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OF BOSNIA AND HERZEGOVINA
Reisa Dž.Čauševića 6
71000 Sarajevo
Bosnia and Herzegovina
tel: (033)
251-226
fax: (033) 561-134
e-mail: info@ccbh.ba
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| Sessions | | | 11 November 2009 - The Constitutional Court of BiH held today its 88th session of the Grand Chamber. At the today''''''''s session, the Constitutional Court of BiH decided on 1 request for interim measure and 161 individual appeals. The Court decided 19 appeals on the merits of the case, rejecting 59 appeals on grounds of manifest inadmissibility and 83 appeals on other grounds of inadmissibility (expired time limit for filing, failure to exhaust legal remedies, lack of jurisdiction of the Constitutional Court of BiH etc.).
In several cases, the Constitutional Court of BiH found a violation of the right to a fair trial on grounds of unreasonable length of proceedings pending before the courts and administrative authorities. The Constitutional Court of BiH particularly emphasized that this legal problem was constantly present in the case-law, and that courts and administrative authorities did not take into account the standards that arose under Article II(3)(e) of the Constitution of BiH and Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Thus, for example, at this session the Constitutional Court of BiH discussed again the violation of the right to fair trial on grounds of unreasonable length of proceedings in 11 out of 19 decisions on the merits.
Inter alia, the Constitutional Court of BiH granted the appeal of Dusanka Ajder - case No. AP 2255/07 and established the violation of her right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Constitutional Court of BiH concluded that the starting point for exercising the right to a pension, i.e. the starting point of receiving pension payments, began from the date of filing the request if a person had fulfilled all requirements for gaining such right as prescribed by law. The subsequent or retroactive payment of contributions does not affect determination of the starting point for exercising the right to a pension and receiving pension payments.
Also, the Constitutional Court of BiH partially granted the appeal of Miljan Radonja - case No. AP 1812/07, establishing a violation of Article II(3)(d) of the Constitution of Bosnia and Herzegovina and Article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms because Miljan Radonja had not been brought before the judge in the procedure of issuance of rulings on custody extension by the Supreme Court of the Republika Srpska No. 118-0-Kž-07-000 107 of 15 May 2007 and No. 118-0-Kv-07-000 010 of 2 May 2007.
Constitutional Court of BiH dismissed as ill-founded the appeal of NIGD «Dnevne nezavisne novine» Banja Luka - case No. AP 1819/07 filed against the Judgment of the County Court in Banja Luka No. Gž-626/04 of 12 April 2007 and the Judgment of the Basic Court in Banja Luka No. P-1415/02 of 3 November 2003 in relation to Article II(3)(h) of the Constitution of Bosnia and Herzegovina and Article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Constitutional Court of BiH dismissed as inadmissible the appeal of Svetozar Acimovic - case No. AP 1047/07 filed against the Judgment of the County Court in Trebinje No. Gž-546/05 of 9 February 2007 and the Judgment of the Basic Court in Trebinje No. P-27/05 of 1 July 2005, due to its being ratione personae incompatible with the Constitution of Bosnia and Herzegovina. The appellant challenged the final court decision reviewing the Ruling of Public Company “Elektroprivreda“ Republike Srpske - Trebinje No. 02-111-12-1/03 of 30 April 2003 on termination of the appellant’s employment as of 30 April 2003, which had been issued on the basis of the Decision of the High Representative for Bosnia and Herzegovina No. 106/03 of 26 February 2003. The High Representative removed the appellant from the position of director general of the company “Elektroprivreda“ Republike Srpske and banned him from holding any official, elected or nominated public office, including candidacy in elections and performing any office within political parties.
Today, the Constitutional Court of BiH also considered the Judgment of the European Court of Human Rights in case Suljagić v. Bosnia and Herzegovina, application No. 27912/02 of 3 November 2009 relating to the old foreign currency savings deposits. In view of the significance of this decision for the public, the Constitutional Court of BiH refers to the release of the Judgment of the European Court of Human Rights related to this decision. This press release contains the essential conclusions (available at the web-page: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=37107582&skin=hudoc-pr-en&action=request/):
“Decision of the Court
The Court first noted that, notwithstanding the fact that the application had been lodged in 2002, it would limit its analysis to the current legislation on “old” foreign-currency savings.
Concerning the applicant’s complaint about the limited cash payments, the Court observed that in addition to the initial payment, according to the amortisation plan for the government bonds, he was entitled to receive his entire old foreign-currency savings in eight instalments. Given the effects of the war and the ongoing reforms of the economic structure the Court considered that the State could limit access to savings. The Court did not see any reason why the applicant would not be able to sell the bonds for anything near their nominal value. Moreover he was not required to sell them, but could instead opt for the cash payments in eight instalments, one of which he had already received.
Regarding the interest rate for the period from January 1992 to April 2006, the Court took note of the fact that the neighbouring countries, in which similar repayment schemes were set up, had agreed to pay considerably higher interest rates. Nevertheless, the Court did not consider this factor sufficient to render the current legislation contrary to Article 1 of Protocol No. 1, thereby following the argument of the Constitutional Court of Bosnia and Herzegovina regarding the need to reconstruct the national economy following the war.
The Court agreed with the applicant, however, that the implementation of the legislation was unsatisfactory. As a result of the fact that the bonds due in March 2008 had not been issued the applicant was still unable to sell them on the Stock Exchange and thus obtain early cash payments. Moreover there had been a delay in paying the instalments.
Notwithstanding the fact that the “old” foreign currency savings inherited from the SFRY constituted a considerable burden on the successor States, the rule of law underlying the Convention required the Contracting Parties to consistently apply the laws they had enacted. The Court therefore held unanimously that in view of the deficient implementation of the legislation there had been a violation of Article 1 of Protocol No. 1.
The Court moreover unanimously decided to adjourn, for six months from the date on which the judgment becomes final, the proceedings in any cases concerning “old” foreign-currency savings in the Federation of Bosnia and Herzegovina and in the administrative entity of the Brčko District in which the applicants have obtained verification certificates (like the applicant in the present case).
Under Article 46 (binding force and execution of judgments), the Court noted that the case concerned a systemic problem, namely the shortcomings of the repayment scheme for foreign currency deposited before the dissolution of the SFRY. This problem lay behind more than 1,350 similar applications currently pending before the Court.
The Court held unanimously that Bosnia and Herzegovina had to ensure, within six months from the date on which the judgment becomes final, that in the Federation of Bosnia and Herzegovina government bonds are issued, outstanding instalments are paid and that, in the case of late payments of forthcoming instalments, default interest is paid at the statutory rate.”
The Constitutional Court of BiH is scheduled to hold the following Grand Chamber session on 2 December 2009.
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