The proceedings for determination of the costs of proceedings must be regarded as an integral part of the proceedings and accordingly must be regarded as part of “the determination of civil rights and obligations” (see European Court of Human Rights, Robins vs. the United Kingdom, Judgment of 23 September 1997, paragraph 25.f.).
• Decision on Admissibility and Merits No. AP 1365/05 of 29 September 2006, paragraph 21, published in the Official Gazette of Bosnia and Herzegovina, 9/07; the civil proceedings; the costs of proceedings pursuant to lawyers’ tariff; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The state authorities have the exclusive competence to decide on the alien’s right to stay in the country and, therefore, it does not fall within the ambit of “civil rights or obligations” safeguarded by Article 6 paragraph 1 of the European Convention. The case-law of the European Court of Human Rights in Strasbourg is exclusively based on the position that decision-making on movement and stay of aliens, and by analogy, the decision on expulsion of aliens from Bosnia and Herzegovina, lies in exclusive competence of state organs and it may not be included under the concept of “civil rights and obligations” protected by Article 6 of the European Convention.
• Decision on Admissibility and Merits No. AP 1788/05 of 20 September 2006, paragraphs 33 to 35, published in the Official Gazette of Bosnia and Herzegovina, 9/07; expulsion of aliens
The proceedings to establish that the contract is null and void, are of a civil nature. Therefore, Article 6 paragraph 1 of the European Convention is applicable to the present case.
• Decision on Admissibility and Merits No. AP 1605/05 of 20 October 2006, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 11/07
The court proceedings to establish that the decision on termination of labour relations is unlawful are of a civil nature.
• Decision on Admissibility and Merits No. AP 2144/05 of 20 October 2006, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 12/07
The proceedings concerning the right to work and the payment of unpaid salaries are of a civil nature even in case where an employer is a public authority.
• Decision on Admissibility and Merits No. AP 2405/05 of 16 January 2007, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 70/07;
• Decision on Admissibility and Merits No. U 116/03 of 15 June 2004, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 40/04
The outcome of the proceedings upon the motion to confer territorial jurisdiction, which decided on the procedural issues, is not decisive for the determination of the appellant’s civil rights or obligations.
• Decision on Admissibility No. AP 2950/06 of 6 March 2007;
• Decision on Admissibility No. AP 923/06 of 5 April 2007; the conferral of territorial jurisdiction; the appeal is ratione materiae inadmissible
As to the applicability of Article 6 paragraph 1 of the European Convention to the proceedings for compensation of the costs of proceedings and the determination of the appellant’s “civil rights or obligations” in such proceedings, the Constitutional Court points to its case-law as well as the case-law of the European Court of Human Rights according to which the guarantees of Article 6 paragraph 1 of the European Convention apply also to the proceedings for determination of the costs of proceedings, which must be seen as a continuation of the substantive litigation and accordingly as part of a “determination of civil rights and obligations” (see, mutatis mutandis, The Constitutional Court, Judgment No. AP 85/04 of 18 March 2005, and European Court of Human Rights, Robins vs. the United Kingdom, Judgment of 23 September 1997, paragraph 25.f.). Furthermore, according to the case-law of the Constitutional Court and the European Court of Human Rights, the enforcement of a judgment adopted by any court must be taken as an integral part of a “trial” within the meaning of Article 6 of the European Convention (see, inter alia, the Constitutional Court, Judgment No. AP 2653/05 of 12 September 2006 and European Court for Human Rights, Golder vs. United Kingdom, Judgment of 7 May 1974, series A-18, page 16 to 18, paragraph 34 to 36). In view of the above, the Constitutional Court concludes that Article 6 paragraph 1 of the European Convention is applicable to the case at hand.
• Decision on Admissibility No. AP 1525/06 of 26 June 2007, paragraph 9;
• Decision onAdmissibility and Merits No.AP128/06 of 10 January 2008, paragraph 22; the enforcement proceedings, compensation of the costs of proceedings
The outcome of the proceedings, which decided on the procedural issues upon the motion to disqualify an executive, a judge or the president of the court, is not decisive for the determination of the appellant’s civil rights or obligations.
• Decision on Admissibility No. AP 2138/07 of 13 September 2007, paragraph 10; the appeal is ratione materiae incompatible with the Constitution of BiH
In the case concerning obligations, the Constitutional Court concludes that the appellant enjoys the “civil right” protected only in case where the law provides for that the appellant unconditionally acquires certain property (justified expectations) through the legal business concluded.
• Decision on Admissibility and Merits No. AP 2195/06 of 18 October 2007, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 6/08; the right to a fair trial, the right to property, the arbitrary application of the law, securities transaction; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The Constitutional Court recalls that in certain cases, irrespective of the fact that these cases relate to civil servants, the Court considered the appellants’ complaints of a 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. Such cases were dealt with by the Constitutional Court as any labour relations dispute and, depending on the facts of each case, resolved by way of decisions on admissibility or merits. In this regard, the Constitutional Court states that the European Court of Human Rights, in the case of Vilho Eskelinen et al. vs. Finland (Judgment of 19 April 2007, Application No. 63235/00, pp. 42 through 62), reviewed its case-law and concluded that “in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest” and “there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies”. In view of the above, as in the present case no single regulation of Bosnia and Herzegovina governs that the appellant as a civil servant may have no access to court, and keeping in mind the challenged judgments of the ordinary courts, it is indisputable that the appellant, pursuant to the national law, had access to a court. Therefore, Article 6(1) of the European Convention is applicable to the appellant’s case.
• Decision on Admissibility No. AP 2231/06 of 23 November 2007, paragraphs 10 to 13; the applicability of Article 6 of the European Convention when it concerns civil servants; the change of case-law of the European Court in case Pellegrin vs. France
Article 6 of the European Convention is applicable in the case where the appellant asserts the right in respect of a sum which can be calculated in accordance with a valid legal measure, such as the provisions of Article 48(3) of the Law on Attorneys’ Profession in Republika Srpska (Official Gazette of the Republika Srpska, 37/02), but the public authorities failed to exercise discretionary powers in his or her favour and the appellant has done all that he or she needs to do in order to become entitled to receive that sum.
• Decision on Admissibility No. AP 1918/06 of 25 January 2008, paragraph 9; the application of the Tariff of Attorney’s Fees
The appellant in the present case states that, in accordance with the law, he is entitled to request the excise tax refund, which is to be deemed the property. Indisputably, the right to property is a “civil right”. In addition, it is clear that the dispute between the appellant and state authorities concerns the appellant’s right to property. Accordingly, irrespective of the fact that the tax authorities decided at first and second instances, it concerns an economic dispute within the scope of Article 6 paragraph 1 of the European Convention, which is applicable to the case at hand (see the Constitutional Court, Judgment No. AP 28/02 of 15 June 2004, published in the Official Gazette of BiH, 34/04 of 18 August 2004).
• Decision on Admissibility No. AP 1284/06 of 11 March 2008, paragraph 8; payment of excise tax; the appeal is manifestly (prima facie) ill-founded
The Constitutional Court states that the relevant non-contentious proceedings conducted upon the appellant’s motion to deposit pecuniary compensation in favour of the Brčko District of BiH, and that the Basic Court dismissed the appellant’s motion pursuant to Articles 193 through 200 of the Law on Non-Contentious Proceedings, which contain the procedural provisions governing the situations where a competent court is obliged to accept securities and cash in deposit in court by applying the substantive law as it concerns the contractual relations, i.e. the Law on Obligations, which regulates the conditions under which money can be placed in deposit in court. The Constitutional Court finds that the relevant non-contentious proceedings did not involve civil rights or obligations, given that the same was decided in the Contract, which had been previously concluded, and that the aforementioned proceedings decided whether or not the conditions under which money can be placed in deposit in court were met.
• Decision on Admissibility No. AP 3296/07 of 17 April 2008, paragraph 8
Taking into account the nature of the dispute in the present case and the position of the European Court of Human Rights that Article 6(1) of the European Convention is applicable to non-contentious proceedings relating to the determination of land borders, which is closely related to the extent of the ownership and is decisive for the effective exercise of the applicant’s rights, i.e. the free enjoyment of his ownership (see, ECHR, the case of Debelić v. the Republic of Croatia, Judgment of 12 October 2006, Application No. 9235/04), the Constitutional Court concludes that Article 6(1) of the European Convention is applicable to the present case.
• Decision on Admissibility No. AP 655/07 of 10 June 2009, paragraph 9; the applicability of Article 6(1) of the European Convention to non-contentious proceedings relating to the determination of land borders
The Constitutional Court notes that the present case is about a situation where the relevant court proceedings, which were instituted by appellant’s deceased husband I.H., were to decide on the grounds of his statement of claim on the payment of his overdue disability benefits. However, the Constitutional Court points out that although the relevant court proceedings were not to decide on the appellant’s statement of claim, the outcome of the proceedings was decisive for the appellant’s rights and obligations and, consequently, the appellant has a legal interest, i.e. standing to sue and to file an appeal on her own behalf in respect of the relevant court proceedings and for the protection of the rights guaranteed to her under the constitution of Bosnia and Herzegovina and the European Convention.
• Decision on Admissibility No. AP 1648/08 of 24 June 2009, paragraph 6
In the present case the Constitutional Court notes that in non-contentious proceedings a “dispute” arose from the manner of dividing the real property and related to the issue whether the real property could be physically divided or it had to be sold. The Constitutional Court holds that a decision in this “dispute” may have a decisive effect to some other civil rights of the appellant (e.g. the right to home) and, therefore, Article 6(1) of the European Convention is applicable to the present case.
• Decision on Admissibility and Merits No. AP 264/07 of 3 July 2009, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 82/09; non- contentious proceedings for division of real property involve the determination of civil rights and obligations
In the relevant probate proceedings accurate portions of the ownership of the appellants over the testator’s property were determined. In the present case, the outcome of such proceedings where the accurate portions of the ownership of the appellants over the testator’s property were determined, in the view of the Constitutional Court, is decisive for the appellants’ civil rights and obligations and such proceedings are safeguarded by Article 6(1) of the European Convention.
• Decision on Admissibility and Merits No. AP 512/07 of 3 July 2009, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 82/09; probate proceedings
The enforcement proceedings relating to the appellants in the present case raises new issues with regards to the application of the provisions of the Law on Enforcement Procedure, as the enforcement was carried out against the real property which was not subject to the enforcement and where the appellants had lived before the enforcement creditor entered into the possession thereof. The foregoing indicates that the present case involves the proceedings determining the civil rights and obligations within the meaning of Article 6(1) of the European Convention and, therefore, Article 6(1) of the European Convention is applicable to the present case.
• Decision on Admissibility and Merits No. AP 2621/07 of 2 December 2009, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 23/10; enforcement proceedings, the appellant is an enforcement debtor in the proceedings; the appeal is ratione materiae admissible, a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The right to protection of vital national interests under the Constitution of the Republika Srpska is a right of a political nature which, in the opinion of this Constitutional Court, does not fall within the scope of “civil rights and obligations” as that term is understood for the purposes of Article II(3)(e) and Article 6 paragraph 1 of the European Convention.
• Decision onAdmissibility and Merits No.AP2821/09 of 26 March 2010, paragraphs 14 and 33, published in the Official Gazette of Bosnia and Herzegovina, 51/10
The Constitutional Court notes that the relevant proceedings, completed by the Judgment of the Supreme Court No. Uvl-90/05 of 12 December 2007, did not relate to the determination of the appellant’s civil rights but to the well-foundedness of the complaints and statement of claims of appellant’s father Ranko Knežević. In addition, the Constitutional Court notes that the appellant, as a child of deceased pension beneficiary Ranko Knežević, based on a temporary decision issued by the first instance body, was recognised the right to family pension as of 5 July 2006 in the amount of BAM 211.47, and that it contained the reasons according to which a final decision would be issued upon the completion of the proceedings pending before the ordinary courts. In the opinion of the Constitutional Court, the appellant’s rights are called into question by the decisions challenged in the appeal, given that the appellant’s right to family pension stems from the rights that were the subject-matter of consideration in the challenged decisions, i.e. the appellant may be considered an “indirect victim” of the violation referred to in the appeal.
• Decision on Admissibility No. AP 774/08 of 13 October 2010, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 24/11; the retroactive payment of contributions
The Constitutional Court finds that during the main proceedings, i.e. in the administrative dispute, in its lawsuit the appellant sought the protection of his property rights through a request to establish that the decision of the Commission of 9 March 2010 is unlawful, which revoked the appellant’s management license and banned the disposal of the property of the Closed-End Investment Fund. Accordingly, the Constitutional Court finds that the appellant manages the fund based on the contract of 22 April 2009 and collects a management commission in the monthly amount of BAM 100,000.00 or BAM 1,200,000.00 annually. It follows that the purpose of the appellant’s lawsuit in the administrative dispute is the protection of the appellant’s property interests which are interfered with by the decision of the Commission dated 9 March 2010. The purpose and objective of the appellant’s request for postponement of the enforcement of the Commission’s decision dated 9 March 2010 were also the protection of the appellant’s property interest which would come into question by the enforcement of the Commission’s decision of 9 March 2010, which lawfulness is challenged by the appellant during the main proceedings. Therefore, it follows that the proceedings for adoption of the challenged decision was decisive for the effective exercise of the appellant’s civil rights. Accordingly, the Constitutional Court, while taking into its consideration the criteria established by the European Court, considers that the guarantees of Article 6 of the European Convention apply to the proceedings of adoption of the challenged decision.
• Decision on the Admissibility and Merits No. AP 1676/10 of 27 November 2010, published in the Official Gazette of BiH, 24/11; change of the case-law according to which the appeals relating to interim measures used to be rejected as ratione materiae inadmissible; according to the new case-law, the guarantees of the right to a fair trial, under certain conditions, are applicable to the proceedings relating to interim measures to be decided by ordinary courts
Prior to a further discussion on the case as regards the right to a fair trial, the Constitutional Court recalls its newly established case-law in case No. AP 3080/09 of 25 September 2010 (the Official Gazette of BiH, No. 48/11), relating to the removal of the appellant as judge from office in proceedings before the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. After that, the appellant filed an appeal with the Court of BiH against the decision of the HJPC and the Court of BiH dismissed the appeal and stressed the issue of applicability of Article 6(1) of the European Convention to the appellant’s case in respect of both “civil” and “criminal aspect” thereof. In the Decision No. AP 3080/09, the Constitutional Court re-examined its previous case-law and the case-law of the European Court of Human Rights (Olujić v. Croatia, Judgement of 5 February 2009, App. No. 22330/05), and concluded that Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention apply to the appellant’s case under the guaranties provided for by “civil” level of the right to a fair trial. The same applies to the present case and the Constitutional Court will examine the case in the light of the protection of the appellant’s “civil rights” guaranteed by Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention.
• Decision on the Admissibility and Merits No. AP 147/09 of 23 March 2012, paragraph 59, published in the Official Gazette of Bosnia and Herzegovina, 31/12;
• Decision on the Admissibility and Merits No. AP 3080/09 of 25 September 2010, paragraphs 36 to 39, published in the Official Gazette of Bosnia and Herzegovina, 48/11; removal of the judge in the proceedings before the HJPC, there is no violation of Article 6 of the European Convention
The Constitutional Court holds that the proceedings in question relate to the determination of the criminal charge against the second-appellant who enjoys the safeguards to the fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention in the present proceedings. On the other hand, the first-appellant as a third (legal) person, the property of whom was confiscated in the present case in accordance with the Law on Confiscation of Property Acquired by Criminal Offences, also enjoys the safeguards of fair trial from the civil aspect. Given the aforementioned, the Constitutional Court will examine in the present case whether the proceedings were fair as required under the mentioned provisions. As to the applicability of the civil limb of Article 6(1) of the European Convention to the first appellant, the Constitutional Court refers to its Decisions No. U 122/03 of 27 October 2004 (Official Gazette of BiH, 24/05, available on the web site www.ustavnisud.ba) and No. AP 2062/11 of 17 July 2014 (available on the web site of the Constitutional Court www.ustavnisud.ba), wherein it concluded that the courts had decided on the appellant’s civil right to the effect that they had deprived him of his property in the proceedings conducted against other persons, on whether the appellants as the persons whose property had been confiscated and who had participated in the proceedings as witnesses for the defence, had the procedural protection during the confiscation of property. Thus, the Constitutional Court, having referred to its case law, does not have any reasons for questioning the applicability of Article 6(1) of the European Convention.
• Decision on the Admissibility and Merits No. AP 1551/14 of 6 December 2016, paragraph 22; criminal proceedings, confiscation of property gained by the criminal offence, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The Constitutional Court holds that the appellant challenges the decisions taken in the proceedings related to the annulment of the challenged decision on the appointment of manager to the Commission of Legal Assistance of the Brčko District, thus, decisions taken in the course of vacancies procedure in which the appellants participated as candidates. The proceedings related to the determination of the appellant’s civil rights and, therefore, Article 6(1) of the European Convention is applicable in the present case (see Constitutional Court, Decision on Admissibility and Merits, No. AP-3528/13 of 15 September 2016, paragraph 33, available on the web site of the Constitutional Court www.ustavnisud.ba).
• Decision on the Admissibility and Merits No. AP 1842/14 of 11 January 2017, published in the Official Gazette of Bosnia and Herzegovina, 12/17; recruitment procedure, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
