Rebac protiv Bosne i Hercegovine

FOURTH SECTION

CASE OF REBAC v. BOSNIA AND HERZEGOVINA

(Application no. 31832/20)

JUDGMENT 

STRASBOURG

26 March 2024

This judgment is final but it may be subject to editorial revision.

In the case of Rebac v. Bosnia and Herzegovina,

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

 Anja Seibert-Fohr, President,
 Faris Vehabović,
 Sebastian Răduleţu, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,

Having regard to:

the application (no. 31832/20) 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”) on 26 June 2020 by a national of Bosnia and Herzegovina and Croatia, Mr Marin Rebac, born in 1962 and living in Derventa (“the applicant”) who was represented by Mr D. Dabić, a lawyer practising in Orašje;

the decision to give notice of the complaint concerning the right to adversarial proceedings before the Constitutional Court to the Government of Bosnia and Herzegovina (“the Government”), represented by their Acting Agent, Ms J. Cvijetić, and to declare inadmissible the remainder of the application;

the Government’s observations;

Having deliberated in private on 5 March 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicant complained under Article 6 § 1 of the Convention about the fairness of Constitutional Court proceedings, because the Constitutional Court had not allowed him an opportunity to comment on observations filed by other participants in the proceedings.

2.  The impugned Constitutional Court proceedings concerned the right to liberty, the right to respect for the applicant’s private life and correspondence and the right not to be ill-treated. In accordance with Rule 23 of the Rules of the Constitutional Court, the Cantonal Prosecutor’s Office of the Posavina Canton and the Orašje Municipal Court submitted their observations. Since this was not envisaged by its Rules at that time, the Constitutional Court did not transmit them to the applicant. On 20 May 2020 it dismissed the case. With a view to harmonising its procedure with the case-law of this Court, in 2021 the Constitutional Court decided to start transmitting all observations to the appellants for comments.

THE COURT’S ASSESSMENT

1. ADMISSIBILITY
   1. Whether all domestic remedies have been exhausted

3.  The Government claimed that the applicant should have sought review of the Constitutional Court decision rendered in his case under Rule 68 of the Rules of the Constitutional Court. The Court has already held that the remedy to which the Government referred is an effective remedy in case of a mistake made by the Constitutional Court (see, for illustrative purposes, Tutundžić v. Bosnia and Herzegovina (dec.) [Committee], no. 44312/19, § 6, 28 February 2023). However, since the Rules of the Constitutional Court did not envisage, at the relevant time, that the appellants must have an opportunity to comment on observations filed by other participants in the proceedings (see paragraph 2 above), it is clear that the Constitutional Court did not make any mistake in the present case. Furthermore, the Government did not provide any case-law showing that the Constitutional Court had decided to review its decision in a similar case. The Court, therefore, concludes that the remedy in question was not an effective remedy which the present applicant had to use. Accordingly, the Court dismisses this Government’s objection.

2. Whether the applicant has suffered a significant disadvantage

4.  Turning to the Government’s second admissibility objection, the Court, referring to the principles established in its case-law regarding the notion of “significant disadvantage” (see Sylka v. Poland (dec.), no. 19219/07, § 27, 3 June 2014), disagrees with the Government that the applicant did not suffer any “significant disadvantage” for the purposes of Article 35 § 3 (b) of the Convention by the non-communication of the observations at issue. Whereas the non-communicated observations of the Orašje Municipal Court did not contain anything new or relevant to the case, the Prosecutor’s Office provided new information. It asserted that the applicant had in fact been proposed food at regular intervals during his police custody, but that he had refused several meals (notably, a burek, because he had allegedly not liked it, and a sandwich, because it had been made by a police officer). It referred, in that connection, to the custody record. Moreover, the Constitutional Court explicitly relied on that information in its decision (see Hrdalo v. Croatia, no. 23272/07, § 37, 27 September 2011; Maravić Markeš v. Croatia, no. 70923/11, § 52, 9 January 2014; Janáček v. the Czech Republic, no. 9634/17, § 52, 2 February 2023; and contrast Holub v. the Czech Republic (dec.), no. 24880/05, 14 December 2010). Accordingly, this objection of the Government must also be dismissed.

3. Conclusion

5.  The Court notes that the application is otherwise neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

2. MERITS

6.  In accordance with the Court’s well-established case-law, the concept of a fair trial comprises the fundamental right to adversarial proceedings. The right to adversarial proceedings means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision. This requirement may also apply before a constitutional court (see, for example, Gaspari v. Slovenia, no. 21055/03, § 50, 21 July 2009).

7.  The Government invited the Court to adopt a less strict approach by examining whether the applicant’s response could have had any influence on the impugned decision, like in Verdú Verdú v. Spain, no. 43432/02, §§ 27-28, 15 February 2007, and the authorities cited therein. The Court, however, first takes note of the special circumstances of that case and the explicit reference to those special circumstances in that case (see Verdú Verdú, cited above, § 28). It further observes that in its subsequent decisions it has confirmed its established case-law mentioned above (see Hudáková and Others v. Slovakia, no. 23083/05, §§ 28-29, 27 April 2010; Maravić Markeš, cited above, § 52; and Janáček, cited above, § 54).

8.  The Court cannot accept the Government’s contention that too strict an interpretation of the rule could contravene the principle of procedural economy and that it would place a disproportionate burden on the functioning of the Constitutional Court. As noted above, in this particular context all that the right to adversarial proceedings requires is for the parties to have the opportunity to have knowledge of and comment on all observations submitted, with a view to influencing the court’s decision. In practice it is just a matter of forwarding the observations of one party to the other party and setting a deadline for possible comments. This is a straightforward administrative act which will prolong the proceedings for several weeks at most. In this context the Court reiterates that the obligation to complete a trial within a reasonable time cannot be interpreted in such a way as would violate other procedural rights under Article 6 (see Nideröst-Huber v. Switzerland, 18 February 1997, § 30, Reports of Judgments and Decisions 1997-I, and BENet Praha, spol. s r.o. v. the Czech Republic, no. 33908/04, § 141, 24 February 2011).

9.  The Court has often found violations of Article 6 § 1 in cases raising issues similar to that of the present case (see, among many other authorities, Milatová and Others v. the Czech Republic, no. 61811/00, §§ 59-66, ECHR 2005‑V; Maravić Markeš, cited above, §§ 46-57; and Janáček, cited above, §§ 46-56). It considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in this case.

10.  Accordingly, the procedure followed did not enable the applicant to participate properly in the proceedings before the Constitutional Court and thus deprived him of a fair hearing within the meaning of Article 6 § 1 of the Convention. There has therefore been a violation of that provision.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

11.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 26 March 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Valentin Nicolescu                             Anja Seibert-Fohr
 Acting Deputy Registrar                  President