The Grand Chamber of the Constitutional Court of Bosnia and Herzegovina held its 85th ordinary session today.
Of the decisions adopted today, the Constitutional Court singles out the following:
AP-965/17 - The Constitutional Court found that there was a violation of the appellant’s right to reputation, as part of the right to private life under Article II (3) (f) of the Constitution of Bosnia and Herzegovina and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”). The violation was found in a situation where by disputable expression, which can hardly contribute to debates of a public interest, the defendant presented the opinion about the appellant’s husband and about other non-likeminded persons in a vulgar, offensive and intolerant manner. Indeed, the violation was found as the courts failed to critically reflect on the contents of the disputable text as a whole and in the context, which the Complaints Commission of the Press Council in Bosnia and Herzegovina reacted to, and as the ordinary courts granted protection for the defendant under Article 10 of the European Convention, thus failing to strike a fair balance between the two competing rights. Therefore, it is very questionable whether the text which has been considered in its entirety and in the context may be entitled to protection under Article 10 of the European Convention, which does not allow protection for offensive statements only aimed at offending someone.
At the today's session, the Constitutional Court also adopted several merger cases decisions on admissibility and merits concerning the general problem of non-enforcement of final court decisions at the expense of the budgets of various levels of government within the Federation of Bosnia and Herzegovina (municipality, city, canton and Federation of BiH). In these decisions, the Constitutional Court found a violation of the appellants’ rights 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 referred to in Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention. In these decisions, the Constitutional Court found that by not taking the necessary measures over a longer period of time with the aim of enforcing the final judgments of the competent authorities, the constitutional right to a fair trial was deprived of any useful effect and the appellants were prevented from receiving the money they are entitled to according to the final court judgments. The failure to impose measures has led to disproportionate interference with their right to peaceful enjoyment of the constitutional right to property. The Constitutional Court emphasized that the purpose of these decisions is not to bring the appellants into a privileged position when compared with others who received final court decisions at the expense of the budget, who are in the same legal situation but did not address the Constitutional Court, as this would be inconsistent with the goal of human rights protection. As regards the Federation of Bosnia and Herzegovina, the Constitutional Court concluded that the Government of the FBiH is on the right track as it undertook concrete measures that ultimately should result in the settlement of claims of all creditors during 2019 and 2020. This would also mean an overall solution to the problem of non-enforcement of domestic courts' decisions and enforcement of procedural decisions of the administrative bodies relating to claims at the expense of the budget of the Federation of Bosnia and Herzegovina.
As to the issue of compensation for non-pecuniary damage due to the established violation of the mentioned constitutional rights, the Constitutional Court, in the above mentioned decisions, took into account the fact that the relevant rulings were adopted on the motion of the appellants as parties seeking enforcement, in respect of which the legal default interest was also determined commencing from precisely specified dates until the date the payment is made. In the opinion of the Constitutional Court, the amount of statutory default interest rates is directly proportional to the period during which the binding and enforceable court decision was not enforced. Therefore, the Constitutional Court concluded that the payment of default interest provides for appropriate protection of the appellants, i.e. the creditors, where appropriate satisfaction for the appellants is also achieved.
All decisions taken at the session are to be delivered to the appellants within one month time-limit and posted on the official website of the Constitutional Court of Bosnia and Herzegovina at the earliest convenience.
