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

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...”
•    Decision on Admissibility No. AP 2121/06 of 13 December 2007, paragraph 14; contentious proceedings on the lawsuit for compensation of damage, in the form of the profit loss, due to the debtor’s tardiness

The Constitutional Court holds that a violation of the appellant’s right to a fair trial occurred when the Supreme Court, in the process of deliberating on revision-appeal, exceeded the scope of the reasons mentioned in the revision-appeal and arbitrarily applied the provision of the Law on the Constitutional Court of RS.
•    Decision on Admissibility and Merits No. AP 1434/06 of 13 December 2007, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 12/08; revision-appeal; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

Thus, in adopting a decision on the lawfulness of the defendant’ ruling on removing the appellant from the lawyers’ register of the defendant, the Supreme Court considered as a crucial reason a possibility for the appellant to be re-entered in the defendant’s lawyers’ register. Aside from the fact that the registration in the defendant’s lawyers’ register was not the subject of dispute, it is completely illogical and arbitrary to assess the lawfulness of the ruling on removing the appellant from the defendant’s lawyers’ register by considering the appellant’s right to request new registration in the mentioned register. The fact relating to the mentioned right of the appellant should have in no way affected adoption of the decision on the lawfulness of the ruling which the appellant challenged. Therefore, the Constitutional Court holds that the reasoning of the Supreme Court in the challenged decision, in the mentioned sense, did not satisfy the principle of a fair trial under Article 6 paragraph 1 of the European Convention. In addition, the Constitutional Court observes that the legal regulation, which the Supreme Court referred to in the judgment, was misquoted in the challenged judgment of the Supreme Court. In the part of the judgment where it referred to the meeting of requirements under Article 266 paragraph 1 item 4 of the Law on the General Administrative Proceedings, which was in force at the time of adoption of the challenged act, the Supreme Court stated that the mentioned article was in line with the present Article 252 paragraph 1 item 4 of the presently applicable Law on Administrative Disputes. Although it is possible to conclude that it concerned lapsus calami and that the Supreme Court, as a matter of fact, referred to the present Law on General Administrative Proceedings, the Constitutional Court holds that this omission on the part of the Supreme Court occurred as a result of insufficiently careful and conscientious approach in adopting the Judgment that the appellant has challenged.
•    Decision on Admissibility and Merits No. AP 1518/06 of 29 March 2008, paragraphs 56 and 57, published in the Official Gazette of Bosnia and Herzegovina, 47/08; arbitrariness in the case relating to the removal of the appellant from the lawyers’ register; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court recalls that the agreement of the defendant to withdraw a lawsuit after the lawsuit had been delivered to the defendant, is explicitly stipulated by the provision of Article 59 of the Civil Procedure Code. Agreement of the defendant constitutes a legal assumption for the lawsuit to be considered withdrawn. In the present case, the attorney for the second and fourth defendant directly and unambiguously stated on their behalf that they did not agree to withdrawal of the lawsuit. The Constitutional Court holds that following this statement the court did not have legal grounds to establish, by its ruling, that the lawsuit is considered withdrawn. Also, the Constitutional Court does not hold that, based on the behavior of the attorney for the defendants that followed, indirectly, that it is possible to consider that it follows that the representative for the defendants gave consent for the lawsuit to be withdrawn, as concluded by the County Court, thereby redressing a violation of the law. Namely, the Constitutional Court holds that the effect of complete and explicit statement on the opposition against withdrawal of the lawsuit cannot be rendered ineffective by actions, which in their essence indirectly, based on assumptions, deny the statement given. In view of the aforementioned, the Constitutional Court holds that the County Court and Basic Court applied arbitrarily the provision of Article 59 of the Civil Procedure Code and that such arbitrariness undoubtedly affected the appellant’s right to a fair trial.
•    Decision on Admissibility and Merits No. AP 431/08 of 17 April 2008, paragraphs 29 and 30, published in the Official Gazette of Bosnia and Herzegovina, 49/08; civil proceedings, compensation of pecuniary damage, acquiring with no grounds; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

While deliberating on the plaintiffs’ appeals, in the proceedings relating to the payment of difference in salaries and other financial rights arising from employment, the County Court erroneously applied the substantive law, for in the disputes at hand the relevant provisions are those provisions of the Labour Law, which is by legal nature lex specialis unlike the Law on Obligations. Namely, in accordance with Article 105 of the Labour Law, the plaintiffs had the right to file a lawsuit within a year from the date of learning of the violation (subjective time limit) and at the latest within three years from the date the violation was committed (objective time limit). Therefore, while deliberating on the claims, the County Court arbitrarily applied the legal grounds for decision-making.
•    Decision on Admissibility and Merits No. AP 1258/06 of 12 June 2008, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 91/08; arbitrary application of the Law on Obligations in the proceedings related to the payment of salaries, annual leave allowance; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

As stipulated by the provisions of the Civil Procedure Code, in the proceeding of deliberating on the appeal the court examines the first instance judgment in the part challenged by the appeal, within the scope of the reasons stated in the appeal. Therefore, as the County Court considered only the appellant’s appeal against the first instance judgment on the merits, it had to confine itself only to the allegations stated in the appeal, and it had to be mindful of the mechanism reformatio in peus, i.e. prohibition that it is not possible to modify the first instance decision making it “negative” to the detriment of the party lodging the appeal. The defendant’s appeal was considered only from the procedural aspect, i.e. whether the appeal was lodged in a timely fashion and dismissed. Thus, the County Court could have only examined the merits of the appellant’s allegations stated in the appeal, in the part she complained against. Thus, the first instance judgment, in the part against which the appellant did not file the appeal, and against which the defendant filed an untimely appeal, became undoubtedly legally binding. Inconsistent with the provisions of Article 230 of the Civil Procedure Code and by acting in this manner, the County Court modified the judgment to the detriment of the party which was the only one who had filed an appeal, by quashing the first instance judgment in the part against which no admissible, complete and timely appeal was filed, thereby completely exceeding the scope of its competence in deliberating in the proceedings on the appeal.
•    Decision on Admissibility and Merits No. AP 1876/06 of 4 September 2008, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 91/08; arbitrary application of the Civil Procedure Code; labour dispute – payment of salaries; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Supreme Court applied arbitrarily the provision of Article 247 paragraph 2 of the Civil Procedure Code, while deciding on the revision-appeal which the plaintiff withdrew previously and the Supreme Court should have rejected as inadmissible.
•    Decision on Admissibility and Merits No. AP 1116/07 of 17 September 2008, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 102/08; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There is no arbitrariness in the legal position of the courts according to which the sales contract concluded on the basis of authorization certified by a foreign court without an “apostille” seal is null and void. The stipulated obligatory form of attestation by “apostille” seal is necessary for the purpose of complying with the principle of state sovereignty and legal certainty, as Bosnia and Herzegovina, with that seal on a foreign public document, receives a guarantee of another state that it involves a competent body and original signature of an official of the respective state, thereby, at the same time, protecting legal interests of other parties to the proceedings that may be subject to legal transaction with a person possessing the certified public document. Therefore, there is a justified public interest for such a procedure and formalities, which the Constitutional Court does not consider as an excessive burden.
•    Decision on Admissibility No. AP 1516/06 of 17 September 2008, paragraphs 17 and 18, published in the Official Gazette of Bosnia and Herzegovina, 91/08; legal validity of the sales contract within the meaning of the Law on Sale of Apartments; appeal manifestly (prima facie) ill-founded

There is no arbitrariness on the part of the Supreme Court in assessing that the appellant failed to prove during the course of the proceedings that the will of the plaintiff – the counter-defendant - was the real will to sell the respective real properties, that is that he acquired the ownership right to real properties voluntarily within the meaning of additional provision of Article 17.b) paragraph 2 of the Law on Cessation of Application of the Law on Temporarily Abandoned Real Properties owned by Citizens, since it was undisputedly established that the respective contract was concluded through some sort of coercion, bearing in mind the wartime circumstances, which is confirmed by the fact relating to obvious disproportion between the price and real value of the respective real properties.
•    Decision on Admissibility and Merits No. AP 292/06 of 28 November 2008, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 19/09; invalidity of the contract on purchase and sale concluded during the wartime; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Restriction of the right to institute a contentious proceeding for the compensation of severance pay, as interpreted by the Constitutional Court and by the Cantonal Court in the more recent judgments, has legitimate goal and is not absolute nor does it violate the very essence of the right of employees whose right to severance package was recognized since they have a long period of time during which they are entitled to seek court protection in case of failure to pay out the severance package. In view of the aforementioned, the Constitutional Court concludes that the reasoning of the judgment of the Cantonal Court, in relation to the issue of calculation of the statute of limitations, is arbitrary as far as it brought into question the principle of legal certainty and the appellant’s enjoyment of the right to a fair trial.
•    Decision on Admissibility and Merits No. AP 3263/06 of 18 December 2008, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 20/09; the statute of limitations in the proceedings for the compensation of severance package; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

As to the appellant’s allegations that his right to a fair trial has been violated for failure to take a final decision in the proceedings for repossession of the apartment, which he instituted before the competent administrative authority, the Constitutional Court concludes that the appellant instituted two proceedings on the same legal matter at the same time. In this connection, the Constitutional Court refers to the opinion of the Commission for Human Rights within the Constitutional Court of Bosnia and Herzegovina (see, Commission for Human Rights within the Constitutional Court, Decision on Admissibility and Merits, No. CH/00/4259, Dr. Ljiljana Vujić and Others). According to that opinion of the Commission, it is not justified to conduct parallel proceedings for repossession of the apartment if there is a decision of the CPRC which ordered in its decisions the termination of the procedure for enforcement of the CRPC’S decision. Taking into account such a case-law, the Constitutional Court holds that the administrative authorities and the courts should have interrupted administrative proceedings with regards to the claim for repossession of the apartment in question after the institution of the procedure for enforcement of the CRPC’s decision, i.e. they should have merged these proceedings. Given the fact that the preliminary issue was resolved in the procedure for enforcement of the CRPC’s decision, the appellant was entitled to request the continuation of the proceedings. Furthermore, the appellant could have instituted contentious proceedings to establish legal validity of the contract on purchase of the apartment in question in order to present all arguments with regards to his right to the apartment in question.
•    Decision on Admissibility and Merits No. AP 1970/06 of 15 January 2009, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 26/09; procedure for repossession of an apartment, there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There has been no violation of the right to a fair trial as the competent authorities were authorized in accordance with the law to adjourn administrative enforcement of the CRPC’s decision until the conclusion of the contentious proceedings to establish nullity of the contract on the purchase of the apartment in question.
•    Decision on Admissibility and Merits No. AP 3321/06 of 26 February 2009, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 33/09; procedure of repossession of the apartment; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The County Court misapplied the substantive law in a manifestly arbitrary manner to the appellant’s detriment by modifying a legally binding ruling on enforcement in the appellate proceedings against a ruling imposing a sanction, which, as legally binding ruling was not nor could it be the subject of the appellant proceedings in question.
•    Decision on Admissibility and Merits No. AP 3309/06 of 17 March 2009, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 48/09; arbitrary application of law in the enforcement proceedings; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

Having interpreted the text of the bank guarantee in question with regards to the provisions of the purchase agreement dated 23 March 2000 by applying the provision of Article 99 of the Law on Obligations and common will of the contractual parties, the Supreme Court concluded that the advance paid by the plaintiff into the account of the seller opened with the appellant’s predecessor through the bank guarantee covered not only the quantity shortage of delivered goods but also the quality deficiencies and increase in turnover costs. Furthermore, the Supreme Court took the position that the plaintiff was not obliged to present evidence to prove deficiencies in the quality of delivered goods or increase in transportation costs, since it was provided for by the guarantee. The Constitutional Court holds that the Supreme Court gave clear and specified reasons, which cannot be considered as arbitrary. It does not follow from the allegations set forth in the appeal and submitted documents that the challenged decision violated or disregarded the appellant’s constitutional rights.
•    Decision on Admissibility No. 2899/06 of 13 May 2009, paragraph 15; bank guarantee, arbitrariness, appeal manifestly (prima facie) ill-founded

Taking into account the provision of Article 186 in conjunction with Article 277 of the Law on Obligations, the Constitutional Court concludes that in a situation where the courts established that the damage inflicted upon the appellants had occurred on 27 July 1993 (from 21 May to 27 July 1993 the property was repeatedly seized from the appellants’ shop - the inventory 1 through 44) and this fact was undisputed by the parties to the proceedings, the County Court applied the substantive law in an arbitrary manner by awarding damage compensation to the appellants from the moment when they had learnt about the damage (1 January 1999), i.e. from the date of expert examination by the Institute (22 August 2005). The courts substantiated their conduct by referring to Articles 185 and 189(2) of the Law on Obligations although the said provisions do not govern the issue of statutory default interest, which is governed by the provisions of Articles 277 through 279 of the Law on Obligations. Taking into account the aforementioned reasons, the Constitutional Court holds that the manner in which the Supreme Court and the County Court applied the positive regulations in their decisions is arbitrary and it amounts to a violation of the appellants’ 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.
•    Decision on Admissibility and Merits No. AP 775/08 of 30 May 2009, paragraph 89, published in the Official Gazette of Bosnia and Herzegovina, 74/09; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Article 141 of the Family Law expressly stipulates that the provisions of the Civil Procedure Code shall apply to the procedure for establishing or challenging paternity, unless otherwise prescribed by that law. The application of the principle of civil procedure implies that the court decides within the limits of the claims specified by the parties to the proceedings. Thus, the Constitutional Court holds that the appellant’s allegations that the DNA paternity testing was not carried out in the present case did not amount to the violation of the right to a fair trial as the applied Family Law does not stipulates such an obligation.
•    Decision on Admissibility and Merits No. AP 68/07 of 8 September 2009, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 20/10; the procedure for establishing paternity, the DNA paternity testing, there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court has found in the present case that the appellant presented the facts before the courts from which it could be presumed that there was discrimination by the defendant in the application of Article 143 of the Labour Law and, accordingly, the courts in the present case should have placed the burden of proof on the defendant. However, the courts dismissed the appellant’s civil action by which she requested the courts to establish that she was discriminated against by the defendant in the application of Article 143 of the Labour Law; the courts reasoned that the appellant did not make it possible for the court to form its opinion on the facts presented to the court by the appellant. In view of the above, the Constitutional Court holds that the ordinary courts failed to safeguard the procedural rights of the appellant so that the appellant had to bear an excessive burden of proving the facts, which were at the disposal of the defendant only and which should not have been proved by the appellant, but which the defendant should have contested.
•    Decision on Admissibility and Merits No. AP 1093/07 of 25 September 2009, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 23/10; labor dispute, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

Taking into account the provision of Article 143(1) and (2) of the Labour Law, the Constitutional Court concludes that the ordinary courts arbitrarily applied substantive law when they dismissed the appellant’s claim, i.e. when they confirmed the appellant’s status of lay off employee as of 31 January 2000, notably when the Cantonal Court and Supreme Court established that the right to claim compensation for the layoff status for the period from 1992 to 2000 was barred by the statute of limitations, which constituted a violation of the appellant’s constitutional right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention.
•    Decision on Admissibility and Merits No. AP 1981/07 of 14 October 2009, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 99/09; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The view of the County Court that the time limit for filing a motion for counter- enforcement with regards to an invoice started to run from the date of the decision on the revision-appeal to cancel a legally binding document delivered to the lawyer who represented the appellants in the proceedings concluded with a legally binding decision, regardless of the fact that the appellants filed a revision-appeal personally, which was the reason why their motion for counter-enforcement was rejected as untimely and which was the reason why the merits of their motion for exercising their rights was not considered, amounted to 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.