The Constitutional Court of Bosnia and Herzegovina held today its regular 48th session of the Grand Chamber.
Pursuant to Article 18(3) of the Rules of the Constitutional Court of Bosnia and Herzegovina, the Constitutional Court rejected a number of appeals lodged in an untimely fashion, either after the expiration of the time-limit for submitting appeal or prematurely in cases in which it was established that the appellants failed to use all available legal remedies in the preceding proceedings.
The Constitutional Court of Bosnia and Herzegovina, inter alia, was deciding the appeals in connection with Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms relating to adoption of decision on admissibility and merits within a reasonable time. While deciding the appeals, the Court adopted a number of decisions establishing a violation of the appellants’ rights to a fair trial and dismissed a number of appeals as ill-founded in cases in which it found no such violation.
For the illustration purposes we note the following:
The Constitutional Court of Bosnia and Herzegovina granted the appeal of Mr. Josip Tomić from Kiseljak against the ruling of the Cantonal Court in Novi Travnik and ruling of the Municipal Court in Kiseljak challenged by the appellant, claiming that those rulings are in violation of his rights under Article II(3)k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention i.e. the right to property and peaceful enjoyment of property.
The appellant concluded an agreement with Hypo Alpe-Adria-Bank dd Mostar that established that the creditor claims 110 000.00 KM based on the loan contract signed with the appellant.
For the purpose of securing this claim, the lien was granted by this agreement in favour of the creditor over the real property owned by the appellant. The real property consists of the house and courtyard in the total surface of 1 000m2. The appellant and creditor established by the agreement that the value of the invested real property is in the amount of BAM 209 278.00.
Considering that the appellant failed to refund the amount he received based on the approved loan, the creditor, on the basis of this agreement, submitted the proposal for enforcement for the purpose of settling the remainder of the debt to the amount of BAM 72 198.41. The Municipal Court determined the enforcement by the ruling on the enforcement, upon the proposal of the creditor and for the purpose of settlement of the remainder of the debt to the amount of BAM 72 198.41. The enforcement will be conducted through the sale of the real property owned by the appellant. The certified court expert in construction profession estimated the value of the real property with lien right for the sale, to be in the amount of BAM 195 109. 00.
The Municipal Court established that the real property owned by the appellant on which lien is granted was sold for the price of BAM 1 000.00 to the creditor as the enforcement seeker. In the ruling on adjudication the Municipal Court awarded the real property in question to the enforcement seeker and determined that the property is to be handed over to him immediately, and the Land Registry Office is ordered to register the ownership right over the real property in question in favour of the enforcement seeker.
In the appeal filed with the Constitutional Court, the appellant does not challenge his debt towards the seeker of enforcement, neither does he challenge the ruling on enforcement and sale of the real property with lien or the amount which the seeker of enforcement paid for the real property, as the only buyer, during the third bid. The appellant challenges the ruling on settlement only, whereby the conclusion was made that the seeker of enforcement was granted settlement only to the certain amount received through the sale of the real property with lien on it. The appellant considers that in this way the seeker of enforcement was given a possibility to increase his property so that its value is higher than the amount of debt. So, the seeker of enforcement may continue the enforcement proceeding against the appellant or guarantor and the fact is ignored that he became the owner of the real property with lien right, which he, in the meantime, may sell or give for rent and whose value is estimated to be three times higher than the amount claimed by the seeker of enforcement from the appellant.
The Constitutional Court concluded that by the challenged ruling of the Municipal Court in Kiseljak and Cantonal Court in Novi Travnik the appellant’s 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 was violated due to arbitrary application of Article 98 of the Law on Enforcement Proceeding, as the mentioned courts, contrary to the real meaning of the mentioned law provision, considered that the creditor is entitled to continue the enforcement proceeding against the appellant, including the guarantor as well, although the creditor, in the course of the enforcement proceeding, became the owner of the real property, which the appellant gave for lien for the purpose of ensuring the debts towards the creditor.
In view of the aforesaid, the Constitutional Court quashed the ruling of the Cantonal Court in Novi Travnik and Municipal Court in Kiseljak, and remitted the case to the Municipal Court in Kiseljak, which is ordered to take a new decision under expedited procedure in accordance with Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental and to inform the Constitutional Court of Bosnia and Herzegovina, within two months as from the date of the delivery of this Decision, of the measures taken in order to enforce this Decision, in accordance with Article 74(5) of the Rules of the Constitutional Court of Bosnia and Herzegovina.
At the same time the Constitutional Court rejected as inadmissible the appeal of Josip Tomić filed against the ruling of the Cantonal Court in Novi Travnik and ruling of Municipal Court in Kiseljak with regards to allegations of 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 for the Protection of Human Rights and Fundamental Freedom for the reason that they are incompatible ratione materiae with the Constitution of Bosnia and Herzegovina.
In cases where the Court established that there is a violation of the appellant’s right to a fair trial, the relevant courts or administrative bodies were ordered to urgently complete the proceedings and to inform the Court, within three months as from the date of the delivery of this Decision, of the measures taken in order to enforce this Decision.
The appeals that were manifestly, prima facie, unfounded were rejected by the Constitutional Court. The facts the appellants presented to the Court in those cases could in no way justify the claim of the appellants that there is a violation of their rights protected by the Constitution or that the parties to the proceedings bear the consequences of violation of rights protected by the Constitution.
All decisions adopted at the session will be delivered to the appellants within one month and posted on the official website of the Constitutional Court of Bosnia and Herzegovina.
