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
