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

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.
•    Decision on Admissibility and Merits No. AP 2229/07 of 17 December 2009, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 23/10; procedure for enforcement/counter-enforcement, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the Supreme Court failed to give reasons as to whether unlawful evidence and to which extent, which should have been excluded in accordance with the positive law provisions, affected the lawfulness and correctness of the judgment.
•    Decision on Admissibility and Merits No. AP 3225/07 of 14 April 2010, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 95/10; unlawful evidence, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In addition to the fact that the Supreme Court created an inconsistent case-law in the same factual and legal circumstances without giving any objective reason, the Constitutional Court holds that it does not follow from the judgment of the Supreme Court that the Supreme Court, when interpreting and applying the provision of Article 143 of the Labour Law, dealt with the issue to explain the ratio legis of Article 143 of the Labour Law. In deciding the present case, the Supreme Court manifestly failed to explain why the aim of the legislator, when enacting the provision of Article 143 of the Labour Law, was to resolve the employment status of laid off employees and those whose employment status was not regulated only in respect of the period starting from the moment they addressed the employer until 5 May 2000 when the labour relationship of all laid off employees and those regarded as laid off employees was terminated ex lege if the employer did not invite them to work until that date. Furthermore, the Supreme Court, if its interpretation of the provision of Article 143 of the Labour Law was valid, did not give reasons for considering the date of 31 December 1991 as the relevant date, which the legislator enacted as the date when the persons had an employment relationship. Furthermore, the Supreme Court failed to explain the significance of Article 143 of the Labour Law to the employees who lost de facto their job after 31 December 1991 or those whose employment status was not regulated after that date due to the war conflict in both cases. Next, if Article 143 of the Labour Law could be interpreted in the manner in which the Supreme Court did it in the present case, the Supreme Court did not explain how the years of services would be bridged in order for those employees to exercise the right of retirement and not to have breaks of seven or eight years in the periods of service.
•    Decision on Admissibility and Merits No. AP 2270/07 of 14 April 2010, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 67/10; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court cannot accept the ordinary court’s arguments that the enforcement was not possible because of the organizational schema of the party subject to the enforcement, which does not provide a work position for the appellant. It is true that the organizational scheme does not provide a position of manager, which the appellant held until the unlawful dismissal. However, this means in no way that the ordinary court could conclude that the enforcement was not possible because of the organizational schema of the party subject to the enforcement and suspend the enforcement procedure, all the more so since the appellant’s employment relationship with the party subject to the enforcement was terminated unlawfully, as established in the legally binding judgment, the enforcement of which was sought by the appellant. Thus, the Constitutional Court holds that it follows from the challenged decisions that the ordinary courts arbitrarily applied the provision of Article 63(3) of the Law on Enforcement Proceedings when they suspended the procedure for enforcement of the legally binding decision.
•    Decision on Admissibility and Merits No. AP 2968/07 of 29 June 2010, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 95/10; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Curt holds that in the present case the ordinary courts established, pursuant to the relevant legal provisions, that the appellants’ claim was ill-founded, whereby they provided in the reasoning of their respective decisions clear and detailed explanations for such a conclusion which, in the opinion of the Constitutional Court, do not indicate any arbitrariness in decision-making. Within the context of the aforementioned, the Constitutional Court observes that the ordinary courts provided the assessment of their presented evidence in their respective decisions, including both evidence proposed by the appellants and evidence put forward by the defendant. Namely, the courts undisputedly established that during the period relevant for the application of Article 143 of the Labor Law the defendant did not employ other employees with the same qualifications as that of the appellants. This significantly distinguishes this case from the case no. AP 1093/07, as the defendant proved that the challenged decisions were not adopted in contravention of the provisions of Article 143 of the Labor Law. It follows from the aforementioned that the assessment of evidence in the challenged decision was neither manifestly arbitrary, nor was the evidentiary proceedings abused to the detriment of the appellants within the meaning of the right to a fair trial, nor was any sort of burden imposed upon the appellants, during the proceedings, in terms of proving their respective allegations.
•    Decision on Admissibility and Merits No. AP 2074/07 of 24 September 2010, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 48/11; establishment of employment relationship;
•    Decision on Admissibility and Merits No. AP 1589/08 of 9 February 2011, published in the Official Gazette of Bosnia and Herzegovina, 48/11; 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 concludes that there has been 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, since the Cantonal Court, at the time when dealing with the case, disregarded the strict provision of the Law on Central Bank of Bosnia and Herzegovina, which provides for the exclusive application of the convertible mark as the only legal tender in Bosnia and Herzegovina. The Cantonal Court thus did not respect the principle of fairness as the basic standard in deciding the compensation for damages due to death of a close family member.
•    Decision on Admissibility and Merits No. AP 3627/07 of 25 September 2010, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 26/11; compensation for damages, denomination, conversion, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the ordinary courts arbitrarily applied the provisions of substantive law, which determine the issue of statute of limitations on the execution of the imposed sanction, as they proceeded with the execution of the sanction although it was barred by the statute of limitations.
•    Decision on Admissibility and Merits No. AP 2402/08 of 25 March 2011, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 81/11; criminal procedure, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court holds that the fact that the appeal was filed by the prosecutor who was not in charge of responsibility for the indictment, given the relevant provisions of the Criminal Procedure Code of the Brčko District and contrary to the appellants’ allegations, does not raise in itself the issue of fairness of the proceedings within the meaning of Article 6(1) of the European Convention. Given the foregoing, the Constitutional Court holds that the appellants’ complaints of the violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention are manifestly (prima facie) ill-founded.
 
•    Decision on Admissibility and Merits No. AP 3808/08 of 12 May 2011, paragraph 19; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Bearing in mind that the ordinary courts, based on the evidence presented during the proceedings, established that the appellant had committed the criminal offence on 28 February 1998 and that such finding of facts of ordinary courts does not seem to be arbitrary, neither is arbitrary the reasoning of the courts given for such finding of facts, the Constitutional Court considers that there is no arbitrariness with respect to application of the provisions of substantive law when it comes to establishing the time of the commission of criminal offence and determination of the statute of limitation regarding criminal prosecution since 28 February 1998 was taken as a time of the commission of criminal offence and not 3 January 1998 as it was alleged by the appellant. Considering that 28 February 1998 was established as the time of commission of criminal offense by S.B. (perpetrator of the main offense), the actions of the helper, in the instant case the appellant, regardless of the fact whether they were done earlier, in terms of the time of execution, they are determined by the time of execution of the main criminal offense. Namely, the Constitutional Court considers that the Cantonal Court and Supreme Court gave sufficient and clear reasoning with regards to the established state of facts and application of the provisions of positive legal regulations. In other words, it does not follow from such reasoning that there were circumstances excluding the criminal prosecution and, particularly, the Court points out that the statute of limitation did not commence at the time when the judgment of the Supreme Court was rendered.
•    Decision on Admissibility and Merits No. AP 806/08 of 23 September 2011, paragraph 44; initiation of criminal proceedings barred by the statute of limitations; 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 holds that the Supreme Court applied the relevant provisions of the law in a manifestly arbitrary manner by concluding that the appellant’s housing right ceased to exist within the meaning of Article 16(2) of the Law on the Cessation of Application. Furthermore, the Constitutional Court holds that the Supreme Court, in taking its decision, failed to take into account the relevant provisions of the Family Law (which regulates the property relationships between the spouses) and the provisions of the Law on Housing Relations (regulating the determination of the holder of the housing right after divorce). Thus, the Constitutional Court holds that the challenged decision of the Supreme Court violated the appellant’s 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 2697/08 of 12 October 2011, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 99/11; 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 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 was violated when the Supreme Court applied the provisions of the Law on Inheritance and Law on Obligations by determining that the agreement on life care was null although it did not determine any prescribed reason for finding nullity.
•    Decision on Admissibility and Merits No. AP 3650/08 of 12 October 2011, paragraph 31; a violation of Article 6 of the European Convention and Article II(3)
(e) of the Constitution of BiH established

The right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina was violated when the Supreme Court, in deciding on the revision-appeal in a proceeding to determine the issue whether lawful rulings were taken in the disciplinary procedure, applied the positive regulations in a manifestly arbitrary manner, i.e. applied the provisions of Article 78(2) regulating the statute of limitations on disciplinary procedure instead of the provision of Article 81(4) of the Law on Labour Relationships, which provides for a time limit of 30 days within which disciplinary proceedings must be concluded.
•    Decision on Admissibility and Merits No. AP 2443/08 of 25 October 2011, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 104/11; labor dispute, violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that 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, given that the ordinary courts used the discovered narcotics as evidence in the criminal proceedings. More precisely, that was de facto the only direct evidence i.e. the incriminating evidence against the appellant, which was obtained through the arbitrary application of Article 120(3) of the Criminal Procedure Code of the RS. In the opinion of the Constitutional Court, the evidence (narcotics) in question does not have the necessary quality for the courts to base their decisions on it, as done in the instant case. Therefore, the decisions made in such a manner are arbitrary and in violation of the appellant’s right to a fair trial. In addition, the Constitutional Court concludes that 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, since it is undisputed that the competent prosecutor in the instant case did not carry out the opening and inspection of items temporarily seized from the appellant, as required by the imperative provisions of paragraphs 1 and 2 of Article 135 of the Criminal Procedure Code of the RS.
•    Decision on Admissibility and Merits No. AP 291/08 of 19 November 2011, paragraph 55; the quality of evidence, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

As the Cantonal Court did not rectify the omission of the Municipal Court and did not decide on the claim as a whole, the Constitutional Court holds that the Cantonal Court arbitrarily applied the positive regulations in the challenged judgment, both those related to the application of substantive law (Law on Obligations and Law on Amendments to the Law on the Determination and Arrangements for Settlement of Internal Obligations of the Federation of Bosnia and Herzegovina) and procedural provisions (Articles 2 and 176 of the Law on Obligations), which oblige it to deal with the claim as specified, i.e. to decide on the main claim and auxiliary claims, which was omitted by the court in the present case and which amounted to the violation of the appellant’s constitutional 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 846/09 of 23 February 2012, paragraph 42; employment-related rights, interests, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court finds that in the present case the Appellate Panel of the Court of BiH failed to apply the provision of Article 3(a) of the Law on the Cessation of Application of the Law on Abandoned Apartments that regulates the issue of repossession of the so-called military apartments of those holders of housing rights that had the status of members of either armed forces out of the territory of Bosnia and Herzegovina after 19 May 1992. The Constitutional Court reiterates that the issue of the mentioned provisions was not even raised in the Đokić judgment rendered by the European Court. In particular, the essence of the Đokić judgment was to provide for the claimant an appropriate compensation for deprivation of the right of repossession of the apartment (restitution). The Constitutional Court reiterates the view it expressed in Decision no. U 15/11, which reads that the Constitutional Court notes that under the system of the European Convention, it is for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Thus, under the system of the European Convention, the national authorities accordingly enjoy a wide margin of appreciation in determining what is in the public interest while resolving complex issues such as the issue of restitution of the so-called military apartments. The Constitutional Court holds that Article 3(a) of the Law on Cessation of Application of the Law on Abandoned Apartments is the result of such margin of appreciation and it has established in its decision no. U 83/03 that it is in accordance with Article 1 of Protocol No. 1 to the European Convention as it strikes a fair balance between the public interest and holders of occupancy right.
•    Decision on Admissibility and Merits No. AP 1527/11 of 15 May 2012, paragraph 51, published in the Official Gazette of Bosnia and Herzegovina, 56/12; the JNA (military) apartments, 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 concludes that the appellant’s 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 was not violated when the second-instance court modified the first-instance decision and dismissed the appellant’s claim for payment of meal allowance for the period after the 2000 General Collective Agreement had entered into force (8 September 2005) in accordance with the provisions of the Industry-Wide Collective Agreement as the Tuzla Canton did not conclude the 2000 Industry-Wide Collective Agreement nor did it adhere to it (the Constitutional Court’s Decision No. AP 1315/06), and the legal gap which existed in respect of the determination of the employment-related entitlements (salaries, vacation allowance, meal allowance) for the administrative and judicial employees of the Tuzla Canton was filled in when the General Collective Agreement entered into force on 8 September 2005, whereby the amounts of the mentioned entitlements were determined.
•    Decision on Admissibility and Merits No. AP 3417/08 of 15 May 2012, paragraph 71; published in the Official Gazette of Bosnia and Herzegovina, 44/12; the rights related to the employment, application of the Wide-Industry Collective Agreement and General Collective Agreement; 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 concludes that 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 was violated when the relevant courts arbitrarily applied the provisions of Articles 12 and 54 of the Civil Procedure Code in the appellant’s case by giving the interpretation that the determination of the existence of common-law marriage was to be regarded as the determination of a fact, not a legal relationship, as none of the law provisions indicated such an interpretation, but, quite the contrary, the case related to a legal relationship under the provisions of Articles 2, 213, 230 through 230, 263 and 380 of the Family Law.
•    Decision on Admissibility and Merits No. AP 2900/09 of 13 June 2012, paragraph 35; published  in the Official Gazette of Bosnia and Herzegovina, 64/12; the procedure for determination of common-law marriage; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the appellant’s 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 was violated when the Cantonal Court arbitrarily applied the Law on Minor Offences, i.e. when the Cantonal Court arbitrarily applied positive regulations as the minor offence proceedings were barred by the statute of limitations.
•    Decision on Admissibility and Merits No. AP 3317/09 of 19 July 2012, paragraph 32; published in the Official Gazette of Bosnia and Herzegovina, 79/12;
•    Decision on Admissibility and Merits No. AP 3672/09 of 13 November 2012; published in the Official Gazette of Bosnia and Herzegovina, 101/12; minor offence proceedings, statute of limitations; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

There was no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina as no arbitrary application of the Law on Housing Relations and the Law on Sale of Apartments was established, on the basis of which the ordinary courts granted the claim of the first plaintiff and the second plaintiff and dismissed the appellant’s counterclaim as there were no legal conditions to establish the nullity of the ruling on allocation of the disputed apartment, and the ordinary courts gave a reasoning concerning the essential issue in this dispute.
•    Decision on Admissibility and Merits No. AP 2283/09 of 28 September 2012, paragraph 43, published in the Official Gazette of Bosnia and Herzegovina, 93/12; there has been no Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that Article V of the Law on the Real Property Transfer Tax, which was applicable at the time of issuing the first-instance ruling, wherein the tax basis on real property - the business premises in question - was determined and the tax was calculated (29 May 2008), does not provide for the exemption from real property transfer tax in the case of “the first sale of newly constructed business premises”, but it stipulates that the real property transfer tax is not to be paid in the case of “the first sale of a newly constructed not inhabited residential building or a newly constructed apartment as a special part of the building”. The Constitutional Court notes that Article 6(1)(d) of the “new” Law on the Real Property Transfer Tax of the Zenica-Doboj Canton, which entered into force on 8 April 2009, stipulates that the real property transfer tax is not to be paid in the case of “the first sale of a newly constructed not inhabited residential building or a newly constructed apartment as a special part of the building or a newly constructed business building or newly constructed business premises as a special part of the building. Thus, the purchase of the business premises in question was not prescribed by the provisions on exemption from tax under Article 5(1) through (10) of the Law on the Real Property Transfer Tax, which was applied to the present case and which expressly prescribes the cases of exemption from the payment of real property transfer tax. According to the reasons given in the challenged judgment, the case does not relate to double taxation imposed on the appellant as the basis for the imposition of the VAT and the real property transfer tax is different and the real property transfer tax in the Zenica- Doboj Canton does not provide for exemption from that tax in case of the obligation of paying the VAT. Furthermore, the provisions of the Law on the VAT exclude in no way the application of the Real Property Transfer Tax in the Zenica-Doboj Canton.
•    Decision on Admissibility No. AP 3247/09 of 23 November 2012, paragraph 20;
•    Decision on Admissibility No. AP 3242/09 of 22 March 2013, paragraph 15; alleged double taxation, appeal manifestly (prima facie) ill-founded

The Constitutional Court concludes that 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 was violated when the ordinary courts arbitrarily applied the provisions of the Civil Procedures Code related to the compensation for the costs of the civil procedure in a situation in which the appellant withdrew the lawsuit when the defendant fulfilled his obligation after the lawsuit had been brought, which he brought because of the defendant’s delay. In particular, the ordinary courts arbitrarily applied the provisions of the Civil Procedure Code regulating the issue of compensation for the costs of the civil procedure when the plaintiff did not succeed in the case as a whole and took a decision so as to consider the beginning of the dispute as a relevant date, and not the beginning of the civil procedure, instead of applying the provisions of Article 390(1) of the Civil Procedure Code, which explicitly regulates the situation wherein the plaintiff who withdraws a lawsuit is obliged to compensate the other party’s costs of the civil procedure, unless the lawsuit was withdrawn after the defendant had fulfilled the obligation stated in the claim.
•    Decision on Admissibility and Merits No. AP 2405/09 of 13 February 2013, paragraph 39; the costs of the procedure, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the ordinary courts arbitrarily applied the procedural provisions and found the appellant guilty for a criminal offence on the basis of evidence gathered during a special investigative action – a secret informer – which could not be ordered according
to the law in respect of the specific criminal offence.
•    Decision on Admissibility and Merits No. AP 1158/10 of 28 February 2013, paragraph 55, published in the Official Gazette of Bosnia and Herzegovina, 27/13; special investigative actions - informer, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the ordinary courts, in deciding on a dispute which arose from a standard contract, applied the provisions of the General Terms and Conditions forming the constituent part of the Contract, and thus, disregarded the relevant provisions of substantive law, the application of which was neither restricted nor excluded under the General Terms and Conditions and which were crucial for the resolution of the dispute concerned.
•    Decision on Admissibility and Merits No. AP 1336/10 of 25 April 2013, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 41/13; claims based on delivered electric power; 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 County Court erroneously applied the applicable Law on Minor Offences when it terminated minor offence proceedings against a responsible person. In particular, according to the transitional provisions of the applicable Law on Minor Offences, the former Law on Minor Offences was applicable to the proceedings concerned (which the courts actually applied in the present case). The provisions of Article 68(3) of that Law stipulate that the statute of limitations on the institution and conduct of minor offence proceedings against responsible persons is assessed according to the statute of limitations on the institution of the minor offence proceedings against legal persons, if a sanction is prescribed for the same minor offence committed by the legal person. However, given the circumstances in the present case, the Court holds that the mentioned fact (the termination of the minor offence proceedings against the responsible person) cannot in itself constitute the violation of the appellant’s constitutional rights as the Constitutional Court did not find any arbitrariness in determination of facts and application of substantive law in the decisions rendered by the ordinary court which had applied the provisions of the Law on Trade and Law on Minor Offences and found that the minor offence proceedings against the appellant were barred by the statute of limitations.
•    Decision on Admissibility and Merits No. AP 1315/10 of 12 June 2013, paragraph 41; misdemeanour proceedings, 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 concludes that 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 was violated when the Appellate Panel of the Court of BiH, which decided on an appeal filed by the appellant’s defence council, modified the decision to the detriment of the appellant by affording the procedural position to the appellant, which he had had before the request had been filed, which amounted to the violation of the procedural provisions, since it examined ex officio the challenged decision in the part which was not challenged in the appeal. Therefore, it violated the mechanism of prohibition of modification of decision to a worse one (reformatio in peius).
•    Decision on Admissibility and Merits No. AP 4533/12 of 12 June 2013, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 58/13; replacement of a prison sentence with a fine; 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 Criminal Procedure Code from 1998 did not prescribe the time limit for taking a decision wherein the amount given on the basis of the bail, which failed, was to be paid to the budget of the Canton. In this connection, the Constitutional Court notes that the failure of a bail entails the termination of all rights of the person who gave a value cash on the basis of the bail. The fact entailing the failure of the bail must occur before the execution of the imposed prison sanction is barred by the statute of limitations. Otherwise, given the fact that the security given on the basis of the bail is valid until the beginning of serving the prison sentence, when such a possibility does not exist any longer, the bail has no purpose any longer so that it must be given back to the person who gave it. However, if the bail fails before the expiry of the period of limitation on the execution of the imposed sanction, the fact that the execution of the imposed sanction is barred by the statute of limitations cannot affect the right of the person who gave the value cash on the basis of the bail to request the return thereof. In this connection, the court’s decision imposing the payment of the value cash on the basis of the failed bail to the budget of the Canton and the time limit within which such a decision is to be taken are not relevant, i.e. whether such a decision is taken after the period of limitation on the execution of the imposed prison sentence expired. The Constitutional Court concludes that the appellant’s allegations that the ordinary courts arbitrarily applied law and, thus, violated 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 are unfounded.
•    Decision on Admissibility and Merits No. AP 1679/10 of 12 June 2013, paragraphs 37 and 38, published in the Official Gazette of Bosnia and Herzegovina, 57/13; criminal proceedings wherein it was decided that the appellant did not have the right of return of a cash value based on the bail as the appellant obviously avoided appearing before the court; 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 concludes that the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina was violated as the court, when taking its decision, applied the relevant provisions of the Law on the Enforcement Procedures in a manifestly arbitrary manner by issuing a ruling to impose on the enforcee an obligation other than that determined in the document on enforcement.
•    Decision on Admissibility and Merits No. AP 3144/13 of 17 September 2013, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 80/13; enforcement procedure, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the ordinary courts in the present case established the facts in a manifestly arbitrary manner and arbitrarily applied substantive law to such established facts by concluding that in the circumstances of the present case the criminal prosecution was not barred by the statute of limitations, which constituted a legal obstacle to the institution and conduct of the criminal proceedings, as the limitation period was interrupted by a procedural action, which actually did not meet the criteria prescribed by the law and which was to be taken with the purpose of criminal prosecution of committed criminal offence.
•    Decision on Admissibility and Merits No. AP 3105/12 of 22 October 2013, paragraph 74 , published in the Official Gazette of Bosnia and Herzegovina, 92/13; criminal prosecution barred by the statute of limitations, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the ordinary courts dismissed the appellant’s claim for compensation of damages caused by the failure to conclude an agreement as the appellant did not request in witting the defendant to conclude the agreement in accordance with the provisions of Article 183 of the Law on Obligations, despite the fact that the first-instance court found that the appellant sent a letter to the defendant in order to inform the defendant of the sustained damage and the amount thereof because the agreement was not concluded.
•    Decision on Admissibility and Merits No. AP 2941/10 of 22 October 2013, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 89/13; compensation for damages sustained due to the failure to engage the appellant for a job afforded to him through tender procedure; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1), (2) and (3)(d) of the European Convention was not violated when the ordinary courts, when establishing the facts and presenting evidence, notably the evidence gathered during a special investigative action
– secret informer – did not arbitrarily apply the procedural provisions.
•    Decision on Admissibility and Merits No. AP 5746/10 of 15 January 2014, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 19/14; criminal proceedings, informer, 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 concludes that 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 was violated as it follows from the reasons for the judgment that the County Court arbitrarily applied the provisions of Article 6 of the Law on Concessions (Official Gazette of the RS No. 25/02 and 91/06) and Article 3(2) and Article 43(3) of the Law on the Government of the RS.
•    Decision on Admissibility and Merits No. AP 1761/10 of 27 September 2013, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 84/13;
•    Decision on Admissibility and Merits No. AP 1757/10 of 23 January 2014, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 26/14; a decision to grant a concession quashed, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina was violated with regards to the application of procedural law as the ordinary courts, in the contentious proceedings related to the compensation for difference in salaries, exceeded the limits of its subject-matter jurisdiction and dealt with the compatibility between the Law on Income Tax and the Constitution of the FBiH, which actually falls under the jurisdiction of the Constitutional Court of the FBiH.
•    Decision on Admissibility and Merits No. AP 2840/13 of 12 February 2014, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 17/14; claims of the plaintiffs/judges of the Cantonal Court for compensation of difference in paid reduced salaries calculated after the adoption of the Law on Income Tax and the salaries paid before the adoption of that Law to the plaintiffs; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that 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 was violated when the Cantonal Court, in taking its decision, arbitrarily applied the provision of Article IV(a) of the Decision on Amendments to the Decision on the Temporary Regulation of Sale of Apartments and Article 5 of the Law on the Cessation of Application of the Law on Abandoned Apartments.
•    Decision on Admissibility and Merits No. AP 5595/10 of 12 February 2014, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 17/14; determination of the right to conclude an agreement on the use of apartment, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH) established.

As Article 5 of the Law on Salaries prescribes each year of service as a criterion for exercising the right to the years of service allowance when this regulation or any other regulation does not prescribe that the notion of years of service relates only to the years of service realized in BiH or years of service registered into employment record, or that the years of service to be recognized as the length of service for retirement in BiH or another country cannot be considered as a length of service based on which the length of service allowance is payable, the Constitutional Court holds that Cantonal Court arbitrarily interpreted and applied substantive law by concluding that the appellant did not have the right under Article 5 of the Law on Salaries as the case related to the length of service which was not realized in BiH, i.e. the length of service to be recognized as the length of service for retirement.
•    Decision on Admissibility and Merits No. AP 4771/13 of 12 March 2014, paragraph 46, published in the Official Gazette of Bosnia and Herzegovina, 30/14;
•    Decision on Admissibility and Merits No. AP 1623/13 of 8 May 2014, published in the Official Gazette of Bosnia and Herzegovina, 46/14; determination of the amount of years of service allowance, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In the opinion of the Constitutional Court, the reasoning offered by the Supreme Court regarding the application of the provision of Article 377 of the Law on Obligations is not indicative of any arbitrariness whatsoever, since the provision of Article 377 of the Law on Obligations may be applied solely to the perpetrator of a criminal offense, and not to a third person who is held responsible for the damage instead of the factual perpetrator of a criminal offense. As a result, only the provision of Article 376 of the Law on Obligations may be applied to the third person. Also, the Constitutional Court observes that the Supreme Court took a stance that conditions have not been met in the present case to establish in the respective civil procedure whether the damage was caused by actions containing elements of a criminal offense, for which, in the opinion of the Constitutional Court, the Supreme Court provided clear and precise reasons which are not indicative of arbitrariness in the application of the substantive law. In addition, the Constitutional Court observes that the appellants in the respective proceedings failed to prove that there existed a legally binding judgment of a criminal court establishing that the members of the armed forces of Republika Srpska had committed a criminal offense against humanity or international law, during perpetration of which the appellants’ close relatives had been deprived of life, which judgment would have been binding on a civil court within the meaning of the provision of Article 12 of the Law on Civil Procedure.
Therefore, taking into account the circumstances of the present case as well as the case- law of the European Court in the case of Baničević, the Constitutional Court finds that there was nothing in the present case preventing the appellants from filing their civil suit for damages within the time limit referred to in the provision of Article 376(1) and (2) of the Law on Obligations. As a result, the appellants, despite having a lawyer, had put themselves in a situation facing a risk of the expiry of the statute of limitations on their civil suit. The Constitutional Court took into account that it was not possible to apply the provision of Article 377 of the Law on Obligations in the present case, since the time limits referred to in the mentioned provision apply to the perpetrator of a criminal offense and not to third persons who may be possibly responsible for his/her actions. Further, there was no basis to establish in a civil proceeding the damage caused to the appellants through the perpetration of a criminal offense. Therefore, in the opinion of the Constitutional Court, concerning the present case and applying the statutory time limits for the statute of limitations, it cannot be said that the very statutory time limits for the statute of limitations, or the manner in which they had been applied in this case, violated the very essence of the appellants’ right to a fair trial.
•    Decision on Admissibility and Merits No. AP 4128/10 of 28 March 2014, paragraphs 43 and 44, published in the Official Gazette of Bosnia and Herzegovina, 35/14; claim for pecuniary and non-pecuniary compensation for damage dismissed upon the defendants’ objection that the claim concerned was barred by the statute of limitations; 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 holds that the ordinary courts’ findings that the plaintiff (Health Insurance Fund of the RS) could file a claim for compensation for damages only against the appellant, despite the fact that an automobile liability insurance was concluded in compliance with the obligation under the law, do not appear arbitrary and erroneous in terms of application of law, which was alleged by the appellant.
•    Decision on Admissibility and Merits No. AP 2684/10 of 28 March 2014, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 40/14; automobile liability insurance, claim of the Health Insurance Fund of the RS for compensation for damages against the appellant who caused injures to an insured person in a car accident; 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 concludes that 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 was not violated as there was nothing in the circumstances of the present case to conclude that the ordinary courts arbitrarily interpreted and applied substantive law when they concluded that the defendant’s objection concerning the statute of limitations was founded, which was the reason why they dismissed as unfounded the request of the appellant who did not present any evidence to prove that she was unable to avail herself of the available legal remedies in order to interrupt the period of limitation.
•    Decision on Admissibility and Merits No. AP 1526/10 of 10 April 201, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 40/14; statute of limitations, a war is not an insurmountable obstacle to the court protection, i.e. to bring a lawsuit, 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 notes that it was determined in the legally binding judgment of 3 September 1992 that the real property in question constituted joint owned property of the appellant and the second defendant and that the appellant was entitled to a half of that property within the meaning of Article 252 of the Family Law. Furthermore, the Constitutional Court notes that it follows from the facts established by the ordinary courts that the procedure for division of joint owned property of the appellant and the second defendant as spouses is pending. The Constitutional Court notes that the allegations of the Cantonal Court, from the aspect of the application of substantive law and its reference to the provision of Article 460 of the Law on Obligations, appear to be arbitrary, all the more so since the property relationships of spouses are regulated by the provisions of the Family Law, which is a lex specialis comparing to all other regulations governing certain situations between spouses (mutatis mutandis, Constitutional Court, Decision on Admissibility and Merits no. AP 2697/08 of 12 October 2011, available at the web page of the Constitutional Court www.ustavnisud.ba). Therefore, the Constitutional Court holds that the Cantonal Court arbitrarily applied the relevant provisions of the Law on Obligations and failed to take into account the provisions of the Family Law as a lex specialis in the present case by concluding that the appellant as a third person was not authorized – did not have the right of action to request the cancellation of the purchase and sales contract concluded with the defendant within the meaning of the provisions of Article 460 of the Law on Obligations, although she possibly claimed the ownership right of a sold thing.
•    Decision on Admissibility and Merits No. AP 3948/10 of 10 April 2014, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 43/14; matrimonial property, cancellation of the sales and purchase contract, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention and 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 were not violated as the ordinary courts, when deciding on the appellant’s lawsuit, acted in accordance with the relevant provisions of the Civil Procedure Code by declining competence and rejecting the lawsuit, and by giving clear and detailed reasons for considering that the appellant could claim his right by filing a request to initiate administrative proceedings, not ordinary court proceedings, in accordance with the law arrangements and obligations of prescribed by the Civil Procedure Code.
•    Decision on Admissibility and Merits No. AP 1245/11 of 8 May 2014, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 46/14; refund of prepaid tax, 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 concludes that the right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was not violated as there was nothing in the present case to lead to the conclusion that the facts were incompletely and erroneously established and that the ordinary courts arbitrarily or erroneously applied substantive law when they concluded that the appellant’s claim for compensation for non-pecuniary damage sustained due to the destroyed possibility of developing and progressing was ill-founded as the appellant failed to present evidence to prove that he would have actually found an employment in the normal course of event or special circumstances.
•    Decision on Admissibility and Merits No. AP 2303/11 of 8 May 2014, paragraph 41, published in the Official Gazetteof Bosniaand Herzegovina, 56/14; compensation for pecuniary damage due to the destroyed possibility of developing and progressing; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was violated when the ordinary courts based the judgment of conviction on the verbal order, which did not satisfy the requirements under Article 120(3) of the Criminal Procedure Code of the Republika Srpska, in respect of which the appellant’s grandfather surrendered the narcotic which was used as a piece of evidence and which was the basis for rendering the judgment of conviction of the appellant, together with the pieces of evidence obtained through the surveillance of the appellant’s telecommunications as they had recourse to “incidental findings”, whereas the criminal offence in question did not fall under the category of the criminal offences referred to in Article 227 of the Criminal Procedure Code of the Republika Srpska so that they could not be used as evidence/information gathered by taking special investigative actions.
•    Decision on Admissibility and Merits No. AP 2400/11 of 8 May 2014, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 79/14; special investigative actions, unlawful evidence, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution established

The Constitutional Court concludes that the Supreme Court arbitrarily applied substantive law, i.e. Article 6(2) of the Law on the Protection against Defamation when it dismissed the appellant’s claim by finding that the defendant did not have standing to be sued, since the statement he made was published in newspapers, which constituted a violation of the appellant’s 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 5582/10 of 29 May 2014, paragraph 43, published in the Official Gazette of Bosnia and Herzegovina, 61/14; standing to be sued, compensation for damages caused by defamation, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution established

The Constitutional Court notes that there are different theories in respect of the time constraints of the validity of constitutional court’s decisions (ex nunc – from now on) or (ex tunc – from the outset) but that the Constitutional Court’s task in the present case is not to choose one of those theories. Therefore, the Constitutional Court will take the view, in the context of positive law regulations, with regards to the Supreme Court’s opinion on the validity of the decision of the Constitutional Court of the Federation of BiH. In this connection, the Constitutional Court considers as indisputable that the domestic regulations on the validity of laws and by-laws is bound by the date on which they are published in the official gazettes. In the present case, the Law on the Procedure before the Constitutional Court is extremely clear. The provisions of Articles 40 and 41 of the aforementioned Law stipulate that laws or regulations, which the Constitutional Court of the Federation considers as unconstitutional, will not be applicable from the date when the judgment of the Constitutional Court is published in the Official Gazette of the Federation of BiH. Given the foregoing, the Constitutional Court holds that the Supreme Court’s view that the decision of the Constitutional Court of the Federation does not have a retrospective effect cannot be considered arbitrary.
•    Decision on Admissibility and Merits No. AP 3519/11 of 4 July 2014, paragraph 56, published in the Official Gazette of Bosnia and Herzegovina, 71/14; employment- related rights; collective agreement on the right and obligations of employers and employees in the field of health protection, time constraints in relation to the validity of court decisions

The Constitutional Court notes that the Supreme Court emphasized that pre-contract agreements were not binding upon the Municipality as it was not a party to the agreement. It was noted that a contractual relationship between two persons did not mean that such a relationship was extended to the contractual relationship between one of those persons with a third person. In particular, the Supreme Court pointed to the provisions of Article 148 of the Law on Obligations. Those provisions prescribe that the contract creates rights and obligations of the contractual parties (para 1), that the contract has effects on the universal legal successor of the contractual parties, unless otherwise agreed or unless something else derives from the agreement itself (para 2) and that the contract may provide a right in favour of a third person (para 3). Given the fact that it was determined in the ordinary proceedings that the Municipality was not a contractual party to the pre-contract agreements in question, nor was a right in its favour established in those agreements, the Constitutional Court does not find that the Supreme Court arbitrarily applied substantive law when it dismissed the counter-claim filed by the appellant and her husband against the Municipality by referring to the provisions of Article 148 of the Law on Obligations taking into account the fact that the Supreme Court applied Article 148 of the Law on Obligations to the factual findings of the first-instance court and gave clear reasons for its decision, the Constitutional Court does not find anything which would indicate arbitrary conduct of the Supreme Court in applying the mentioned law provisions to the present case.
•    Decision on Admissibility and Merits No. AP 1942/11 of 17 July 2014, paragraph 56, published in the Official Gazette of Bosnia and Herzegovina, 71/14; payment of debt - the amount of the purchase price which the appellants paid to the plaintiff based on the pre-contract agreements in question, there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was not violated when the ordinary courts established that the pre-contract agreement and annex to the pre-contract agreement on the purchase of real property was null as it was not concluded in accordance with the provisions of Article 9 of the Law on Real Property Transfer and Article 45 of the Law on Obligations and as the courts obliged the appellant to return what he received to the plaintiff based on such an agreement and as the lawsuit had been amended before the conclusion of the preliminary hearing in accordance with Article 57(1) of the Civil Procedure Code.
•    Decision on Admissibility and Merits No. AP 4161/11 of 17 July 2014, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 71/14; return of the amount which was allegedly given on the basis of earnest payment; 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 concludes that the appellant’s right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was violated as the court, in taking its decision, arbitrarily applied the relevant provisions of the Law on Obligations that related to the conditions under which a guarantor was accountable for the fulfilment of the obligations instead of the main debtor and the scope of the obligations based on the guarantee in that case.
•    Decision on Admissibility and Merits No. AP 501/13 of 17 July 2014, paragraph 45, published in the Official Gazette of Bosnia and Herzegovina, 71/14; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that the appellant’s right a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention was not violated when the ordinary courts, based on the facts established in the proceedings, which were not brought into question, took decisions to dismiss the appellant’s claim for compensation for damages in accordance with the relevant provisions of the Law on Obligations on the Law on Privatization of Companies and the Law on Initial Balance Sheet of Companies and Banks.
 
•    Decision on Admissibility and Merits No. AP 1591/11 of 17 July 2014, paragraph 34, published in the Official Gazetteof Bosniaand Herzegovina, 71/14; compensation for damages sustained by the purchase of shares; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH