ROMAN CATHOLIC ARCHDIOCESE OF VRHBOSNA v. BOSNIA AND HERZEGOVINA - 40694/13 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2018] ECHR 449 (05 June 2018)

In the case of Roman Catholic Archdiocese of Vrhbosna v. Bosnia and Herzegovina,

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

Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 15 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 40694/13) 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 the Roman Catholic Archdiocese of Vrhbosna ("the applicant"), on 16 May 2013.

2. The applicant was represented by Petrušić & Co, a law firm practising in Zenica. The Government of Bosnia and Herzegovina ("the Government") were represented by their Agent, Ms B. Skalonjić.

3. On 28 March 2017 the complaints concerning Article 6 and Article 1 of Protocol No.1 were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant is a Roman Catholic community in Bosnia and Herzegovina, based in Sarajevo.

5. By decision of 9 May 2003, which became final and binding on 4 September 2003, the Human Rights Chamber for Bosnia and Herzegovina ("the Chamber") found that the Federation of Bosnia and Herzegovina (an entity of Bosnia and Herzegovina) had discriminated against the applicant in its enjoyment of the right to freedom of religion guaranteed by Article 9 of the Convention. In order to remedy the situation it ordered the Federation of Bosnia and Herzegovina to ensure the relocation of public schools housed in the Archdiocese High School building in Travnik, and to reinstate the applicant in the premises within one year. The Chamber rejected a request by the applicant for pecuniary and non-pecuniary damages.

6. By an agreement of 21 May 2004, the Federation of Bosnia and Herzegovina undertook to reinstate the applicant in the impugned premises by 1 July 2006. Shortly thereafter, the Travnik Municipal Council adopted the implementing decisions, and also one of the public schools was moved from the premises.

7. On 23 June 2010 the Travnik Municipal Council issued a writ of execution (rješenje o izvršenju). On 5 October 2011 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 17 October 2011 the Travnik Municipal Court held that it lacked jurisdiction to deal with the case. On 16 May 2012 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 3 July 2012 the Travnik Municipal Court held that the decisions of the Chamber were not subject to enforcement proceedings. On 12 July 2012 the applicant lodged an appeal against that decision. At the date of the latest information available to the Court (28 August 2017), the Travnik Cantonal Court had not yet ruled on the matter.

8. On 30 October 2012 the Constitutional Court of Bosnia and Herzegovina determined that the Federation of Bosnia and Herzegovina had not yet fully enforced the decision of 9 May 2003.

9. On 17 February 2017 the applicant initiated civil proceedings against the public school remaining in its premises, requesting its relocation, as well as damages for the use of the premises for the period between 1 February 2014 and 1 June 2017.

10. On 14 July 2017 the Municipal Court in Travnik rendered a judgment in the applicant's favour, rewarding in full its claims finally specified in the proceedings, namely 270,360 convertible marks (BAM)[1] for pecuniary damages and 6,713 BAM for costs and expenses. The Municipal Court also ordered the respondent to vacate the applicant's premises within 30 days from receiving the judgment. On 20 December 2017 the Cantonal Court in Novi Travnik upheld the judgment of the first-instance court. At the date of the latest information available to the Court (20 February 2018), the Central Bosnia Canton submitted a revision petition to the Supreme Court of the Federation of Bosnia and Herzegovina against the final judgment in these proceedings. It also appears that the public school has still not been relocated.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1

11. The applicant complained that the non-enforcement of the domestic decision given in its favour had violated its rights under Article 6 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:

Article 6

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ..."

Article 1 of Protocol No. 1

"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 that the application has been introduced out of time

12. The Government maintained that the lodging of the application ten years after the adoption of the Chamber's decision indicated a very passive approach on the part of the applicant, which had resulted in the expiry of the six month time-limit for the purposes of Article 35 § 1 of the Convention.

13. The applicant disagreed.

14. The Court reiterates that Article 35 § 1 of the Convention provides that the Court may only deal with a complaint which has been lodged within six months of the date of the final decision in the process of the exhaustion of domestic remedies. Where the alleged violation constitutes a continuing situation against which no domestic remedy is available, such as the non-enforcement of the decisions of the Chamber (see Karanović v. Bosnia and Herzegovina, no. 39462/03, § 19, 20 November 2007), the six-month period starts to run from the end of the continuing situation (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 159, ECHR 2009, and Arežina v. Bosnia and Herzegovina (dec.) [Committee], nos. 66816/09 and 13 others, 3 July 2012). In the present case, the decision at issue has yet to be enforced.

15. The Government's objection is therefore dismissed.

2. Other grounds for inadmissibility

16. The Court further notes that the application is otherwise neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It accordingly declares it admissible.

B. Merits

17. The general principles relating to the non-enforcement or delayed enforcement of final domestic judgments were set out in Hornsby v. Greece (19 March 1997, § 40, Reports of Judgments and Decisions 1997-�II).

18. The Court has also already 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 Jeličić v. Bosnia and Herzegovina, no. 41183/02, §§ 38-46 and 48-49, ECHR 2006-�XII, and Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 and 14 others, § 15, 10 November 2009).

19. Having 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 decision under consideration in the present case had not been enforced for more than fourteen years, the Court considers that there has accordingly been a breach of both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. 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

21. The applicant claimed a total of 1,522,143 euros (EUR) in respect of pecuniary damage, for loss of rent over a period of 169 months, as well as compensation for the use of the playground during the same period. The applicant also claimed EUR 200,000 in respect of non-pecuniary damage.

22. The Government contested the claims as unfounded and excessive.

23. Regarding the claim for the pecuniary damages, the Court notes that the purpose of Article 41 is to afford just satisfaction to the injured party where the internal law of the High Contracting Party concerned allows only partial reparation to be made. As it is clear from the facts of the case the applicant had recourse to civil proceedings for claiming pecuniary damages for the use of its property, and its claims were upheld in full for the period for which they were requested (see paragraph 10 above). In the absence of any explanation by the applicant, the Court cannot speculate about the reasons why the applicant had not used this recourse before, or why the claim was limited in time. The Court therefore rejects the applicant's claim for pecuniary damage. However, the 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 41 of the Convention, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.

24. Furthermore, the Court reiterates that a judgment in which it finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no. 40765/02, § 71, ECHR 2006-XIV, and Marčić and Others v. Serbia, no. 17556/05, § 64, 30 October 2007). Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure immediate and full enforcement of the decision of 9 May 2003 (see, mutatis mutanids, Apostol, cited above, §§ 72-73; Pralica v. Bosnia and Herzegovina, no. 38945/05, § 20, 27 January 2009; and Marčić and Others, cited above, § 65).

B. Costs and expenses

25. The applicant also claimed BAM 24,609 (approximately EUR 12,582) for the costs and expenses incurred before the domestic courts and the Court.

26. The Government considered this amount unsubstantiated and/or excessive.

27. 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, 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 500.

C. Default interest

28. 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. Declares the application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to secure the immediate and full enforcement of the Chamber's decision of 9 May 2003, and 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:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiCarlo Ranzoni
Deputy RegistrarPresident

[1]. The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.

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You are here: BAILII >> Databases >> European Court of Human Rights >> ROMAN CATHOLIC ARCHDIOCESE OF VRHBOSNA v. BOSNIA AND HERZEGOVINA - 40694/13 (Judgment : Article 6 - Right to a fair trial : Fourth Section Committee) [2018] ECHR 449 (05 June 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/449.html Cite as: ECLI:CE:ECHR:2018:0605JUD004069413, CE:ECHR:2018:0605JUD004069413, [2018] ECHR 449