BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Application no. 21206/07
Ismet HALILOVIĆ
against Bosnia
and Herzegovina
The
European Court of Human Rights (Fourth Section), sitting on
17 January 2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
George Nicolaou,
Ledi
Bianku,
Nebojša Vučinić,
Vincent
A. De Gaetano,
Ljiljana Mijović, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 28 April 2007,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Ismet Halilović, was a citizen of Bosnia and
Herzegovina, born in 1952. On 7 October 2008 his wife, Ms Emina
Halilović, and his two sons, Mr RedZo Halilović and Mr
Semir Halilović, informed the Court that the applicant had died
on 3 September 2007 and that they wished to pursue the application as
his legal successors. The Bosnian-Herzegovinian Government (“the
Government”) were represented by their Deputy Agent, Ms Z.
Ibrahimović.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- Following
a car accident in 1971 and unsuccessful civil proceedings, on 24
October 2003 the Constitutional Court of Bosnia and Herzegovina (“the
Constitutional Court”) ordered an insurance company to comply
with the terms of a settlement concluded between the applicant and
that company in January 1992 by paying the applicant the outstanding
monthly payments in a total amount of 47,677 convertible marks (BAM)
together with default interest at the statutory rate for the period
from April 1992 until October 2003 and by continuing to pay the
applicant BAM 343 per month for as long as was required.
- Enforcement
proceedings
- On
20 April 2004 the applicant initiated enforcement proceedings before
the Sarajevo Municipal Court (“the Municipal Court”). On
27 April 2004 the Municipal Court issued an execution writ.
- On
28 June 2004 the Municipal Court accepted the debtor’s
objection and altered the execution writ of 27 April 2004 in the part
concerning the calculation of default interest in the period from 1
April 1992 to 23 December 1996. On 25 January 2005 the Sarajevo
Cantonal Court quashed that decision and ordered that the execution
writ of 27 April 2004 be as fully in force.
- In
the meantime, on 23 August 2004 the applicant received BAM 114,252.74
(the principal debt in the amount of BAM 47,677, default interest in
the amount of BAM 65,145.74 and costs and expenses in the amount of
BAM 1,430). On 15 April and 6 July 2005 the applicant received
further amounts of BAM 5,242 and BAM 54,910 for default interest.
- The
applicant was also regularly receiving BAM 343 per month (see
paragraph 3 above) until his death on 3 September 2007.
- Criminal
proceedings concerning non-enforcement
- On
22 April 2005 the Constitutional Court held that the decision of
24 October 2003 had not been fully enforced and referred the
case to the competent public prosecutor (see “Relevant domestic
law” below).
- On
30 January 2006 the public prosecutor interviewed the applicant. On
13 and 28 February 2006 he interviewed the financial director and two
other employees of the debtor insurance company.
- On
30 March 2006 the public prosecutor ordered a financial expertise in
the applicant’s case. On 10 April 2006 the financial expert,
A.H., submitted his opinion in which he stated that until 30 April
2006 the applicant had received BAM 178,815.88 in total. Moreover, he
concluded that the applicant should receive a further amount of BAM
40,208.84 in respect of default interest since it had been wrongly
calculated, and that he had unduly received BAM 1,715 in respect of
the monthly annuities (the debtor has paid double annuities for the
period from August until December 2004).
- On
15 and 17 August 2006, the applicant received a further BAM 40,208.84
in two instalments.
- On
4 September 2006 the applicant filed an objection to the expert’s
opinion claiming that default interest had been wrongly calculated.
On 19 December 2006 and on 9 January 2007 the expert submitted
an additional expertise maintaining his previous findings. Moreover,
he held that with the additional payment of BAM 40,208.84 the
Constitutional Court decision was fully enforced.
- On
30 March 2007 the public prosecutor decided not to prosecute since
the Constitutional Court decision of 24 October 2003 had been fully
enforced. On 7 May 2007 the General Prosecutor upheld that decision.
B. Relevant domestic law
- In accordance with Article 239 of the Criminal Code
2003 (published in Official Gazette of Bosnia and Herzegovina nos.
3/03 of 10 February 2003 and 37/03 of 22 November 2003;
amendments published in Official Gazette nos. 32/03 of 28 October
2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of
17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006,
32/07 of 30 April 2007 and 8/10 of 2 February 2010),
non-enforcement of a decision of the Constitutional Court is a
criminal offence:
“An official of the State, the Entities or the
Brčko District who refuses to enforce a final and enforceable
decision of the Constitutional Court of Bosnia and Herzegovina, the
Court of Bosnia and Herzegovina, the Human Rights Chamber or the
European Court of Human Rights, or who prevents the enforcement of
any such decision, or who frustrates the enforcement of any such
decision in some other way, shall be punished by imprisonment for a
term of between six months and five years.”
COMPLAINT
- The
applicant complained of the non-enforcement of the Constitutional
Court’s decision of 24 October 2003 in his favour. He relied on
Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1
to the Convention.
THE LAW
- The
Government submitted that the application should be rejected as
manifestly ill-founded since the Constitutional Court decision was
fully enforced.
- The
applicant’s legal successors agreed that the principal debt had
been fully paid, but maintained that default interest had not been
fully paid. They did not specify, however, the additional amount that
should be paid to them nor a legal basis for such payment.
- The
Court notes that on 23 August 2004 the applicant was paid the
principal debt in full, a part of the default interest and costs and
expenses. Subsequently, in the course of 2005 and 2006 he received
further payments in respect of default interest (see paragraphs 6 and
11 above). In addition, he was regularly receiving BAM 343 per month
until his death on 3 September 2007.
- The
Court notes that on the public prosecutor’s request, a thorough
investigation into the applicant’s claims was carried out. A
financial expert concluded that the Constitutional Court decision had
been fully enforced. In the absence of any evidence to the contrary,
the Court sees no reason to depart from that finding. It concludes
that the decision in issue had already been fully enforced when the
applicant lodged his application.
Therefore,
the application is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
