ČALUK AND OTHERS v. BOSNIA AND HERZEGOVINA
Doc ref: 3927/15, 4783/15, 4795/15, 4799/15, 4815/15, 4817/15, 4819/15, 4821/15, 4824/15, 4826/15, 4829/15, 4... • ECHR ID: 001-187303
Document date: September 25, 2018
- Inbound citations: 17
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- Cited paragraphs: 3
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- Outbound citations: 5
FOURTH SECTION
DECISION
Application no. 3927/15 Nahida ÄŒALUK against Bosnia and Herzegovina and 63 other applications (see list appended)
The European Court of Human Rights (Fourth Section), sitting on 25 September 2018 as a Committee composed of:
Carlo Ranzoni , President, Faris Vehabović , Péter Paczolay , judges, and Andrea Tamietti , 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 respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The first applicant, Ms Čaluk , was represented by Mr A. Lozo , a lawyer practising in Travnik . The remaining applicants were represented by Ms H. Kapetan , a lawyer practising in Travnik . The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić .
A. The circumstances of the cases
3. The facts of the cases, as submitted by the parties, may be summarised as follows.
1. The facts submitted by the applicants
4. By 67 judgments of the Travnik Municipal Court and the Bugojno Municipal Court, the applicants ’ employers, various public companies, were ordered to pay them different sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. The judgments became final between 19 December 2003 and 27 December 2012.
5. The applicants ’ 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 13 below). Consequently, in accordance with the 2003 Insolvency Act, the Federation of Bosnia and Herzegovina became liable for the debts of the applicants ’ employers (see paragraph 13 below).
6. The Sarajevo Municipal Court issued enforcement orders between 10 October 2011 and 27 February 2013, 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.
7. On several occasions thereafter the bank informed the competent courts that enforcement was not possible because the budgetary funds intended for that purpose had already been spent.
2. The additional information provided by the Government
8. The Government did not dispute the facts submitted by the applicants. However, they provided additional information as follows.
9. Between 2 July 2013 and 27 November 2014 the applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”).
10 . On 17 March 2015 (decision no. AP 2892/13) 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 applicants ’ 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.
11 . Subsequently, between 16 July 2015 and 25 July 2016, and before the Government were given notice of the present applications (7 September 2016), the final judgments in the applicants ’ favour were fully enforced.
B. Relevant domestic law
12. The 2003 Enforcement Procedure Act ( Zakon o izvršnom postupku , Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”), 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 (5)).
13 . Section 5 of the 2003 Insolvency Act ( Zakon o stečajnom postupku , 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.
COMPLAINT
14. The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the failure by the national authorities to enforce the final court decisions given in their favour.
THE LAW
15. 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).
16. The Government submitted that the applicants had failed to inform the Court of the fact that the final judgments in their favour had been fully enforced. They therefore suggested that the Court reject the applications as an abuse of the right of individual application in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
17. The applicants did not dispute the facts as presented by the Government. They argued instead that they had intended to inform the Court about the new developments in their reply to the Government ’ s observations.
18. The Court recalls that according to Rule 47 § 7 of the Rules of Court applicants shall keep the Court informed of all circumstances relevant to the application. A n application may be rejected as abusive under Article 35 § 3 of the Convention if it has been established that (a) it is knowingly based on untrue facts and false declarations (see Drijfhout v . the Netherlands ( dec. ), no. 51721/09, § 29, 22 February 2011), or that (b) significant information and documents have been deliberately withheld, either where they were known from the outset (see Puusep v. Estonia ( dec. ), no. 67648/10, § 32, 7 January 2014) or where new significant developments have occurred during the procedure (see Komatinović v. Serbia ( dec. ), no. 75381/10, 29 January 2013).
Loading citations...19. 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, for example, Gross v. Switzerland [GC] , no. 67810/10 , § 28, ECHR 2014). Lastly, it cannot be the task of the Court, a body which was set up under the Convention to ensure the observance of the engagements undertaken by the High Contracting Parties with respect to the Convention, to deal with a succession of ill-founded and querulous complaints, creating unnecessary work which is incompatible with its real functions (see Petrović v. Serbia ( dec. ), nos. 56551/11 and 10 others, 18 October 2011).
20. Turning to the present case, the Court notes that following the decision of the Constitutional Court (see paragraph 10 above), the final judgments in the applicants ’ favour were fully enforced between 16 July 2015 and 25 July 2016 (see paragraph 11 above). The applicants, however, did not inform the Court about that development. The Court notes that the enforcement occurred before notice of the applications was given to the Government and that no convincing explanation for this omission was provided.
21. Having regard to the fact that the information withheld concerned the very core of the applications, the Court finds that such conduct was contrary to the purpose of the right of individual application, as provided for in Article 34 of the Convention, and significantly impeded the proper functioning of the Court. In addition, lawyers must understand that, having due regard to the Court ’ s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it the introduction of unmeritorious complaints and, both before proceedings have been instituted and thereafter, they must inquire diligently into all the details of the case, meticulously abide by all the relevant rules of procedure and must urge their clients to do the same. Otherwise, the wilful or negligent misuse of the Court ’ s resources may undermine the credibility of lawyers ’ work in the eyes of the Court and even, if it occurs systematically, may result in particular individual lawyers being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see Stevančević v. Bosnia and Herzegovina ( dec .), no. 67618/09, § 29, 10 January 2017 ).
22. In the light of the foregoing, the Court considers that the present applications constitute an abuse of the right of individual application within the meaning of Article 35 § 3 (a) in fine of the Convention. They must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 18 October 2018 .
Andrea Tamietti Carlo Ranzoni Deputy Registrar President
APPENDIX
LIST OF APPLICANTS
No .
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
3927/15
15/12/2014
Nahida ÄŒALUK
07/10/1959
Bugojno
Bosnia and Herzegovina
4783/15
13/01/2015
Enes KRNJIĆ
25/11/1957
Novi Travnik
Bosnia and Herzegovina
4795/15
13/01/2015
Ibrahim SILAJDŽIJA
29/08/1949
Novi Travnik
Bosnia and Herzegovina
4799/15
13/01/2015
Ismet RIZVIĆ
09/05/1962
Novi Travnik
Bosnia and Herzegovina
4815/15
13/01/2015
Namik DUŽAN
27/02/1958
Novi Travnik
Bosnia and Herzegovina
4817/15
13/01/2015
Muhamed KERIĆ
10/02/1954
Travnik
Bosnia and Herzegovina
4819/15
13/01/2015
Ibrahim DELIĆ
07/02/1953
Novi Travnik
Bosnia and Herzegovina
4821/15
13/01/2015
Adnan ZOLOTA
12/06/1963
Novi Travnik
Bosnia and Herzegovina
4824/15
13/01/2015
Kasim Å ILJAK
26/09/1964
Novi Travnik
Bosnia and Herzegovina
4826/15
13/01/2015
Edhem SILAJDŽIJA
03/03/1951
Novi Travnik
Bosnia and Herzegovina
4829/15
13/01/2015
Fikret ZAHIROVIĆ
28/05/1958
Novi Travnik
Bosnia and Herzegovina
4833/15
13/01/2015
Nesib SKOPLJAK
13/03/1961
Novi Travnik
Bosnia and Herzegovina
4837/15
13/01/2015
Began HASKIĆ
26/07/1951
Novi Travnik
Bosnia and Herzegovina
4841/15
13/01/2015
Vejsil ĐULIĆ
15/02/1951
Novi Travnik
Bosnia and Herzegovina
4842/15
13/01/2015
Reflik ČAKIĆ
19/08/1963
Novi Travnik
Bosnia and Herzegovina
4848/15
13/01/2015
Sead HASANOVIĆ
08/02/1960
Novi Travnik
Bosnia and Herzegovina
4850/15
13/01/2015
Zajim KMETAÅ
10/04/1957
Novi Travnik
Bosnia and Herzegovina
4853/15
13/01/2015
Hatidža POKVIĆ
06/08/1963
Novi Travnik
Bosnia and Herzegovina
4861/15
13/01/2015
Meho ZUKIĆ
14/08/1968
Novi Travnik
Bosnia and Herzegovina
4951/15
13/01/2015
Suvad HODŽIĆ
20/12/1960
Novi Travnik
Bosnia and Herzegovina
4952/15
13/01/2015
Đemal KRNJIĆ
23/02/1962
Novi Travnik
Bosnia and Herzegovina
4957/15
13/01/2015
Sabahudin HELDA
10/10/1958
Novi Travnik
Bosnia and Herzegovina
5817/15
21/01/2015
Miljenka GRIZIĆ
22/06/1957
Novi Travnik
Bosnia and Herzegovina
7277/15
30/01/2015
Asim NURKIĆ
04/09/1958
Bugojno
Bosnia and Herzegovina
7290/15
30/01/2015
Senad HARAČIĆ
29/04/1957
Bugojno
Bosnia and Herzegovina
7299/15
30/01/2015
Muradif ĆOSIĆ
29/06/1963
Bugojno
Bosnia and Herzegovina
7305/15
30/01/2015
Mirsada RUSTEMPAŠIĆ
02/11/1951
Bugojno
Bosnia and Herzegovina
7308/15
30/01/2015
Ismet MALKOČ
17/11/1954
Bugojno
Bosnia and Herzegovina
7323/15
29/01/2015
Sejad ÄŒORBEG
15/09/1951
Novi Travnik
Bosnia and Herzegovina
7333/15
29/01/2015
Suvad ZAIMOVIĆ
15/04/1964
Novi Travnik
Bosnia and Herzegovina
7357/15
30/01/2015
Lutvo ĆATIĆ
27/08/1954
Bugojno
Bosnia and Herzegovina
7425/15
30/01/2015
Senija BRZIKA
30/01/1965
Bugojno
Bosnia and Herzegovina
7437/15
30/01/2015
Muhamed DAGOJA
18/04/1965
Bugojno
Bosnia and Herzegovina
7440/15
30/01/2015
Aiša TALIĆ
13/02/1951
Bugojno
Bosnia and Herzegovina
7451/15
30/01/2015
Bahrudin ĆATIĆ
14/06/1966
Bugojno
Bosnia and Herzegovina
7488/15
30/01/2015
Asim NURKIĆ
04/09/1958
Bugojno
Bosnia and Herzegovina
10020/15
05/02/2015
Safet ALIBEGOVIĆ
13/04/1956
Bugojno
Bosnia and Herzegovina
10035/15
05/02/2015
Hanka DURADBEGOVIĆ
18/08/1957
Bugojno
Bosnia and Herzegovina
10765/15
23/02/2015
Mirsad MUSIĆ
01/09/1965
Bugojno
Bosnia and Herzegovina
10775/15
23/02/2015
Rasma KULAS
18/01/1960
Donji Vakuf
Bosnia and Herzegovina
10866/15
23/02/2015
Ramiza ĆESO
01/02/1965
Bugojno
Bosnia and Herzegovina
10869/15
23/02/2015
Sadija BRČIĆ
21/03/1966
Bugojno
Bosnia and Herzegovina
10872/15
23/02/2015
Sead GURIĆ
05/09/1960
Bugojno
Bosnia and Herzegovina
10873/15
23/02/2015
Nurudin JUSIĆ
21/10/1948
Bugojno
Bosnia and Herzegovina
10877/15
23/02/2015
Enesa PURIVATRA
03/03/1960
Bugojno
Bosnia and Herzegovina
10880/15
23/02/2015
Sulejman SULTANOVIĆ
30/12/1966
Bugojno
Bosnia and Herzegovina
10886/15
23/02/2015
Nedžad LAKAČA
14/01/1963
Bugojno
Bosnia and Herzegovina
10890/15
23/02/2015
Nedžad MANDARA
27/01/1968
Bugojno
Bosnia and Herzegovina
10895/15
23/02/2015
Nermina TATARAGA
02/03/1971
Bugojno
Bosnia and Herzegovina
10900/15
23/02/2015
Nurudin JUSIĆ
21/10/1948
Bugojno
Bosnia and Herzegovina
10906/15
23/02/2015
Safeta HAJDAREVIĆ
25/10/1957
Bugojno
Bosnia and Herzegovina
10912/15
23/02/2015
Sabahudin MISTRIĆ
19/10/1964
Bugojno
Bosnia and Herzegovina
10916/15
23/02/2015
Mujesira HUSIĆ
10/07/1961
Bugojno
Bosnia and Herzegovina
11038/15
23/02/2015
Nadžid KOSTEROVIĆ
28/12/1963
Bugojno
Bosnia and Herzegovina
11039/15
23/02/2015
Hašim SADIKOVIĆ
02/06/1966
Bugojno
Bosnia and Herzegovina
11062/15
23/02/2015
Fatima KIÅ IJA
03/05/1964
Bugojno
Bosnia and Herzegovina
11068/15
23/02/2015
Mirsad BATIĆ
02/01/1958
Bugojno
Bosnia and Herzegovina
11133/15
23/02/2015
Azim VUGDALIĆ
05/01/1961
Bugojno
Bosnia and Herzegovina
11143/15
23/02/2015
Emir BRČIĆ
31/12/1964
Bugojno
Bosnia and Herzegovina
11186/15
23/02/2015
Sulejman SULTANOVIĆ
30/12/1966
Bugojno
Bosnia and Herzegovina
11315/15
23/02/2015
Nađid KOSTEROVIĆ
28/12/1963
Bugojno
Bosnia and Herzegovina
11348/15
23/02/2015
Fatima KIÅ IJA
03/05/1964
Bugojno
Bosnia and Herzegovina
11359/15
23/02/2015
Sead DAUTBEGOVIĆ
02/04/1968
Bugojno
Bosnia and Herzegovina
14105/15
04/03/2015
Jasmina ŽDRALOVIĆ
28/02/1960
Bugojno
Bosnia and Herzegovina