The right to a fair trial does not provide for the court to examine all arguments that the parties presented during the proceedings, but only arguments the court deems relevant. The Court must take into account arguments of the parties to the proceedings, but not all of them have to be presented in the reasoning of the judgment.
• Decision on Admissibility and Merits No. AP 415/04 of 23 July 2004, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 43/04; criminal proceedings, equality of the parties to the proceedings, erroneous application of the law; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 417/04 of 23 March 2005, paragraph 18, published in the Official Gazette of Bosnia and Herzegovina, 32/05; civil proceedings, request for removal of registration of the land from the title deed; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 476/04 of 17 December 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 34/05; criminal proceedings, compensation of the costs of the criminal proceedings; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on the Merits No. AP 978/05 of 13 September 2005, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 3/06
There is no violation of the right to a fair trial when the ruling on minor offence is based, inter alia, on the statement of the co-accused, who had been convicted earlier for the same offence, if a logical and convincing reasoning was given for the decision of the court, and if there are no elements indicating that assessment of evidence made by the ordinary courts was manifestly arbitrary or that the evidentiary proceedings were abused to the detriment of the appellants within the meaning of the right to a fair trial.
• Decision on Admissibility and Merits No. AP 628/04 of 12 April 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 42/05; criminal proceedings; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The ordinary court has the obligation to describe in the reasoning of the judgment a process of individual assessment of evidence, tying every piece of assessed evidence with other evidence and to reach a conclusion that certain facts were proven.
• Decision on Admissibility and Merits No. AP 661/04 of 22 April 2005, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 44/05; criminal proceedings in which the judgment of conviction against the appellant was based, largely, on the statement of a witness who made a plea bargain with the prosecution, as the sol01
• e direct piece of evidence; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
There is a violation of the right to a fair trial in the event when the convicting judgment is largely based on the statement of a witness who had made a plea bargain with the prosecutor, whereby the court failed to give a logical and convincing reasoning for the assessment of the mentioned piece of evidence and of other presented evidence but rather the mentioned assessment appears arbitrary.
• Decision on Admissibility and Merits No. AP 661/04 of 22 April 2005, paragraphs 39 to 41, published in the Official Gazette of Bosnia and Herzegovina, 44/05; criminal proceedings, in which the convicting judgment against the appellant was based, largely, on the statement of a witness who made a plea bargain with the prosecution, as the sole direct piece of evidence; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The party to the proceedings cannot have priority over other party with respect to a possibility to present evidence.
• Decision on Admissibility and Merits No. AP 628/04 of 12 April 2005;
• Decision on the Merits No. AP 1124/05 of 9 February 2006, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 45/06; criminal proceedings, criminal act of tax evasion
The Constitutional Court will not interfere with a situation when the ordinary courts give credence to evidence of one party to the proceedings on the basis of judicial margin of appreciation. That is exclusively the role of the ordinary courts, even when the statements of witnesses at the public hearing and under oath are contradictory (see European Court of Human Rights, Doorson v. Netherlands, judgment of 6 March 1996, published in the Reports, No. 1996-II, paragraph 78).
• Decision on the Merits No. AP 1103/05 of 9 May 2006, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 68/06; criminal proceedings, criminal act of fraud
Element of a fair trial is also a requirement for the court decision to carry the reasons on which it is based. However, what is the extent of the responsibility shall depend on the nature of the decision and can be appraised by the court only in relation to the circumstances of each individual case.
• Decision on Admissibility and Merits No. AP 1401/05 of 12 September 2006, paragraph 61, published in the Official Gazette of Bosnia and Herzegovina, 7/07; civil proceedings
The Constitutional Court notes that the observation stated in the reasoning of the challenged decision of the Supreme Court that “the appellant in his lawsuit opted for the value of dispute of up to BAM 10,000, that is that he did not specify the value of the subject of dispute to be exceeding the amount of BAM 10,000”, as far as the mentioned evidence in the case files (according to which the appellant failed to specify the value of dispute in the lawsuit, yet during the preliminary hearing he did specify the value of dispute in the amount of BAM 10,000), indicates that the present reasoning was not substantiated or clear to a sufficient degree, as it is not possible to observe the basis on which the Supreme Court reached a conclusion in its reasoning that the appellant specified the value of dispute up to the amount of BAM 10,000, that is that he did not specify the value of dispute to exceed the amount of BAM 10,000. Thus, no legal conditions exist for the filed revision-appeal to be decided on, which appears as arbitrary assessment of evidence and arbitrary application of the procedural law. The Constitutional Court holds that such reasoning of the challenged decision of the Supreme Court does not meet the requirement of careful and conscientious assessment of evidence, as the Supreme Court should have examined in more detail in the present case whether the conclusion offered in the reasoning of the challenged decision, meets the requirements laid down in the Civil Procedure Code, as well as requirements of Article 6 of the European Convention, which has the force of constitutional provisions and it has priority over all other law.
• Decision on Admissibility and Merits No. AP 884/06 of 8 November 2007, paragraphs 30 and 31, published in the Official Gazette of Bosnia and Herzegovina, 23/08; revision-appeal, reasoned judgment; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The principle of free appraisal of evidence does not constitute absolute freedom. Such freedom is restricted by general rules and patterns of human thinking, logic and experience. Therefore the ordinary court has the obligation to describe in the reasoning of the judgment the process of individual assessment of each piece of evidence, tying each assessed piece of evidence with other evidence and reaching a conclusion that a certain fact has been proven.
• Decision on Admissibility and Merits No. AP 1603/05 of 21 December 2006, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 34/07; criminal proceedings, assessment of legal validity by ordinary courts; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
Subjective conviction of the court that the appellant had committed a criminal act he was charged with is not sufficient, rather the conclusion of the court must be true and based on objective facts and well-reasoned. The ordinary courts may not just state that they do not give credence to a certain witness only because his/her statement is contradictory to the statement of some other witness they give credence to nor is it sufficient if they subjectively qualify evidence as “arbitrary”.
• Decision on Admissibility and Merits No. AP 1603/05 of 21 December 2006, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 34/07; criminal proceedings, assessment of legal validity by ordinary courts; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court does not deny the right of the ordinary courts to give credence to certain evidence, however it would be arbitrary to conclude that certain evidence were not given credence for a mere reason that they were contradictory to other evidence. The Court must provide reasons related to the essence as to why it does not give credence to evidence, and provide reasons supporting the claim that certain evidence are credible and others are not. Only in this manner can the court show a satisfactory level of impartiality and objectivity and fulfil its role which is a stipulated verification of evidence. Therefore, the court must face evidence which are in favour of the appellant and provide reasons as to why it does not give credence to them.
• Decision on Admissibility and Merits No. AP 2482/06 of 11 March 2008, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 32/08; arbitrary establishment of the facts of the case; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
There is a violation of the right to a fair trial in relation to the reasoned judgment under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention in a situation where the court failed to give satisfactory, clear and complete reasons in the challenged decision, on the basis of which it would be possible to observe why the court departed from the earlier case-law in the same legal matter that it had considered earlier by interpreting and applying differently the relevant substantive regulations to the same facts.
• Decision on Admissibility and Merits No. AP 2478/06 of 17 September 2008, paragraph 40, published in the Official Gazette of Bosnia and Herzegovina, 102/08; labour dispute, reasoned judgment, reasonable time limit; 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 issue of use of the truck kipper MAN 16.230 was determined exclusively in accordance with Article 77(1)(1) of the Decree. However, the appellant’s claim for compensation of damage in the form of lost gains was not considered in relation to the provisions of Article 189(3) of the Law on Obligations, although the appellant sought it, and that part of his claim was granted in the first-instance judgment of the Municipal Court. It is noted that the appellant was continuously registered to perform transportation activity, and this case relates to the claim for compensation of damages in the form of lost gains for a truck, not a heavy machine. Therefore, the court failed to decide on an important part of the appellant’s claim in accordance with the relevant law provisions, which is, according to the Constitutional Court, contrary to the principles of fair trial with regards to the quality of the reasons for the decision.
• Decision on Admissibility and Merits No. AP 3013/06 of 29 April 2009, paragraph 86, published in the Official Gazette of Bosnia and Herzegovina, 50/09; compensation for damages in the form of lost gains, reasoned judgment, reasonable time limit; 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 it follows from the judgments contested in the appeal that there was no good and convincing reasons with regards to the determination of key facts (date and scope of mobilisation of the appellant’s funds and determination of the amount of compensation) and application of the relevant law provisions (the issue of registration of activity, compensation for damages in the form of lost gains in accordance with the provisions of the Law on Obligations and determination of the date of the commencement of payment of default interest on awarded amounts), where the outcome of the proceedings which the appellant initiated to claim compensation for damages caused by misappropriation of his property and failure to return it depended on the determination and application of the mentioned provisions. This resulted in a violation of the appellant’s constitutional right to a fair trial and the right to property under Article II(3)(e) and (k) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention and Article 1 of Protocol No. 1 to the European Convention.
• Decision on Admissibility and Merits No. AP 3013/06 of 29 April 2009, paragraph 111, published in the Official Gazette of Bosnia and Herzegovina, 50/09; compensation for damages in the form of lost gains, reasoned judgment, reasonable time limit; 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 such reasons for contested decisions are not sufficiently supported by arguments, nor are they sufficiently clear as they do not indicate the basis, evidence and reasons for which the court decided “that the general limitation period under Article 371 of the Law on Obligations was applicable to such a type of claims”, and not the limitation period under Article 374 of the Law on Obligations, which explicitly regulates the issue of statute of limitations on the claims of the legal persons referred to in the agreement of movement of goods and services. In particular, the Constitutional Court notes that the Tariff System exclusively determines the categories and manner of calculation of electric power supply for certain groups of consumers. Therefore, the Constitutional Court holds that the fact that the Tariff System defines the power supply in the present case as “other consumption” for the purpose of determining the price of supplied electric power cannot be decisive for the conclusion as to which limitation period referred to in the Law on Obligations was to be applied. The Constitutional Court holds that such reasons given by the ordinary courts do not satisfy the minimum standards of the right to a reasoned decision, which forms consisting part of the right to a fair trial under Article 6(1) of the European Convention, which amounted to arbitrariness incompatible with the goal and essence of the mentioned right.
• Decision on Admissibility and Merits No. AP 3355/07 of 14 April 2010, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 80/10; reasoned judgment, 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 there was 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 when the Cantonal Court failed to apply explicit law provisions on interruption of the proceedings for enforcement of the decision of the CRPC and to give appropriate reasons for its decision.
• Decision on Admissibility and Merits No. AP 2825/07 of 28 April 2010, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 95/10; reasoned judgment, repossession of the apartment; 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 it does not follow from the contested decision which regulation was the basis for the Supreme Court to conclude that “the term of joint ownership of business share does not exist in the national legislation”. In particular, the Constitutional Court indicates that the provision of Article 264(2) of the Family Law relates to all property acquired as a result of work during a marriage regardless of the type of property, and that the term “joint property” is used in the law. Furthermore, the Constitutional Court notes that the provisions of Article 332(1) and Article 334 of the Law on Business Companies provide that several persons may by owners of a “share” and that “share” may be divided into indivisible parts. Furthermore, the Constitutional Court notes that the Supreme Court notes in the contested decision that the lower-instance courts failed to consider the fact that the appellant had expressly stated at the main hearing that “she did not initiate proceedings for division of property but that she had intention to do so”. However, the Supreme Court did not give reasons for considering that the mentioned fact was important for resolution of the dispute in question but it invoked arbitrarily the failure of the lower-instance court. Taking into account the foregoing, the Constitutional Court holds that the challenged judgment of the Supreme Court does not contain the reasons for satisfying the requirements under Article 6(1) of the European Convention. Given the foregoing, the Constitutional Court concludes that the contested decision of the Supreme Court is in violation of the appellant’s right 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 1720/08 of 21 December 2010, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 48/11; reasoned judgment, business shares; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court cannot conclude that the decision of the Appellate Court violates the appellant’s constitutional rights, but quite the contrary, that it contains the answers to the essential question as to why the defendant has not violated the appellant’s right to logo and committed the act of unfair competition. The Constitutional Court points out that by comparing the registered logo with the denotation used by the defendant on its memorandum, it would exceed the scope of its jurisdiction, particularly because the appellant did not indicate any unfairness of proceedings in its procedural part but only found the violation of the right to a fair trial in erroneous interpretation of the provisions of the Law on Industrial Property. In view of the above, the Constitutional Court finds that the challenged judgment has not violated the appellant’s right to a fair trial.
• Decision on Admissibility and Merits No. AP 1080/08 of 27 May 2011, paragraph 39, published in the Official Gazette of Bosnia and Herzegovina, 99/11; reasoned judgment, right to logo, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
As to the fulfilment of the law requirement of “invested own funds” for renovation of the apartment in question that the Supreme Court only noted that the first-instance court, having correctly assessed evidence, established that the plaintiff had made reparations in the apartment by investing his own funds. The Supreme Court indicated that the plaintiff had hired workers who had performed the works in the apartment and that the heard witnesses were contractors, and the court expert in finances gave his opinion on the amount of invested funds for necessary costs in respect of the apartment. The Constitutional Court holds that the Supreme Court’s decision does not contain quality and convincing reasons with regards to the determination of the key fact as to whether the plaintiff invested his own funds in the renovation of the apartment in question within the meaning of Article 18(a) of the Law on the Cessation of Application, although the outcome of the dispute depended on determination and application of the mentioned law provisions.
• Decision on Admissibility and Merits No. AP 2269/08 of 8 June 2011, paragraph 33; burden of proof, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;
• Decision on Admissibility and Merits No. AP 3617/08 of 12 October 2011, paragraph 46; burden of proof, 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 there is a violation of the right to a fair trial with regard to the right to a reasoned decision under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention as the court did not give sufficient, clear and satisfying reasons which would enable to see why the same court in the administrative dispute, having decided on the same legal issue as that it had considered in the civil procedure, departed from its view by interpreting facts differently and by applying the same substantive legal regulations to it.
• Decision on Admissibility and Merits No. AP 168/09 of 25 October 2011, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 97/11; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court, taking into account the facts of the case, notes that its task is not to substitute the national court by giving its own interpretation. However, taking into account the standards of the right to a fair trial, the Constitutional Court holds that the Supreme Court did not give clear and unambiguous reasons for its view relating to the application of substantive law in the present case, which should have clearly and reasonably indicated why it took a different legal view in the contested decision than that taken by the lower-instance courts, all the more so as it follows from the reasons for the judgment that the Supreme Court did not take into account all the facts established by the lower-instance courts, although it was bound by them within the meaning of the relevant provisions of the Civil Procedure Code. In this connection, as it follows from the reasons for lower-instance judgments that the representatives of the defendant, in addition to the representatives of the school and Municipality of Banja Luka, participated in the negotiations related to transportation business, the Constitutional Court holds that the Supreme Court, having fully disregarded this fact, violated the constitutional right of the appellant. The correct application of substantive laws depended on that fact and its connection with other facts, which indisputably falls within the scope of reviewing court under Article 250(1) of the Civil Procedure Code. Therefore, the Supreme Court failed to deal with the appellant’s allegations and the lower instance courts’ findings in respect of the fact being of the essential importance to the outcome of the dispute and the question whether and which mechanism of contractual law, which were mentioned in the reasons for the ordinary courts, was applicable to the present case. As the Supreme Court did not give clear and unambiguous reasons for its legal view related to the application of substantive law, since it disregarded the factual findings of the ordinary courts, the Constitutional Court holds that the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was violated.
• Decision on Admissibility and Merits No. AP 6/09 of 18 April 2012, paragraph 43; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
Taking into account the standards and principles indicating that the ordinary court’s task is to assess the presented facts and evidence and that the Constitutional Court’s task is to examine whether the constitutional rights were violated or disregarded, the Constitutional Court cannot conclude that the decision of the Cantonal Court violated the appellant’s constitutional rights, but quite the contrary, it gave responses to an essential question as to why the plaintiff’s claim was granted, and the appellant’s counter-claim was dismissed, all the more so as the appellant did not indicate any unfairness of the procedural part of the proceedings but she complained about the violation of the right to a fair trial as the Cantonal Court erroneously found that she was not divorced. Accordingly, the Constitutional Court finds that the challenged judgment was not in 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 4013/09 of 15 May 2012, paragraph 41, published in the Official Gazetteof Bosniaand Herzegovina, 53/12; establishment of the validity of a marriage, i.e. annulment of marriage, there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court cannot conclude that the decisions of the Supreme, Cantonal and Municipal Courts are in violation of the appellant’s constitutional rights, but on the contrary, they contain the answers to the essential issues based on the relevant provisions of the substantive law, the provisions of the Civil Procedure Code, first and foremost that the appellant failed to prove legal succession of the defendants after the buyer, nor did it prove that it had fulfilled the obligation to the seller. In addition, the Constitutional Court holds that the buyer as a contracting party, first and foremost, had had the obligation to settle debt to the appellant. However, given the fact that the bankruptcy procedure for the appellant had been concluded, the appellant could have registered its claims in the bankruptcy procedure, which, on the basis of the facts of the case, the appellant obviously failed to do. In view of the aforementioned, the Constitutional Court concludes that the challenged judgments did not violate 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 1106/09 of 26 May 2012, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 59/12; payment of debt, there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court notes that neither the first-instance court nor the Cantonal Court in the appellate proceedings fulfilled their obligations of giving clear reasons for their decision on the commencement of the limitation period under which the plaintiff was to bring his claim, i.e. the contested decisions do not contain the reasons meeting the requirements under Article 6(1) of the European Convention. Accordingly, the Constitutional Court holds 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 1630/09 of 27 June 2012, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 74/12; all-risk insurance, commencement of limitation period, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court notes that the reasons for the challenged decisions clearly state that the appellant failed to prove that the defendant had had any cause-and-effect relationship with the detrimental event or that it had caused the respective damage through its respective actions. On the other hand, the ordinary courts emphasized in the reasoning of the challenged decisions that the appellant failed to prove in the respective proceedings that the damage had occurred in connection with hazardous matter or hazardous activity in order to possibly apply the provisions of Articles 158, 173 and 177 of the Law on Obligations, for the reason that the respective detrimental event does not constitute an activity organized by the defendant, rather it constitutes an act of general crime. So, the appellant failed to prove in the respective proceedings that the defendant had any cause- and-effect relationship whatsoever with the detrimental event, or that it had caused the respective damage through its actions. Considering the aforementioned, according to the Constitutional Court, the ordinary courts provided in the challenged decisions a detailed and clear reasoning for their respective positions regarding the established facts and the application of the substantive law, which do not appear to be arbitrary in any part.
• Decision on Admissibility and Merits No. AP 2084/09 of 28 September 2012, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 92/12; compensation for damages under former Article 180 of the Law on Obligations - responsibility of socio-political community for damages caused during the war; there was no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
There was 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 as the reasons for the decisions ordering the appellant’s husband and the appellant who was registered as the owner of the apartment to leave the apartment were not given.
• Decision on Admissibility and Merits No. AP 3102/09 of 6 December 2012, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 1/13; repossession of apartment, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court observes that the actions related to the perpetration of the continued criminal offence of tax evasion the appellants were charged with were not differentiated in a precise manner. Furthermore, the appellants have for the most part committed continued criminal offence of tax evasion by taking actions at the time when the 1998 Criminal Code of FBiH was in effect i.e. the indictment charged them with having committed the classified form of criminal offence of tax evasion under this law as well. Finally, there was no clear and precise definition of the time of commission of the last action that entered into the continued criminal offence on the basis of which the time of the commission of offence is being determined after all and consequently which law was in effect at the time of the commission of the criminal offence. Considering the foregoing, the reasoning of the first instance court that “there was no room for application of the principle of applying a more lenient law, because the application of that legal institute requires that law is amended once or several times after the commission of the criminal offence and therefore “in the instant case the 2003 Criminal Code of FBiH is applied”, cannot be accepted as reasoning that answers the question of which law should have been applied i.e. which law is more lenient to the perpetrator.
• Decision on Admissibility and Merits No. AP 1123/11 of 22 March 2013, paragraph 98, published in the Official Gazette of Bosnia and Herzegovina, 31/13; continued criminal offence, time of perpetration of criminal offence, application of more lenient law, a violation of violation of Article 6 of the European Convention and Article II(3)
(e) of the Constitution of BiH established
The Constitutional Court holds that there was no violation of the right to a fair trial under Article II(3)(e) of the Constitution and Article 6(1) of the European Convention when the ordinary court’s failure to explicitly explain in the reasons for the contested decision the manner in which it resolved a specific legal issue in the circumstances of the case was not such to affect the fairness of the proceedings as a whole.
• Decision on Admissibility and Merits No. AP 29/10 of 25 April 2013, paragraph 55; time constraints regarding the applicability of criminal law, there has been no violation of 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 as the operative part of the court’s decision indicated the facts and circumstances based on unlawful evidence, i.e. when the contested decision was based on evidence on which it could not have been based within the meaning of the provisions of Article 10(2) of the Criminal Procedure Code.
The Constitutional Court establishes that there is 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 where the Cantonal Court in the challenged judgment failed to provide the reasons on decisive facts in relation to committing minor children into care, and the decision does not contain clear and well-argued reasons on which it was based, that is to say where the challenged decision does not contain the reasoning meeting the requirements under the standard of the right to a fair trial.
• Decision onAdmissibility and Merits No. AP 3012/13 of 9 October 2013, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 86/13; parental guardianship; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
• Decision on Admissibility and Merits No. AP 3364/10 of 12 February 2014, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 21/14; criminal proceedings, unlawful evidence, 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 there was 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 as the ordinary courts, taking into account the claim as specified and the fact that a cemetery was constructed on the plot of land in question, which was excluded as such from legal transactions, dismissed the appellant’s claim for surrender into possession of the plot in question, in respect of which they gave clear reasons supported by arguments, which do not appear arbitrary in any segment.
• Decision on Admissibility and Merits No. AP 1411/11 of 27 February 2014, paragraph 46, published in the Official Gazette of Bosnia and Herzegovina, 22/14; delivery of possession of the plot where the defendant constructed a cemetery based on urban development permit; 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 the Cantonal Court, having dealt with the defendant’s appeal, found that the first-instance court had correctly established all decisive facts but it had erroneously concluded that the defendant’s rulings were lawful. In particular, according to the Cantonal Court’s opinion, the defendant acted in accordance with the provisions of Articles 5 and 6 of the Rulebook when it took the contested rulings, since the ruling on the assessment of the appellant’s performance was issued within a time limit of 30 days after the end of the calendar year and it was issued by the mayor. Furthermore, according to the opinion of the Cantonal Court, it clearly follows from the case-file that the defendant, when issuing the ruling dated 29 January 2003, acted in accordance with the provision of Article 50(4) of the Law on Labor Relations and Salaries of the Employees of the Administrative Authorities of the Federation of BiH as it gave detailed reasons for which the appellant was rated “not satisfactory”. Thus, the Cantonal Court, having decided on the defendant’s appeal, gave clear and precise reasons for which it decided to grant the appeal and modify the first-instance judgment.
• Decision on Admissibility and Merits No. AP 2185/11 of 8 May 2014, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 57/14; assessment of an employee’s performance ; 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 of the European Convention was not violated when the Cantonal Court, which granted all circumstances of the case, modified the decision on custody, and having taken into account the age of the child and other circumstances, entrusted care for the minor child to the mother, in respect of which it gave clear and valid reasons based on the Family Law of the Federation of Bosnia and Herzegovina, which gives priority to the interest of the child.
• Decision on Admissibility and Merits No. AP 373/11 of 10 June 2014, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 57/14; child custody; 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 in respect of the appellant’s allegations that the ordinary courts, unlike the allegations set forth in the appeal, gave detailed reasons for their decisions. In this connection, the Constitutional Court did not find any arbitrariness in the findings that the appellant had the right of compensation for non-pecuniary damage in the amount specified in the judgments as he had been detained unlawfully and his life- related activities had been reduced, in respect of which the ordinary courts gave clear and precise reasons when they applied the relevant provisions of the Law on Obligations. Furthermore, the Constitutional Court recalls that the amount of compensation for non-pecuniary damage is to be determined depending on the circumstances of each particular case and, unlike the appellant’s allegations, it is not possible to determine the fixed amounts through the case-law in such cases, as reasoned by the Supreme Court in its judgment. In this connection, the Constitutional Court holds that it follows from the mentioned reasons given in respect of the determination of the amount of compensation for non-pecuniary damage to be awarded to the appellant that there is nothing to indicate arbitrary application of substantive law and that the reasons for the contested decision are in compliance with the standards of the European Convention. According to the Constitutional Court, and unlike the allegations of the appellant, the contested decisions contain the reasons both in respect of the compensation for non- pecuniary damage caused by unlawful deprivation of liberty and detention and with regards to the sustained mental anguish caused by the harm to his honor and reputation, and compensation for damage caused by reduction of life-related activities and in respect of the manner of the determination thereof, and the reasons for referring a part of the claim related to compensation for pecuniary damage for new proceedings, which do not appear arbitrary or unacceptable in any segment thereof so that the Constitutional Court holds that the mentioned reasons completely comply with the standards of Article 6 of the European Convention. Given the foregoing and the facts that the ordinary courts dealt with all complaints which the appellant reiterated in the appeal and that they gave reasons for considering why they could not take a different decision in the present case, the Constitutional Court holds that in the present case there was nothing which would indicate that the ordinary courts arbitrarily applied the relevant provisions to the detriment of the appellant.
• Decision on Admissibility and Merits No. AP 2451/12 of 10 June 2014, paragraph 34; determination of the amount of non-pecuniary damage caused by unlawful deprivation of liberty and detention; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
