PRAZINA v. BOSNIA AND HERZEGOVINA - 32228/11 (Judgment : Violation of Right to a fair trial - Administrative proceedings - Reasonable time)) [2017] ECHR 1099 (05 December 2017)

In the case of Prazina v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Faris Vehabović,
          Péter Paczolay, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 14 November 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 32228/11) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two nationals of Bosnia and Herzegovina, Mr Alija Prazina (“the first applicant”) and Mr Armin Prazina (“the second applicant”), on 19 April 2011.

2. The applicants were represented by Ms S. Poropat, a lawyer practising in Vogošća. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić.

3. On 31 January 2015 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The first applicant lives in Sarajevo. He is the grandfather of the second applicant. The second applicant was born in 1986 and lives in Sarajevo.

5. On 10 November 2005 the second applicant initiated administrative proceedings in order to obtain recognition of the veteran status of his late father. His request was rejected on 12 December 2005. The second applicant appealed on an unknown date in December 2005 or January 2006.

6. On 26 January 2006 the competent Ministry upheld the first-instance decision.

7. On 21 January 2008 the Sarajevo Cantonal Court quashed the decisions of 12 December 2005 and 26 January 2006, and remitted the case to the first-instance body. In the new proceedings, the second applicant’s request was again rejected. The last decision was given by the Sarajevo Cantonal Court on 25 September 2012. It was served on the second applicant on 23 October 2012.

8. In the meantime, on 10 October 2012, the Constitutional Court found a breach of the second applicant’s right to a trial within a reasonable time. It did not award any damages.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

9. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

10. The Court notes that the proceedings started in December 2005 or January 2006 when the second applicant lodged an appeal against the decision of 12 December 2005 (see paragraph 5 above), and ended on 23 October 2012 when the last decision in the administrative proceedings was served on the second applicant (see paragraph 7 above). They thus lasted approximately six years and ten months before one level of jurisdiction (see, for example and mutatis mutandis, Dumanovski v. the Former Yugoslav Republic of Macedonia, no. 13898/02, § 35, 8 December 2005).

A. Admissibility

1. The first applicant

11. Although the Government did not raise any objection as to the Court’s competence ratione personae, this issue calls for consideration ex officio by the Court (see, for example, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).

12. In the present case, since the first applicant was not a party to the impugned domestic proceedings, he cannot claim to be a “victim”, within the meaning of Article 34 of the Convention, of the violation of the “reasonable time” requirement which had allegedly occurred during the proceedings at issue (see, mutatis mutandis, Milisavljević v. Bosnia and Herzegovina, no. 7435/04, § 23, 3 March 2009). It follows that, in so far as it has been introduced by the first applicant, the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

2. The second applicant

13. The Court notes that the second applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

14. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

15. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

16. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention in respect of the second applicant.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

17. The second applicant complained that the length of the proceedings complained of had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1.

18. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

19. Having regard to its finding under Article 6 § 1 (see paragraph 16 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 in respect of the second applicant (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194-C).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

21. The second applicant claimed 18,000 convertible marks (BAM - approximately EUR 9,200 euros (EUR)), in respect of non-pecuniary damage.

22. The Government contested this claim.

23. The Court considers that the second applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the second applicant EUR 2,400 under this head.

B. Costs and expenses

24. The second applicant also claimed BAM 19,740 (approximately EUR 10,100) for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

25. The Government contested this claim.

26. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 94, ECHR 2013 (extracts)). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.

C. Default interest

27. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application in respect of the second applicant admissible and the remainder of the application inadmissible;

2. Holds that there has been a breach of Article 6 § 1 of the Convention in respect of the second applicant;

3. Holds that there is no need to examine whether there has been a violation of Article 1 of Protocol No. 1 in respect of the second applicant;

4. Holds

(a) that the respondent State is to pay the second applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the second applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Carlo Ranzoni
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> PRAZINA v. BOSNIA AND HERZEGOVINA - 32228/11 (Judgment : Violation of Right to a fair trial - Administrative proceedings - Reasonable time)) [2017] ECHR 1099 (05 December 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/1099.html Cite as: CE:ECHR:2017:1205JUD003222811, [2017] ECHR 1099, ECLI:CE:ECHR:2017:1205JUD003222811