reiterates that, save in the event of evident arbitrariness, it is not its role to question the interpretation of domestic law by the national courts. Similarly, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (see, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 50, 20 October 2011). The Court further reiterates that a domestic judicial decision cannot be qualified as arbitrary to the point of prejudicing the fairness of proceedings unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (see Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 85, 11 July 2017).

15 . In this connection, it should be borne in mind – since this is a very common source of misunderstandings on the part of applicants – that the “fairness” required by Article 6 is not “substantive” fairness (a concept which can only be applied by the trial judge), but “procedural” fairness. This translates in practical terms into adversarial proceedings in which submissions are heard from the parties and they are placed on an equal footing before the court. If it were otherwise, the Court would be acting as a court of third or fourth instance, which would be to disregard the limits imposed on its action (see Prevljak and Others v. Bosnia and Herzegovina (dec.), no. 127/10, 10 April 2012).

16 . In the present cases, the civil courts considered that they were entitled to order the losing party to reimburse no more than the necessary costs of the winning party and dismissed as unnecessary the applicants ’ claims for reimbursement of their lawyers ’ travel expenses. Taking into account the relevant domestic law and practice (see paragraphs 6 and 7 above) and the reasons provided by the civil courts (see paragraph 4 above), the Court finds in the particular circumstances of the present case that the costs orders were not arbitrary.

17 . The Court is aware that the Constitutional Court considered the costs orders of national courts in two similar cases to be arbitrary (see paragraph 13 above). One of them concerned civil proceedings before the Municipal Court in Bihać pursued by a judge of the same court. Since lawyers from Bihać regularly represented parties to the proceedings in which he acted as a judge, the appellant appointed a lawyer from another town to represent him. The civil courts held that the appellant could have appointed a lawyer from Bihać and, therefore, dismissed as unnecessary his claim for reimbursement by the losing party of his lawyer ’ s travel expenses. Taking into account the exceptional circumstances of that case, the Constitutional Court considered the decision at issue to be arbitrary. In the other case, in which the appellant also had a lawyer whose office was outside the court seat, the civil courts ordered the losing party to pay the appellant ’ s lawyer ’ s travel expenses in respect of one part of the proceedings, but dismissed as unnecessary, without good reason, his claim for reimbursement of his lawyer ’ s travel expenses in respect of the remainder of the proceedings. The Constitutional Court considered also that decision to be arbitrary. Unlike in those cases, the Constitutional Court did not find any such exceptional circumstances in the present cases and therefore upheld the impugned costs orders (see paragraph 5 above). The Court sees no reason to disagree with the findings of the Constitutional Court.

18 . The Court has also noted the judgments rendered in three other cases in which civil courts came to a different conclusion than in the present cases (see paragraph 13 above). However, as stated in paragraph 14 above, save in the event of evident arbitrariness, it is in principle not the Court ’ s role to question the interpretation of domestic law by the national courts and to compare different decisions of national courts. Accordingly, in view of the Court ’ s finding in paragraph 16 above that the impugned costs orders were not arbitrary, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

19 . The applicants considered that the non-reimbursement of their lawyers ’ travel expenses also violated Article 1 of Protocol No. 1 to the Convention. This provision 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.”

20 . The Government argued that the applicants ’ claims did not constitute “possessions” within the meaning of Article 1 of Protocol No. 1.

21 . The applicants did not submit any comments in that connection.

22 . The general principles concerning the concept of “possessions” in Article 1 of Protocol No. 1 were recently restated in Radomilja and Others v. Croatia ([GC] , nos. 37685/10 and 22768/12 , § § 142-43, 20 March 2018):

“142. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her ‘ possessions ’ within the meaning of that provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 - IX). ‘ Possessions ’ can be ‘ existing possessions ’ or claims that are sufficiently established to be regarded as ‘ assets ’ (ibid.). Where a proprietary interest is in the nature of a claim, it may be regarded as an ‘ asset ’ only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see Kopecký , cited above, §§ 49 and 52, and Stran Greek Refineries and Stratis Andreadis v. Greece , 9 December 1994, § 59, Series A no. 301 ‑ B).

143. The Court has also referred to claims in respect of which an applicant can argue that he has at least a ‘ legitimate expectation ’ that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia , Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002 ‑ VII, and Kopecký , cited above, § 35). However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Kopecký , §§ 45-53).”

23 . Therefore, the issue to be examined is whether the applicants ’ claims for reimbursement of their lawyers ’ travel expenses had a sufficient basis in national law to be regarded as “assets” and therefore “possessions” protected by Article 1 of Protocol No. 1.

24 . In this regard, the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Zagrebačka banka d.d. v. Croatia , no. 39544/05, § 263, 12 December 2013). Unless the interpretation is arbitrary or manifestly unreasonable, the Court ’ s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I). It is for that reason that the Court has held that, in principle, it cannot be said that an applicant has a sufficiently established claim amounting to an “asset” for the purposes of Article 1 of Protocol No. 1, where there is a dispute as to the correct interpretation and application of domestic law and where the question whether or not he or she complied with the statutory requirements is to be determined in judicial proceedings (see Radomilja and Others , cited above, § 149).

25 . In view of its finding in paragraph 16 above that the impugned costs orders were not arbitrary, the Court concludes that the applicants ’ claims for reimbursement of their lawyers ’ travel expenses did not have a sufficient basis in national law to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. Therefore, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 5 March 2020 .

Ilse Freiwirth Iulia Antoanella Motoc Deputy Registrar President

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Date of Birth / Registration (for companies)

Place of Residence / Headquarters (for companies)

Date of the Constitutional Court ’ s decision

1

38868/17

Fajković v. Bosnia and Herzegovina

15/05/2017

Zlatko FAJKOVIĆ

29/08/1978

Bihać

23/11/2016

2

44645/17

Usluge d.o.o. v. Bosnia and Herzegovina

09/06/2017

Usluge d.o.o.

12/07/1999

Ugljevik

22/12/2016

3

54062/17

Milić v. Bosnia and Herzegovina

19/07/2017

Milosava MILIĆ

10/11/1967

Trebinje

11/01/2017

4

54084/17

Karliko export-import d.o.o. v. Bosnia and Herzegovina

19/07/2017

Karliko export-import d.o.o.

-

Ljubuški

11/01/2017

5

56581/17

Mihaljević v. Bosnia and Herzegovina

26/07/2017

Milan MIHALJEVIĆ

29/11/1968

Ljubuški

07/03/2017

6

73563/17

Milićević v. Bosnia and Herzegovina

30/09/2017

Marijan MILIĆEVIĆ

-

Ljubuški

15/06/2017

7

80059/17

Dedić v. Bosnia and Herzegovina

11/11/2017

Edis DEDIĆ

10/03/1978

Bihać

07/09/2017

8

80702/17

Ćatić v. Bosnia and Herzegovina

11/11/2017

Senad ĆATIĆ

23/08/1972

Bihać

07/09/2017

9

84703/17

Kraljević v. Bosnia and Herzegovina

08/12/2017

Tomislav KRALJEVIĆ

20/03/1977

Å iroki Brijeg

25/10/2017

[1] . Zakon o parničnom postupku , Official Gazette of Bosnia and Herzegovina nos. 36/04, 84/07 , 58/13 and 94/16.

[2] . Zakon o parničnom postupku , Official Gazette of the Federation of Bosnia and Herzegovina nos. 53/03, 73/05, 19/06 and 98/15.

[3] . Zakon o parničnom postupku , Official Gazette of the Republika Srpska nos. 58 /03, 85/03, 74 /05, 63 /0 7, 105/08, 45/09, 49/09 and 61 / 13 .

[4] . Official Gazette of the Federation of Bosnia and Herzegovina nos. 22/04 and 24/04 , and Official Gazette of the Republika Srpska no. 68/05.