Arbitrariness in establishing facts and applying the substantive law - part I

A violation of the right to a fair trial exists in the event when a judgment is based on the law which ceased to be in effect at the time of adoption of a disputed judgment.
•    Decision No. U 65/01 of 25 July 2003, paragraph 46, published in the Official Gazette of Bosnia and Herzegovina, 38/03; transfer of the occupancy right to a common-law spouse; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The principle of a legal state and Article 6 of the European Convention require that the court refers to a certain legal norm. The legal grounds for the judgment must not be arbitrary, i.e. must not be beyond the context of the present case nor may its interpretation be beyond the scope of linguistic meaning.
•    Decision on Admissibility and Merits No. U 45/03 of 17 May 2004, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 34/04; civil procedure for repossession

Since the competent courts had conducted thorough evidentiary proceedings on the appellant’s lawsuit, which included engaging a finance expert and establishing the facts of the case, whereby upon having applied relevant provisions of the law they reached a conclusion to dismiss the appellant’s claim, there are no indications that the ordinary courts had arbitrarily applied the law.
•    Decision on Admissibility and Merits No. U 100/03 of 28 May 2004, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 34/04

There is arbitrariness in the application of relevant substantive regulations where ordinary courts concluded that the accident had not occurred at work and had not been work- related and that the defendant was not responsible for the damage the appellant suffered. In that manner the ordinary courts disregarded the appellant’s right as they failed to apply the law which, as lex specialis in the present case, has priority over general laws and must be applied to the present case.
•    Decision on Admissibility and Merits No. U 36/03 of 15 June 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 38/04; civil proceedings for the compensation of work-related accident

There are no indications that the ordinary courts had arbitrarily applied the provisions of the substantive law on the expiry of the statute of limitations on periodical giving.
•    Decision on Admissibility and Merits No. U 71/03 of 15 June 2004, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 34/04

There is no violation of the right to a fair trial when the Municipal Court rejected an appeal as inadmissible as the Court, under the Civil Procedure Code, is obliged to be mindful of the fact whether the representative for the party has a valid power of attorney, as otherwise it would commit a substantial violation of the civil procedure.
•    Decision on Admissibility and Merits No. U 86/03 of 23 July 2004, paragraphs 22 and 23, published in the Official Gazette of Bosnia and Herzegovina, 43/04

Adoption of the challenged judgments within the meaning of general rules of the contractual law laid down by the Law on Contractual Obligations may not constitute a violation of the appellant’s right to a fair trial in relation to the allegations on arbitrary application of the law.
•    Decision on Admissibility and Merits No. AP 122/02 of 26 August 2004, paragraphs 25 and 26, published in the Official Gazette of Bosnia and Herzegovina, 43/04; failure to fulfil an obligation within a given time-limit

The court concludes that the courts, deliberating on the appellant’s request for the merging of imprisonment sentences pronounced by legally binding decisions, acted correctly and applied the relevant provisions of the law, as it is obvious that under the circumstances in this case the appellant’s request was related to legal and procedural issues concerning another proceeding and which could not have been discussed before the courts deliberating on the appellant’s request for the merging of the sentences, in “the so-called” renewal of the proceedings.
•    Decision  on Admissibility  and  Merits  No.  U  85/03  of  29  September  2004, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 10/05

The Constitutional Court is not competent to examine the established facts and ways in which the lower instance courts had interpreted positive regulations, unless decisions of the lower instance courts are in violation of the constitutional rights. That is the case when a decision of the ordinary court disregards or erroneously applies constitutional law, when the application of positive regulations is manifestly arbitrary, when the relevant law in itself is unconstitutional or in case of a violation of basic procedural rights, such as the right to a fair trial, the right to access to court, the right to effective legal remedy and in other cases.
•    Decision on Admissibility and Merits No.  AP 381/04 of 27 October 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, challenging the facts of the case established in the proceedings before the first instance court; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
•    Decision on Admissibility and Merits No. AP 404/04 of 23 March 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 32/05; proceedings concerning the establishment of the amount of damage compensation; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
•    Decision on Admissibility and Merits No. AP 405/04 of 12 April 2005, paragraph 21, published in the Official Gazette of Bosnia and Herzegovina, 40/05; proceedings concerning the payment of salary compensation, conduct of the Supreme Court in a dispute which value does not exceed BAM 15,000; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established;
•    Decision on the Merits No. AP 978/05 of 13 September 2005, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 3/06

There was no arbitrary or discriminatory application of the law in the case of deliberating on the right to immunity of the appellants.
•    Decision on the Merits No. AP 58/03 of 29 October 2004, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 11/05

By its ruling quashing the challenged and first instance judgment and rejecting the appellant’s lawsuit, without legal requirements being met for the revision appeal to be admissible, the Supreme Court arbitrarily interpreted the right of access to court, thereby arbitrarily applying the relevant law to the appellant’s detriment, thereby violating the appellant’s right to a fair trial.
•    Decision on the Merits No. U 107/03 of 19 November 2004, paragraphs 39 and 40, published in the Official Gazette of Bosnia and Herzegovina, 23/05

The ordinary court arbitrarily applied provisions with respect to the scope of examining the appeal, that is, it exceeded the scope of its jurisdiction and examined ex officio the allegations on the statute of limitations, although they were not declared in the appeal but only during the first instance proceedings thereby causing a violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention.
•    Decision on the Merits No. AP 289/03 of 19 November 2004, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 19/05

It is beyond the jurisdiction of the Constitutional Court to assess the quality of the conclusions by the ordinary courts with respect to assessment of evidence, unless such assessment appears manifestly arbitrary. Likewise, the Constitutional Court will not interfere with the manner in which the ordinary courts adopted evidence as probative evidence material. To this end, the Constitutional Court will not interfere with the fact as to which evidence of the parties to the proceedings are being given credence to by the ordinary courts on the basis of the judicial margin of appreciation. That is exclusively the role of the ordinary courts, even when the witnesses’ statements at the public hearing and under oath are contradictory.
•    Decision on Admissibility and Merits No. AP 612/04 of 30 November 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, receiving bribe; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
•    Decision on Admissibility and Merits No. AP 539/04 of 28 June 2005, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 27/06; civil proceedings, compensation of damage caused on a vehicle; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Application of the Order of the Supervisor for the Brčko District of Bosnia and Herzegovina was arbitrary in the present case, which caused a violation of the appellant’s constitutional rights. In doing so, the Constitutional Court did not question the Supervisor’s authority with respect to regulating certain relations and accordingly adoption of certain regulations, as this authority is based on the international and legal basis.
•    Decision on Admissibility and Merits No. AP 214/03 of 30 November 2004, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 15/05; claim aimed at cancellation of unlawful registration of the right to manage real properties – Brčko District

The Constitutional Court has jurisdiction to examine the manner in which the ordinary courts applied the substantive law, when the circumstances indicate that the application of the law was arbitrary.
•    Decision on Admissibility and Merits No. AP 389/04 of 23 March 2005, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 27/05; proceedings concerning the cancellation of the gift agreement; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

By judgment granting the revision-appeal in a work-related dispute whereby the claim was related to financial claim not exceeding BAM 15,000.00, the Supreme Court arbitrarily applied Article 364 paragraph 2 of the Civil Procedure Code thereby violating the appellant’s right to a fair trial.
•    Decision on Admissibility and Merits No. AP 398/04 of 23 March 2005, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 32/05;
•    Decision on Admissibility and Merits No. AP 402/04 of 23 March 2005, paragraphs 25 and 27, published in the Official Gazette of Bosnia and Herzegovina, 32/05;
•    Decision on Admissibility and Merits No. AP 405/04 of 12 April 2005, paragraphs 23 and 24, published in the Official Gazette of Bosnia and Herzegovina, 40/05; proceedings for the payment of salaries compensation; conduct of the Supreme Court in a dispute which value does not exceed BAM 15,000; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

As it is evident in the present case that the court acted arbitrarily while establishing facts and applying relevant positive regulations, inconsistent with the position of this court referred to in paragraph 25 of this decision, the Constitutional Court holds it necessary to examine the manner in which the competent courts established facts and applied positive regulations on such facts.
•    Decision on Admissibility and Merits No. AP 311/04 of 22 April 2005, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 60/05; dismissal of a part of the claim relating to the payment of contributions due to the alleged lack of standing to sue
Providing evidence by way of indications is not in itself contrary to the principles of a fair trial under Article 6 paragraph 1 of the European Convention.
•    Decision on Admissibility and Merits No. AP 661/04 of 22 April 2005, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 44/05; criminal proceedings in which a judgment of conviction against the appellant is mainly based on the statement of a witness who made a plea bargain with the Prosecutor’s Office, as the sole direct evidence; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

When the present case concerns a different understanding of the text of the respective bank guarantee, whereby the appellant held one position while the ordinary courts had another, there is no violation of the right to a fair trial only because his legal understanding as to the classification of the contents of the respective bank guarantee within certain legal provision differs from the legal understanding by the ordinary courts.
•    Decision on Admissibility and Merits No. AP 1001/04 of 26 April 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 27/06

In the absence of explicit legal regulations on what is considered partial success in a litigation, the ordinary courts have responsibility to interpret the provisions of the Civil Procedure Code, in accordance with the principles of lawfulness and fairness and by being mindful, at all times, of the protection of the right to a fair trial of all parties to the proceedings.
•    Decision on Admissibility and Merits No. AP 536/04 of 27 May 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 67/05; civil proceedings, payment of the civil procedure; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention, as the appellant complained about erroneously and incompletely established facts of the case and erroneous and arbitrary application of the substantive law while the Constitutional Court failed to establish any other elements indicating unfair proceedings or arbitrary application of the law.
•    Decision on Admissibility and Merits No. AP 1003/04 of 28 June 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 80/05;
•    Decision on Admissibility and Merits No. AP 1008/04 of 20 December 2005, paragraphs 34 and 35, published in the Official Gazette of Bosnia and Herzegovina, 45/06;
•    Decision on Admissibility and Merits No. AP 1019/04 of 13 October 2005, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 4/06;
•    Decision on Admissibility and Merits No. AP 1063/04 of 13 October 2005, paragraphs 22 and 23, published in the Official Gazette of Bosnia and Herzegovina, 4/06

A violation of the right to a fair trial is found in a situation when a court in the state where the act had been committed, imposed a single prison sentence which is more unfavourable for the appellant than the sentence imposed in the state where the sentence was delivered.
•    Decision on Admissibility and Merits No. AP 726/04 of 28 June 2005, paragraphs 35 to 37, published in the Official Gazette of Bosnia and Herzegovina, 73/05; criminal proceedings, arbitrary application of the law in pronouncing a sentence for concurrent criminal acts committed in different states; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In the event when a first instance court arbitrarily applied the substantive regulation and legal circumstances changed at the time of the adoption of the second instance ruling, a decision of the second instance court to uphold the first instance ruling was correct.
•    Decision on Admissibility and Merits No. AP 670/04 of 13 July 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 86/05; civil proceedings; allegations as to the arbitrary application of Article 75 of the Law on Basis of Ownership and Proprietary Relations, for the reason that the ordinary courts could not prohibit construction work that was approved and taken on the basis of enforceable construction permit; construction permit cancelled at the time of adoption of a decision of the second instance court; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

In case where the law failed to provide for a solution in the absence of a regulation plan, the Appellate Court made arbitrary interpretation of that provision in the manner as to directly affecting the appellant to exercise right to a fair trial.
•    Decision on Admissibility and Merits No. AP 301/04 of 23 September 2005, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 80/05

The appellate jurisdiction of the Constitutional Court (Article VI(3)(b) of the Constitution of Bosnia and Herzegovina), in principle, does not imply that the Constitutional Court may examine decisions of the ordinary courts with respect to the established facts of the case or interpretation and application of lower level law, unless such decisions are in violation of the appellant’s constitutional rights. This shall be the case, inter alia, when the competent bodies apply positive regulations or establish facts of the case in an arbitrary manner. Therefore, the Constitutional Court cannot deal with establishing the facts related to the amount of the pension as it is a responsibility of administrative authorities.
•    Decision on the Merits No. AP 1028/04 of 2 December 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 20/06; administrative proceedings and administrative dispute for establishing the amount of pension

A violation of the right to a fair trial is present in the case when legal provisions relating to refugees or displaced persons or persons deprived of their homes due to wartime circumstances, are applied to a person who is neither a refugee nor a displaced person but rather applied in case of voluntary renunciation of apartment which is quite unrelated to the war conflict.
•    Decision on the Merits No. AP 645/04 of 2 December 2005, paragraphs 32 and 45, published in the Official Gazette of Bosnia and Herzegovina, 41/06; civil proceedings, acquiring the right to apartment after the occupancy right holder’s contract of use was cancelled; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is no violation  of  the  right  to  a  fair  trial  when  the  appellant’s  allegations are exclusively relating to the issue of judicial assessment of evidence in a criminal proceeding and to the application of positive regulations to the established facts of the case unless there are other crucial elements indicating that the assessment of evidence or application of the substantive law was arbitrary.
•    Decision on the Merits No. AP 945/04 of 20 December 2005, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 43/06;
•    Decision on Admissibility and Merits No. AP 995/04 of 22 July 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 4/06;
•    Decision on the Merits No. AP 1043/04 of 2 December 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 20/06;
•    Decision on the Merits No. AP 1089/04 of 13 October 2005, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 40/06

There is a violation of the right to a fair trial when a convicting judgment is based on evidence which, neither directly nor indirectly, indicate with certainty that the appellant had committed a criminal offence he is charged with and when the court does not provide a logical and convincing reasoning for its conclusion as to the appellant’s guilt and its assessment of evidence deems arbitrary.
•    Decision on the Merits No. AP 5/05 of 14 March 2006, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 49/06

There is no arbitrariness in the decision of the Supreme Court in relation to the application of the provisions of the substantive law concerning bank guarantee.
•    Decision on Admissibility and Merits No. AP 912/04 of 1 April 2006, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 57/06;
•    Decision on Admissibility No. AP 892/06 of 6 July 2007, paragraph 9; contentious proceedings for the payment of monetary claims in respect of the issued bank guarantee

The ordinary courts have arbitrarily applied the law in relation to the calculation of the statute of limitations regarding the lawsuit for the compensation of damage for the death of a missing person.
•    Decision on the Merits No. AP 1123/04 of 1 April 2006, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 59/06

There is no arbitrary application of the provisions of the Law on Enforcement Proceedings when the appellant, in his/her motion for enforcement against the Social Work Center, failed to indicate pursuant to which positive regulations the above referenced Center was obliged to make a payment to him as per the interim Ruling No. OVIII-456/96 of 27 February 1996, since the relevant ruling did not indicate which obligation it was.
•    Decision on the Merits No. AP 1175/05 of 9 May 2006, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 68/06; enforcement proceedings, enforcement debtor not determined; no violation of  Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

In contentious proceedings carried out on the requests for the compensation of damage for defamation, for the protection of the right to a fair trial, it is necessary for the courts, while establishing the existence of legal grounds and the amount of damage for defamation, to consistently apply the principles laid down in the relevant provisions of the Law on Obligations, Law on the Protection against Defamation and the Law on Contentious Proceedings by considering specific nature of each particular case. Only in this way is it possible to avoid arbitrary conduct of the ordinary courts in individual cases, as it occurred in the present case.
•    Decision on Admissibility and Merits No. AP 1203/05 of 27 June 2006, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 7/07; civil proceedings, courts applied the mechanism of “possible occurrence of damage”, not recognized either by the Law on Protection against Defamation or the Law on Obligations, as a condition for establishing well-foundedness of a claim for the compensation of damage for defamation; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
 
The ordinary courts arbitrarily applied the provision of the substantive law in relation to the appellant’s request for recognition of a judgment of a foreign court.
•    Decision on Admissibility and Merits No. AP 1570/05 of 27 June 2006, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 11/07; contentious proceedings, recognition of a judgment of a foreign court

There is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention in a situation when the Cantonal Court failed to apply the Law on Enforcement Proceedings which was in force and which it was obliged to apply, instead applying the previous Law on Enforcement Proceedings, inconsistent with the provision of the new Law that provides that the application of the new Law is explicitly provided for the cases such as the one at hand.
•    Decision on Admissibility and Merits No. AP 1293/05 of 12 September 2006, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 7/07; enforcement proceedings, time validity for the enforcement law; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Court of BiH has arbitrarily applied the provisions of the Election Law relating to the candidacy for elections.
•    Decision on Admissibility and Merits No. AP 2679/06 of 29 September 2006, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 9/07; administrative proceedings; arbitrariness in confirming the candidacy in elections; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The reasoning in which the courts only noted that they could not establish confidently a crucial fact that the plaintiff had been the last possessor, without elaborating in more detail the basis for such impression or the process of assessment of the relevant evidence, as required by the principle of the free appraisal of evidence, does not meet the requirement of careful and conscientious assessment of evidence.
•    Decision on Admissibility and Merits No. AP 2348/05 of 20 October 2006, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 9/07; contentious proceedings; crucial facts were not established in a reliable manner; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention shall also be violated in the event when the ordinary courts, by pronouncing a sentence, incompletely and erroneously establish the facts of the case and apply erroneously the substantive law by qualifying the appellant’s appeal as being in contempt of court and damage to its authority.
•    Decision on Admissibility and Merits No. AP 198/03 of 20 October 2006, paragraph 47, published in the Official Gazette of Bosnia and Herzegovina, 11/07; sentence for contempt of court

Through arbitrary interpretation of the right and arbitrary refusal to apply obligatory legal position of the Civil Department of the above referenced court, the Supreme Court violated the appellant’s right to a fair trial protected under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention.
•    Decision on Admissibility and Merits No. AP 2141/05 of 20 October 2006, paragraphs 36 and 37, published in the Official Gazette of Bosnia and Herzegovina, 12/07; contentious proceedings; the issue related to the starting date for running of the statutory default interest to non-pecuniary damages; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is a violation of the right under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention, in the event when the Supreme Court in its revision proceedings exceeded its authorities provided for by the Civil Procedure Code in terms of adoption of a decision on revision-appeal, whereby it established some crucial facts by a decision on revision-appeal, inconsistent with the Civil Procedure Code and when it failed to solve a particular legal matter by its decision on revision-appeal so as to make the decision at issue enforceable.
•    Decision on Admissibility and Merits No. AP 1505/06 of 20 October 2006, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 11/07; civil proceedings; the Supreme Court exceeded legal authority in the proceeding on revision-appeal; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The courts in ordinary proceedings are obliged to apply positive regulations. However, if issues of legal validity or constitutionality of a certain general legal act are raised during the proceedings, then the issue may be forwarded to the competent court, like in the present case to the Constitutional Court of the Republika Srpska, which was not done. This type of ad hoc assessment of legal validity of regulations of ordinary courts is not only unlawful but inconsistent with the constitutional principle of the rule of law under Article I(2) of the Constitution of BiH and the principle of legal certainty incorporated in the mentioned article.
•    Decision on Admissibility and Merits No. AP 1603/05 of 21 December 2006, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 34/07; criminal proceedings; assessment of legal validity by ordinary courts; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina in a situation where the court has arbitrarily applied positive regulations whereby, while deliberating on the appeal in the proceedings, it adopted a decision on the initial and not on the specified claim. There is also a violation in the event when it is not evident from the enacting clause and the reasoning of the judgment whether the court granted the claim partially or in full nor were the reasons given in this regard in the reasoning of the challenged decision.
•    Decision on Admissibility and Merits No. AP 2089/05 of 16 January 2007, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 34/07; contentious proceedings; decision on the initial and not the specified claim; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court holds that the statute of limitations on exercising the right under Article 143 of the Labour Law starts running the day after the entry into force of the ruling establishing the appellant’s laid-off employee status.
•    Decision on Admissibility and Merits No. AP 299/06 of 27 January 2007, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 38/07; civil proceedings; the Supreme Court exceeded legal authority in the proceedings on revision-appeal; a violation of Article 6 of the European Convention and Article II(3)
(e) of the Constitution of BiH established

In the absence of an explicit legal provision stipulating the starting date to award statutory default interests once the amount of a pecuniary damage to be paid by the party inflicting damage is established, the Constitutional Court holds that the ordinary courts have the right to regulate the issue through their case-law.
•    Decision on Admissibility and Merits No. AP 2524/05 of 16 January 2007, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 38/07; civil proceedings, pecuniary damage, the date from which to award statutory default interest; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is a violation of the right under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in the event when the Supreme Court, in the proceedings on the revision-appeal through arbitrary application of the law, fails to decide on admissibility of revision-appeal on the basis of relevant provisions of the law referred to in the transitional and final provisions of the Civil Procedure Code – Official Gazette of the Federation of Bosnia and Herzegovina Nos. 42/98 and 3/99.
•    Decision on Admissibility and Merits No. AP 2675/05 of 15 February 2007, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 70/07; civil proceedings, revision-appeal admissible; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is a violation of the right under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in the event when a second instance court deliberated on merits of an untimely appeal lodged by a defendant in the proceedings on the appellant’s lawsuit.
•    Decision on Admissibility and Merits No. AP 1522/05 of 15 February 2007, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 55/07; establishment of employment status, compensation of salaries; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The First Instance Disciplinary Commission exceeded the scope of the claim in the present case by finding the appellant responsible for a disciplinary offence which was not included in the disciplinary indictment, and the Second Instance Disciplinary Commission, on the appellant’s appeal, modified the first instance decision and found the appellant responsible in the challenged part, noting that it was the result of the scope of the claim having been exceeded. Therefore, the appellant did not have all of the guarantees provided for by Article 6 of the European Convention which guarantees to anyone, against whom “criminal charges” were pressed, the right to a fair trial and public hearing within a reasonable time before “an independent and impartial tribunal”, the
right to defence and equal position with the plaintiff.
•    Decision on Admissibility and Merits No. AP 2581/05 of 30 March 2007, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 50/07; disciplinary proceedings against a judge carried out before the High Judicial and Prosecutorial Council; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There has been a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention as the Cantonal Court, in deciding on the employer’s complaint, arbitrarily misapplied positive regulations and, thus, modified the first-instance judgment by dismissing the appellant’s claim as unfounded, since the appellant’s employer stated before the court that he did not have information which he should have had in accordance with the law and which was to be used for calculation of compensation for the appellant’s reduced salary within the meaning of Article 79(2) of the Law on Pension and Disability Insurance, and, furthermore, did not state in which manner the compensation was to be determined in such a situation, nor did he give the appellant an opportunity to present evidence in support of his claim in the manner considered as regular and acceptable by the Cantonal Court so that he deprived the appellant of the right which he was entitled to in accordance with the law.
•    Decision on Admissibility and Merits No. AP 1475/05 of 30 March 2007, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 79/07; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The court has applied the law arbitrarily when interpreting the lack of regulations regulating the amount of annual leave allowance as a loss of the appellant’s right to annual leave allowance, irrespective of the fact that the basis for this type of compensation or the very right to compensation of annual leave allowance, are provided for by the Law on Judicial and Prosecutorial Service in the Federation of Bosnia and Herzegovina.
•    Decision on Admissibility and Merits No. AP 2587/05 of 23 May 2007, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 70/07; contentious proceedings, establishing the right to annual leave allowance; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Supreme Court has incorrectly applied the substantive law when basing its judgment on dismissal of the claim for compensation for pecuniary damages on the Law on Health Insurance and the Book of Rules on Terms and Conditions of Referral of an Insurance Beneficiary for Medical Treatment Abroad, taking as a starting point that the under-age appellant underwent medical treatment abroad, without receiving a permission for such a treatment from a competent health institution nor did he comply with the legal procedure for undergoing medical treatment abroad. The Constitutional Court holds as correct the conclusions of the lower instance courts based on the Law on Obligations. The position of the Supreme Court in the challenged decision is not relevant for the settlement of the present dispute, as no retrospective claim had been filed in the proceedings before the courts against the competent health insurance institution.
•    Decision on Admissibility and Merits No. AP 97/06 of 5 June 2007, paragraphs 30 to 32, published in the Official Gazette of Bosnia and Herzegovina, 6/08; erroneous application of the substantive law; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

Retroactive payment of contributions may not affect the beginning for exercising the right to pension and determination of the day on which to commence the payment of pension, especially if taking into account that delayed payment of contributions is made by paying default interest to the Fund. Anything different, in the opinion of the Constitutional Court, would constitute an excessive burden for the appellant who would be in a situation to suffer the consequences of the employer’s irregular payment of contributions due to the employer’s failure to fulfill its legal obligation as an insurance payer to the Fund as an insurance beneficiary, which also has a legal obligation to control the insurance payer and to undertake appropriate legal measures in the event of failure to pay contributions.
•    Decision on Admissibility and Merits No. AP 1330/06 of 16 July 2007, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 79/07; arbitrary interpretation of the provisions of the Law on Pension and Disability Insurance; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established;
•    Decision on Admissibility and Merits No. AP 2019/06 of 3 April 2008, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 41/08

The ordinary courts have arbitrarily applied the substantive law to the detriment of the appellant’s constitutional right to a fair trial in the event when they failed to establish in the ordinary court proceedings the elements of invalidity of the contract stipulated by Article 103 of the Law on Obligations, i.e. that the contract was inconsistent with “the Constitution of RBiH, coercive regulations or moral of the society” and when it does not follow from the established facts that the court settlement was null and void within the meaning of Article 88 of the Law on Obligations. The conclusion of the ordinary courts is fully arbitrary to that end, as the present matter does not concern the contract concluded on behalf of another person without his/her authorization and without subsequently given permission.
•    Decision on Admissibility and Merits No. AP 1783/06 of 13 September 2007, paragraphs 41 to 43, published in the Official Gazette of Bosnia and Herzegovina, 86/07; civil proceedings, arbitrary application of the law; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The position of the County Court, according to which default interests are calculated from the date of adoption of the first instance decision, is arbitrary, especially when, taking into account provisions of Articles 186 and 277 of the Law on Obligations, the County Court failed to assess in its decision, and from which it follows, as already established by the Constitutional Court, that when it comes to pecuniary damage, default interest is awarded from the date the damage occurred and not from the date of adoption of the first instance judgment (filing lawsuit).
•    Decision on Admissibility and Merits No. AP 1433/06 of 13 September 2007, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 86/07; civil proceedings, payment of damage compensation, default interest and costs of the proceedings to the appellant’s attorney; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established;
•    Decision on Admissibility and Merits No. AP 1757/06 of 8 July 2008, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 70/07

The ordinary courts applied the procedural law arbitrarily, since they completely disregarded, while deliberating on the appellant’s appeal, the provision of Article 141 paragraph 2 of the Law on Minor Offence Proceedings that stipulates that summons for hearing or questioning are served on the accused personally. This occurred in the present case thus preventing the appellants to participate in the proceedings, propose their evidence and oppose the arguments of the opposing party by their own arguments.
•    Decision on Admissibility and Merits No. AP 1480/06 of 18 October 2007, paragraphs 32 and 33, published in the Official Gazette of Bosnia and Herzegovina, 2/08; minor offence proceedings; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

Validly concluded sales contract on securities and shares of the enterprise “Polirond” d.d., in the period when the laws on securities and the laws on the Commission for Securities and the Securities Register could not have been implemented due to the state’s failure to provide for the institutional conditions, must be performed, as the regular transaction of securities as an expression on one hand, disposal of one’s own property and investments on the other, is more important than meeting of the public interest incorporated in these laws through complete transactions blockage, pending the implementation of the mentioned laws.
•    Decision on Admissibility and Merits No. AP 2195/06 of 18 October 2007, paragraph 54, published in the Official Gazette of Bosnia and Herzegovina, 6/08; the right to a fair trial, the right to property, arbitrary application of the law, securities transaction; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The fact that the budget did not provide the funds for the payment of annual leave allowance, which the Cantonal Court gave as one of the reasons for considering that the appellants were not entitled to annual leave allowance can only be interpreted as constituting arbitrariness in applying the law by the Cantonal Court.
•    Decision on Admissibility and Merits No. AP 1315/06 of 8 November 2007, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 6/08; annual leave allowance, Tuzla Canton

The Constitutional Court does not find arbitrariness in the application of the law in a situation where the ordinary courts established in an undisputed manner that the attorney for the appellant was duly notified of the hearing, which he failed to attend or justify his absence while the defendant did not request that the hearing be held.
•    Decision on Admissibility No. AP 1793/06 of 13 December 2007, paragraph 11; contentious proceedings on the lawsuit for establishment of the property right

The Constitutional Court holds that there is no arbitrariness in the application of the provisions of the Law on Obligations when ordinary courts concluded that: “the very possibility of running a certain business, such as depositing the amount owed into savings, does not mean as yet “the regular course of affairs” or special circumstances, i.e. a realistic chance. The second instance court correctly concluded that the appellant was obliged to prove that it was her real intention, i.e. a business move that could be regarded as a probability bordering on certainty and not only a possibility. Otherwise, if the appellant’s view were to be upheld, any citizen could choose any business option and claim hypothetically to have suffered damage, as he/she could have made such a move but was prevented from doing so due to the tardiness of the debtor...”