Fair trial – reasoned judgment - part II

The Constitutional Court notes that the Cantonal Court, having accepted the Municipal Court’s findings that the present case related to an unnamed agreement and that the real will and the goal of the contractual parties were to regulate their rights and obligations in that agreement with the aim of jointly participating in a public tender for the purchase of the shares of the “Bihać Brewery”, gave clear reasons for concluding that the mentioned agreement, the execution of which was sought by the plaintiffs, was valid and that it was not contrary to the Law on Securities, Law on Business Entities and other regulations; in this connection, it citied the provisions of Articles 10 and 40 of the Law on Securities and Article 210(1) of Business Entities. Furthermore, the Constitutional Court notes that Article 10 of the Law on Securities stipulates that the ownership of securities shall be acquired on the day of conclusion of legal business whereby the transfer of ownership of securities has been carried out, and that Article 40 of the same law stipulates that purchasing, selling or pledging securities shall be carried out on the basis of an agreement in writing, and Article 210(1) of the Law on Business Entities stipulates that a shareholder is entitled to sell his/her shares or to transfer them to another person on another basis. Furthermore, the Constitutional Court notes that the Cantonal Court gave sufficient reasons in its judgment for concluding that the agreement with regards to the transfer of shares, within the meaning of Article 78 of the Law on Obligations, started to be in effect from the time referred to in Article 10 of that agreement and the plaintiffs as foreign investors could not register foreign investments at the relevant authority before the appellant fulfilled his obligation under Article 10 of the agreement, i.e. before a valid document on the transfer of a number of shares was issued to them, which the appellant did not fulfil, although he acquired the shares of the “Bihać Brewery” in the process of privatization. Furthermore, the Constitutional Court notes that in the contested judgment the Supreme Court, unlike the appellant’s allegations, gave responses to all those allegations set forth in the revision-appeal of the appellant that it considered as relevant to the decision in the present case. In this connection, the Constitutional Court also notes that the Supreme Court explained that the Cantonal Court, unlike the appellant’s allegations, had acted in compliance with the instructions given in the ruling of annulment, that it had examined the first-instance judgment by correctly applying procedural law and had assessed all complaints which were relevant to the correct decision, that it had correctly concluded that the agreement had all characteristics of a partnership agreement which it interpreted by correctly applying the provisions of Article 99 of the Law on Obligations, that it had correctly established that it was legally valid and that the appellant had failed to fulfil his obligation of handing over the shares to the plaintiffs. The Constitutional Court holds that the Supreme Court gave valid, clear and logical reasons for its decision as required by Article 6(1) of the European Convention.
•    Decision on Admissibility and Merits No. AP 1853/11 of 10 June 2014, paragraph 34; fulfilment of obligations under the agreement, transfer of shares, there has been no violation of Article 6 the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court notes in respect of the reasons given by the Appellate Panel that the mentioned Panel did not claim that the Criminal Code was more lenient for the appellant given the minimum sanction prescribed by the law. In particular, the Constitutional Court observes that the Appellate Panel, having compared the Criminal Code of the SFRY and Criminal Code of BiH from the aspect of the minimum sanction prescribed by the law, established that the Criminal Code of BiH was not more lenient for the appellant. However, the Constitutional Court observes that in the present case the Appellate Panel decided to apply the Criminal Code of BiH in order to avoid combining the former law and the new law and found that the appellant was not in less favorable position in that manner as the 10-year prison sentence could be imposed both in accordance with the former law and the new law. With regards to the given reasons, the Constitutional Court reminds of the provisions of Article 4(2) of the Criminal Code of BiH, which obliges the Court of BiH to apply the law which is more lenient for the perpetrator when taking a decision so that the reasons given by the Appellate Panel do not essentially correspond to the cited provision. Taking into account the cited Article, the Constitutional Court holds that Appellate Panel, when applying substantive law, should have explicitly established which law was more lenient for the appellant from the aspect of the minimum sanctions prescribed by the law and relevant provisions related to the concurrence of offences, and then, applied more lenient law. The Constitutional Court notes that the Appellate Court did not have such an approach, and the reasons given in respect of application of substantive law under Article 175(a) and (b) of the Criminal Code of BiH do not meet the requirements under Article 6(1) of the European Convention. The Constitutional Court concludes that in the circumstances of the present case the Appellate Panel gave arbitrary reasons with regards to the application of Article 175 of the Criminal Code of BiH to the appellant’s actions which were classified as the war crime committed against prisoners of war so 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.
•    Decision on Admissibility and Merits No.  AP 3280/13 of 7 October 2014, paragraphs 58 and 59, published in the Official Gazette of Bosnia and Herzegovina, 92/14; criminal proceedings, war crime, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitution 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 as the reasoning for the contested judgment, which was a final decision on the perpetration of a criminal offence and criminal accountability, does not contain the reasons from which it would have followed that responses to the essential issues raised in the appeal were given with regards to the conclusion on the existence of the criminal offence and criminal accountability.
•    Decision on Admissibility and Merits No. AP 3623/13 of 7 October 2014, paragraph 104, published in the Official Gazette of Bosnia and Herzegovina, 89/14; criminal proceedings, 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 clear and unambiguous reasons for considering that the Cantonal Court had arbitrarily applied substantive law in the situation where disputable facts were partially proved by the appellant (recruitment of employee) and partially they proved to be indisputable (the manner of recruitment) in conjunction with the provision of Article 143(8) of the Labour Law which was the basis of the appellant’s claim.
•    Decision on Admissibility and Merits No. AP 4566/11 of 21 October 2014, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 93/14; the Constitutional Court decided on the merits of the claim in the present case, since the Cantonal Court rendered a judgment, which was clear, precise and supported by arguments in respect of the application of the provision of Article 143(8) of the Labour Law and the reasons thereof meet the requirements under Article 6(1) of the European Convention, which was the reason why it remained in force - a labour dispute lasted more than 14 years); a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitution Court concludes that 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 and the 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 violated as the ordinary court failed to give the reasons in the contested judgment in respect of the real place of residence of the defendants and as it failed to examine to which extent the connection of the defendants with the premises in question was strong and permanent and whether the defendants established their residence in another place, as prescribed by the standards of the right to a fair trial under Article 6 of the European Convention, which was the reason why it could not be concluded whether the interference with the appellants’ right to property was lawful, whether the disputable joint premises constituted the defendants’ home and which of the two rights “prevailed” within the meaning of the provisions of the European Convention.
•    Decision on Admissibility and Merits No. AP 2453/11 of 6 November 2014, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 93/14; the appellants’ claim for repossession of the joint premises which were used by the defendants based on the facilities use agreement which was concluded between the appellants as holders of condominium ownership of the premises in question and defendants; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitution Court concludes that the Supreme Court, in its contested decision, dismissed the appellant’s claim whereby it sought the court to establish his portion of co-ownership of the part of the State capital of the first-defendant and, in this respect, the right to be registered as owner of the mentioned capital. Furthermore, the Constitutional Court notes that the Supreme Court gave detailed reasons for finding that the appellant’s claim was unfounded. The Constitutional Court holds that the appellant’s allegations on the arbitrariness in application of substantive law are unacceptable as the appellant did not present any argument in support of those allegations. The Constitutional Court holds that the Supreme Court gave detailed reasons with regards to the relevant provisions being the basis for its decision, which cannot be considered as arbitrary or contrary to the right to a reasoned decision under Article 6(1) of the European Convention.
•    Decision on Admissibility and Merits No. AP 3821/11 of 18 November 2014, paragraph 27; privatization of the State capital; there has been no violation of Article 6 the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court notes that the Appellate court did not deal with the appellant’s complaints which were of crucial importance in the present case. It notably points to the appellant’s claims that the Receipt Note was signed by the person not known to the appellant. On the other side, the appellate court generally concluded that “the appellant properly received the warrant”. According to the Constitutional Court, the question to know whether someone received a document properly or whether someone received a document at all is of particular importance for the fairness of the proceedings as a whole and such issues may be the basis for complaint under Article 68(1)(a) of the Law on Minor Offences (serious violation of the proceedings), which is to be considered by the appellate court. Given the foregoing and taking into account the case-law of the European Court, the appellate court failed to deal with the complaints which were of crucial importance for the appellant. This resulted in the fact that the reasons for the contested judgment of the appellate court did not satisfy the standards related to the reasoned judgment within the meaning of the right to a fair trial under Article II(3) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention.
•    Decision on Admissibility and Merits No. AP 4839/11 of 18 November 2014, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, no. 101/14; delivery, minor offence warrant, a violation of Article 6 the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court thus observes that both ordinary courts in fact dismissed the appellant’s claim on several grounds, thereby failing to provide for either of them a clear and logical reasoning. Thus, in the end, it remained unclear as to what the reasons were for which the appellant’s claim was dismissed, whether because of the fact that the appellant was not a member of a family household of his grandfather and grandmother within the meaning of Article 6 of the Law on Housing Relations and accordingly whether given the degree of kinship only the community of life mattered or economic community of 10 years was required, or because the appellant had no legal interest for establishment, or because he was not an unlawful user of the respective apartment within the meaning of Article 30 of the Law on Housing Relations, or because the defendant had no standing to be sued. Based on the aforementioned, it follows that neither the Municipal nor the Cantonal Courts fulfilled their respective obligations in an appellate proceeding to state clear reasons on which they based their decision that the appellant’s claim was ill-founded, that is to say that the challenged decisions did not contain the reasoning meeting the requirements referred to in Article 6(1) of the European Convention, which leads to arbitrariness, which is incompatible with the goal and essence of the mentioned right, which is the reason why the Constitutional Court cannot examine whether the ordinary courts had applied correctly the substantive law in the challenged decisions. However, bearing in mind the positions alleged in this decision that the Constitutional Court would not substitute the ordinary courts’ assessment of facts and the application of the substantive law, the Constitutional Court will not go examine the manner in which the ordinary courts should interpret the provisions of the Law on Housing Relations, the Law on the Sale of Apartments with Occupancy Right and the Law on Civil Procedure, since that falls within the jurisdiction of the ordinary courts and not the Constitutional Court.
•    Decision on Admissibility and Merits No. AP 712/12 of 21 July 2015, paragraphs 35 and 36, published in the Official Gazette of Bosnia and Herzegovina, 69/15; occupancy right, member of a family household; 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 as the reasons for the contested decisions with regards to the mandatory application of more lenient law are reduced to the comparison between the Criminal Code of BiH and Criminal Code of the SFRY, more particularly to the question which of the two laws prescribes more severe sanction for the perpetrator (the appellant) as the main argument was that the Criminal Code of SFRY prescribes death penalty (as well) in case of the offence in question. None of the Panels of the Court of BiH that dealt with the case in question gave reasons with regards to the question which of the two laws prescribes more lenient penalty in case of perpetration of the criminal offence of war crime against civilians. According to the Constitutional Court, this should have been done given the tendency of the Court of BiH of imposing more lenient sanction on the appellant (given the fact that the imposed sanction was below the minimum penalty prescribed by the law) so that this was the reason why Article 173 of the Criminal Code of BiH and Article 142 of the Criminal Code of the SFRY should have been compared, i.e. the reasons with regards to which of the two laws prescribes (i) more lenient penalty for the appellant should have been given and then the court should have decided which of the two laws was more lenient from the aspect of the minimum penalty prescribed by the law and then, accordingly, should have applied more lenient law.
•    Decision on Admissibility and Merits No. AP 3312/12 of 27 November 2015, paragraph 80, published in the Official Gazette of Bosnia and Herzegovina, 4/16; criminal proceedings, application of more lenient law; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court firstly notes that the allegations in the appeal are actually the same as those given in the appeal and revision appeal, and that the Municipal Court, the Cantonal Court and the Supreme Court gave answers these allegations in their decisions. In addition, in view of the above, the Constitutional Court notes that the courts in the three instances considered in detail all the issues reiterated by the appellant in the appeal, and that they gave clear and valid reasoning as to why the appellant’s allegations that his copyright had been infringed in the specific case could not be accepted. In the case at hand, the Constitutional Court notes that it ensues from the documentation submitted that the relevant dispute arose because the defendant, as the owner of “Unis” skyscraper, during the reconstruction and rehabilitation of the building and the selection of glass for a glass coating of the skyscraper, selected and installed “super silver green” glass, without the appellant’s consent. Namely, the Constitutional Court notes that it ensues from the impugned decisions that in the present case it was essential to establish whether Unitic, as the owner of the architectural work, altered the design without the appellant’s consent, i.e. without the consent of the author of the work. In this connection, the ordinary courts established that it followed from the evidence adduced that the appellant had been a consultant in a consulting team engaged in the reconstruction and rehabilitation of the glass coating (façade) and he participated in the selection of glass although, in this case, the final decision on the selection of glass had been made by the defendant as the owner of the building. Furthermore, the Constitutional Court notes that the ordinary courts found that the current tint of glass did not match the tint of glass that used to coat the facade of the building prior to its damage. However, it was undisputed in the proceedings that this type of glass was no longer manufactured, so the defendant, as the owner of the building, did not accept the installation of glass by the appellant’s choice, given that the consulting team did not even consider that possibility because it was a type of glass that was significantly more expensive than shortlisted glass and especially of the type of glass selected by the defendant. It was pointed out that the appellant and Unis Engineering had proposed four façade colours and, given that no agreement was reached as to the choice of glass, the plaintiff decided to install “super silver green” glass. The ordinary courts concluded that, given the fact that the building in question was substantially damaged during the war and, in particular, that the glass part of the façade was destroyed and that the plaintiff had to invest considerable financial resources for the rehabilitation and reconstruction of the building, and that after the rehabilitation the building was put into operation, and it was possible to carry out activities and to employ many workers as well as to perform other economic activities, and as is generally known, that the appellant did not prove that the defendant, through his actions, caused damages to the appellant (…) In the opinion of the Constitutional Court, the ordinary courts provided a clear and precise reasoning for their conclusions and, consequently, the appellant’s claim, where it was requested that it be established that the defendant acted in violation of the appellant’s copyright, had to be rejected.
•    Decision on Admissibility and Merits No. AP 1838/13 of 10 November 2016, paragraphs 47 and 48, published in the Official Gazette of Bosnia and Herzegovina, 93/16; civil proceedingsfor“infringementofcopyrightandcompensationfordamage”, there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH in respect of the application of law and the establishment of facts.

The Constitutional Court concludes that the appellants’ 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 was violated in the case where the courts, upon the complaint about the misuse of the rights of participants to the proceedings and upon calling the court to prevent it along with concrete remarks, failed to give a minimum of reasons in their decisions.
•    Decision on Admissibility and Merits No. AP 1154/14 of 11 January 2017, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 12/17; enforcement proceedings, loss of the appellants’ rights, among other things, due to the fact that the sale of real estate in the enforcement procedure is prevented by participation of a person whose abuse was not hindered by the court; a violation of Article 6 of the European Convention and II(3)(e) of the BiH Constitution.

The Constitutional Court considers that the reasoning of the disputed first-instance judgment, adopted by the Municipal Court, satisfies the standards of the right to a fair trial under Article 6, paragraph 1 of the European Convention. Given that there is no failure on the part of the Municipal Court to give reasons for its decision, the Constitutional Court considers that the reasoning for the challenged decision of the Cantonal Court, which substantially only confirms the factual situation and the legal understanding of the first-instance court without detailed explanation of the appellant’s allegations, does not call, per se, into question the fairness of the proceeding considered as a whole.
•    Decision on Admissibility and Merits No. AP 4779/14 of 10 May 2017, paragraph 40; civil proceeding, suspension of the delivery of electricity due to unsettled debt; there is no violation of Article 6 of the European Convention and II(3)(e) of the BiH Constitution

In the circumstances of the particular case, in dismissing claims relating to the compensation for damages based on the provisions of Article 172, paragraph 1 of the Law on Obligations, which prescribes that a legal entity shall be held liable for the damage caused to a third party by its authority in the course of the exercise of or in connection with the performance of its functions, the ordinary courts noted that a particular provision, as the basis of liability for damage, can be applied only in a situation where the body of a legal entity (defendant) has acted illegally and incorrectly in relation to the third party (appellants) and thus caused him/her harm. In the circumstances of the particular case, as clearly stated in the challenged judgments, it would mean that the improper work of the court violated the rights of the appellants and that is in contravention to the general legal principles and rules of the profession. In the specific case it does not follow from the results of the evidentiary procedure nor did the appellants prove that such or similar circumstances exist. On the contrary, it follows that the courts have carried out the eviction based on judicial judgments (exchange of real properties) and legally binding judicial ruling on enforcement. (A procedure in this specific case was initiated by the appellants claiming that the defendant, due to incorrect and unlawful decision rendered in the preliminary proceeding (for the purpose of annulment of the real estate exchange contract, wherein they were placed in a position of the defendant and, at some later point, in a position of the enforcement debtor) should make compensation for the damage caused by the enforcement of that decision).
•    Decision on Admissibility and Merits No. AP 717/15 of 11 October 2017, paragraph 29; exchange of real estate, compensation for damages; there is no violation of Article 6 of the European Convention and II(3)(e) of the Constitution of BiH

There is no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6, paragraph 1 of the European Convention in a situation where ordinary courts gave detailed and clear reasons for the decisions granting the plaintiff’s claim that the appellant, based on the debt earned after the correction of the expenditure of the electricity for the period stated in the claim, should pay a certain amount of money, while referring to the relevant regulations of substantive and procedural law, and where the Constitutional Court does not consider such reasons arbitrary.
•    Decision on Admissibility and Merits No. AP 2297/15 of 6 December 2017, paragraphs 40 and 41; among the parties to the proceeding there is no dispute that in the present case, due to an error in the installation of the measuring device, the actually consumed electricity was mistakenly recorded by the appellant during the claimed period. However, the issue arises as to whether the appellant, as a consumer, due to erroneous measurement of electricity, is obliged to pay the debt to the plaintiff for the claimed period in terms of the relevant provisions of the Law on Obligations. Alternatively, there is also a question whether the plaintiff had the right to subsequently calculate the electricity consumption while complying with the relevant provisions of the General Conditions for Delivery and Electricity Supply; Law on Consumers’ Protection; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of Bosnia and Herzegovina.

In the present case, the Constitutional Court recalls that, by virtue of Article 212 (3) of the FBiH CPC, the first instance court, in its judgment, issued an order to make compensation for damage caused to the injured party to the amount of BAM 590.00. Furthermore, it is clear from the content of the appeal that the appellants have appealed against the first instance judgment. They also challenged the first instance judgment in the part of the decision on the property claim of the injured party, showing that that part of the first instance judgment is arbitrary and is based on the arbitrary application of substantive law. In deciding the appeal, the Cantonal Court partially upheld the appeal and modified the first-instance judgment with respect to the decision on the criminal sanction, and in paragraph 2 of the operative part, the appellants were obliged, inter alia, to pay the injured party damages to the amount of BAM 590.00. Therefore, the Constitutional Court notes that, although such dispositive is contained in the operative part of the first instance judgment, the Constitutional Court ordered, in paragraph two of the operative part of the decision, the appellants to compensate the injured party to the amount of BAM 590.00.
However, in the reasoning of the ruling, the Cantonal Court did not state any reasons indicating that it had considered the appellants’ claims regarding the decision obliging them to compensate the injured party, that is, the ruling contains nothing from which it could be concluded that it dealt with the substantive issues which were submitted to this court for adjudication. Therefore, the Cantonal Court did not present its opinion about the findings of the Municipal Court regarding the decision to order the appellants to make payment for damages (neither did it uphold the judgment nor modify it). In addition, as regards the decision’s enacting part ordering the appellants to pay damages, the Cantonal Court did not state the reasons why it considered, in this particular case, that the data of the criminal proceedings provided a reliable basis for the full or partial adjudication on the property claim of the injured party (Article 212 (3) of the CPC of F BiH). In view of the above, the Constitutional Court considers that the reasoning of the part of the challenged decision related to the property claim does not satisfy the criteria of the “reasoned decision” that are inherent in the principle of a fair trial.
•    Decision on Admissibility and Merits No. AP 2752/16 of 17 January 2018, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 12/18; criminal procedure, Decision on Property Claim; violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention in a situation where the appellant’s claim is rejected with clear and substantiated reasons, from which it substantially follows that she was, at the time of the conclusion of the contract, informed about all the essential elements of the contract, including the currency clause in a clear and understandable manner, and that the contract with the defendant was concluded by mutual consent of the parties.
•    Decision on Admissibility and Merits No. AP 5328/15 of 13 March 2018, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 21/18;
•    Decision on Admissibility and Merits No. AP 3877/17 of 17 July 2019, published in the Official Gazette of Bosnia and Herzegovina, 53/19; the issue of nullity of the loan agreement concluded, wherein the currency used was the Swiss francs (CHF); no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH and Article II(3) of the BiH Constitution and Article 1 of Protocol No. 1 to the Convention

Considering the content and meaning of the enforcement proceeding’s basic principles, the provisions of the Law on Enforcement and CPC, which are subsidiarily applied in the enforcement proceeding, including the provisions on the powers of the attorney (lawyer) in the enforcement proceeding, the Constitutional Court considers that the reasoning and views of the Cantonal Court and Municipal Court are arbitrary. Therefore, it follows that the explicit appellant’s power of attorney issued to his proxy to take over, instead of him, the claim against the enforcement debtor through his sub-account (which was established in the civil proceedings), constitutes a reason for which the enforcement within the meaning of Article 47 (9) of the Law on Enforcement Procedure is prevented. Namely, it is clear from Article 36, paragraph 1 of the Law on Enforcement Procedure that the essential elements of enforcement claim are: an enforceable or credible document based on which enforcement is sought, the party seeking enforcement, the party subject to enforcement, the claim sought to be settled, the means by which the enforcement is to be carried out, the subject of the enforcement, if known, as well as other information required to carry out the enforcement. Considering the fact that the said provision failed to specify the manner-modality of enforcement as an essential element of the enforcement claim, the Constitutional Court considers that in the challenged rulings the said provision was incorrectly brought into context with Article 47, paragraph 9 of the Law on Enforcement and the reasons which prevent the enforcement if, on the basis of a fact that occurred at the time when the debtor could no longer present it in the procedure from which the decision originates, or if, on the basis of the fact that arose after the conclusion of the judicial or administrative settlement, the claim fulfilment was permanently delayed or for a certain period of time, or prohibited, modified or otherwise impeded. It follows that, in the challenged decisions, the courts explicitly defined the power of attorney of the proxy to take clearly defined actions as an omission and as a deficiency that prevented the enforcement debtor from fulfilling his obligation towards the appellant. From this point of view, the Constitutional Court considers that by such acting, apart from the principle of disposition, the principle of protecting the interests of the parties to the enforcement proceeding was completely neglected - the interests of the appellant were neglected (whereby the modality of enforcement in no way jeopardizes the interests of the party seeking enforcement), including the principle of efficiency. The above was for the purpose of effective settlement of the claims determined in the enforceable document. In doing so, the Constitutional Court considers that, within the meaning of protection of the interests of the parties to the proceeding, the mentioned modality of enforcement in no way jeopardizes the protection of interest of the enforcement debtor, who is undisputedly obliged, as stated in the instrument permitting enforcement, to pay the sum of money required in the enforcement proceeding.
•    Decision on Admissibility and Merits No. AP 2344/18 of 6 June 2018, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 45/18; enforcement proceedings, payment of claims on the account of proxy; violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court notes that the Law on Notaries of the Federation of BiH entered into force on 28 September 2002, which, as stipulated in Article 135 of that Law, commenced to be applied on 28 March 2004. In Article 73 of the said Law, legal tasks are listed requiring notarial processing for their legal validity. However, the Constitutional Court notes that it does not follow from the content of the said provision that this provision also covers a lifetime support contract. In this connection, the Constitutional Court notes that the appellant in his appeal against the first instance decision claimed that it was a legally valid contract, but it does not follow from the reasoning of the disputed decisions that the Cantonal Court substantially considered these appellants’ allegations, that is, it based its decision solely on the allegation that the contract would be eligible if notarized by a Notary in BiH without invoking any provision of domestic substantive law. Bearing in mind that the Cantonal Court did not state, at all, the substantive law provisions on which it based its decision, and the fact that, as the appellant states, at the time of the conclusion of the said contract on 9 December 2002, the notary service in BiH was not established at all, the Constitutional Court considers that due to such acting of the regular court, i.e lack of reasons regarding application of the substantive law, it remains extremely unclear for what reasons and on the basis of which provisions of substantive or procedural law the appellant’s request for registration of ownership of the real property was actually dismissed.
•    Decision on Admissibility and Merits No. AP 759/16 of 6 June 2018, paragraphs 42 and 43, published in the Official Gazette of Bosnia and Herzegovina, 45/18; registration of rights to immovable  property acquired under a lifetime  support contract certified in the Republic of Croatia; violation of Article 6 of the European Convention and Article II / 3 (e) of the Constitution of BiH

The Constitutional Court recalls that the disputed provision of Article 74, paragraph 1 of the Bankruptcy Procedure Code (as cited above) states: “After opening bankruptcy proceedings, the bankruptcy administrator must terminate the employment relationship with the employee of the bankruptcy debtor within 60 days”. In this regard, the Constitutional Court notes that in the challenged judgment the Supreme Court interpreted this provision in such a way that it did not set a time limit for the bankruptcy administrator within which it must issue notice on termination of employment contract (it is only obliged that the notice on termination “must” be in writing), and that the 60-day time limit is limited throughout the duration of the bankruptcy proceedings and is linked to determining the cessation of the need for work of employees. In this connection, the Constitutional Court recalls the need for ordinary courts to interpret, in the course of their work, legal provisions that are not explicit or may lead to different conclusions if the decision in the case at hand depends on them. It is because the provision of Article 8 of the Bankruptcy Procedure Code prescribes that in the bankruptcy proceedings the provisions of the CPC are applied accordingly, unless otherwise stipulated by this or any other law. According to Article 2, para 3 of the CPC, it is prescribed that the court applies the substantive law according to its own judgment and is not bound by the allegations of the parties to the proceeding relating to the substantive law. In the present case, the Supreme Court interpreted the disputed provision, and that interpretation was different from the interpretation of the lower instance courts and the Court reached a different conclusion as to the merits of the case. In doing so, the Supreme Court provided substantiated and clear reasons for its conclusion and interpretation that do not appear arbitrary. In view of the above, and since in the present case the appellants, apart from dissatisfaction with the outcome of the particular dispute, offer no other reasons or arguments to suggest that the Supreme Court acted arbitrarily, the Constitutional Court considers these appellants’ allegations to be unfounded.
•    Decision on Admissibility and Merits No. AP 2075/16 of 19 June 2018, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 49/18;termination of employment, bankruptcy proceedings, time limits; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court considers that the views contained in Constitutional Court’s Decision No. AP 176/18 of 23 April 2018 are entirely relevant to the specific case. Namely, the Constitutional Court notes that it follows from the reasoning of the disputed decisions which granted entry of ownership rights with 100% ownership on the real estate in question in favour of the Municipality of Čitluk, that in the specific case, the decision of the Municipal Council of the Municipality of Čitluk on the determination of state-owned construction land was the basis for determination of the state-owned construction land, and that in the decision the Land Registry Office was instructed to enter in the land registers the right of ownership over the real estate in question in favour of the Municipality of Čitluk, […], with full ownership. Furthermore, the Constitutional Court notes that it does not follow from the content of the disputed decisions, within the meaning of the paragraphs of Decision AP-176/18, that it has been established at all that the conditions for registration under Article 42 paragraphs 2 and 3 of the Land Registry Law were met. Furthermore, the Constitutional Court finds that, in the circumstances of the particular case, the relevant provisions of the Law on Construction Land also determined the actions of the Municipality of Čitluk. The Constitutional Court also finds that the aforementioned legal provisions, as well as other provisions referred to by the Municipal Council in the Decision of 31 March 2016, as well as the ordinary courts in the challenged decisions, do not imply the authority of the Municipal Council or the Municipality to enter the ownership right on urban or other construction land in favour of the Municipality of Čitluk based on the decision on determining the urban and other construction land. In doing so, the Constitutional Court reiterates that Article 15 of the Law on Construction Land provides as follows: “The decision on the determination of urban construction land shall not change the form of ownership of the land designated as urban construction land.” Therefore, the Constitutional Court considers that the reasoning of the decisions challenged in these proceedings does not meet the standards of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina, and that it is based on arbitrary application of substantive law within the meaning of the paragraphs of Decision AP 176/18, that is, application of the provisions of Article 42 and 43 of the Law on Land Registry in conjunction with the provisions of the Law on Construction Land. Therefore, the Constitutional Court finds that the challenged decisions, due to the arbitrary application of substantive law, violated the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina.
•    Decision on Admissibility and Merits No. AP 3316/17 of 13 February 2019, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 16/19; entry of property rights, state-owned construction land; violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

.... with respect to the appellant’s arguments challenging the merits of the plaintiff’s claim, the Supreme Court clearly specified the basic characteristics and types of factoring agreement, which was not prescribed at that time in the law provisions. Taking Article 5 of the Agreement as a starting point stating that the appellant would repay the total amount of the loan with the associated amount of interest, the court concluded that the plaintiff was entitled to request the appellant to repay the loan amount, since the appellant’s customers did not pay him the amounts stated in the invoices. In this regard, the Constitutional Court notes, in particular, that the appellant, in support of his claims that the plaintiff should have taken legal action against his customers in order to collect the claims, does not indicate in the appeal any provision of the contract or annexes from which the plaintiff’s obligation would arise. Therefore, there is a fact that it was about a non-recourse factoring. Further, considering the appellants’ allegations challenging the conclusions of the expert witnesses on which the Supreme Court based its decision, the Constitutional Court notes that it follows from the reasoning of the Supreme Court, which upheld the findings of the Municipal Court, that the decision on the amount of claims was made on the basis of the burden of proof rule and that the appellant, who was represented by an attorney during the proceedings, had the opportunity to challenge this finding, which the ordinary courts clearly stated. In addition, the Constitutional Court recalls that the Constitutional Court is not called upon to review findings of ordinary courts as to the facts. Thus, in the circumstances of a particular case, given the interpretation of the content of the expert’s findings, there is nothing to indicate that the facts were arbitrarily established in the particular case based on the mentioned finding and opinion, both in terms of the amount of the principle debt and interest.
•    Decision on Admissibility and Merits No. AP 4106/17 of 17 July 2019, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 55/19; factoring contract; no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention, since the adversarial principle was not breached in the proceedings completed by the impugned judgment of the Supreme Court nor was there a violation of civil proceedings in a situation where the Basic Court, by exercising the discretion within the meaning of Article 12(1) of the CPC, considered the issue of marital property as a preliminary issue and enabled the appellant to present the facts and evidence in support of her claims, whereby the ordinary courts, based on the large amount of evidence, clarified the relevant circumstances of the case and found that substantive conditions were met to contest the debtor’s actions, within the meaning of Article 281 of the Law on Obligations and, in this connection, the ordinary courts examined all the relevant objections reiterated in the appellant’s appeal and provided sufficiently clear reasons for their decisions that did not seem arbitrary.
•    Decision on Admissibility and Merits No. AP 3516/17 of 10 September 2019, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 66/19; adversarial principle, marital property, no violation of Article 6 of the European Convention Article II(3)(e) of the Constitution of BiH established

There is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention where the courts provided sufficient and relevant reasons for the decision that the appellants were not entitled to the right of exclusion of property in the bankruptcy proceedings, since the appellants failed to prove that they were the owners of the property for which they sought the exclusion.
•    Decision onAdmissibility and Merits No.AP4631/17 of 30 October 2019, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 76/19; the dispute concerning the right of the appellants to file a petition in bankruptcy proceedings for exclusion of their own property from the bankruptcy estate, no violation of Article 6 of the European Convention or Article II(3)(e) of the Constitution of BiH established

The Constitutional Court finds that the impugned judgments are in violation of the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina where the ordinary courts obliged the appellant to pay compensation for damages without relevant examination of the basis for such compensation in the light of the legal framework prescribing the obligation to file a request for enforcement of the CRPC decision within the limitation period related to the administrative enforcement, otherwise leading to a loss of occupancy right ex lege, so that the CRPC decision, confirming the occupancy right, is important only if the request for the administrative enforcement thereof is filed with the competent administrative bodies, and the Constitutional Court, in its case-law, has taken a clear position about it. In addition, in the present case the ordinary courts failed to give relevant reasoning on the complaint regarding the statute of limitations in terms of Article 376 of the Law on Obligations, and regarding the appellant’s liability for the damage claimed in the circumstances where the building i.e. the disputed apartment was devastated by a force majeure i.e. war events, which was the reason to pull down the building after the war based on the decisions of the competent authorities in Mostar.
•    Decision on Admissibility and Merits No. AP 102/18 of 27 November 2019, paragraph 64, published in the Official Gazette of Bosnia and Herzegovina, 83/19; compensation for pecuniary damages caused by the war, enforcement of CRPC decision, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established