DAMJANOVIC AND EUROMAG D.O.O. v. BOSNIA AND HERZEGOVINA - 17248/11 (Judgment : Violation of Right to a fair trial - Reasonable time)) [2017] ECHR 954 (31 October 2017)

In the case of Damjanović and Euromag D.O.O. 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 10 October 2017,

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

PROCEDURE

1. The case originated in an application (no. 17248/11) 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 a national of both Bosnia and Herzegovina and Serbia, Mr B. Damjanović (“the first applicant”) and by a company registered in Bosnia and Herzegovina, Euromag d.o.o. (“the second applicant”) on 30 December 2010.

2. The applicants were represented by Mr Lj. Živadinović, a lawyer practising in Belgrade. 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.

4. The Serbian Government were also notified of the application but did not exercise their right under Article 36 § 1 of the Convention and Rule 44 of the Rules of Court to intervene in the proceedings.

THE FACTS

5. The first applicant was born in 1955 and lives in Belgrade, Serbia. The second applicant is a privately owned company, founded by the first applicant in 1990, with its registered seat in Ilijaš - Podlugovi, Bosnia and Herzegovina.

6. On 19 December 2001 the second applicant requested a licence to build a petrol station on the main highway in Bosnia and Herzegovina.

7. On 21 October 2002 the Federal Road Directorate of Bosnia and Herzegovina (“the Directorate”) rejected the request. The second applicant appealed on 31 October 2002.

8. On 28 February 2003 the Federal Ministry upheld that decision.

9. On 28 March 2003 the second applicant initiated proceedings for judicial review before the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”).

10. On 25 August 2005 and 24 August 2006 the second applicant urged the Supreme Court to expedite the proceedings.

11. On 22 November 2006 the Supreme Court quashed the decisions of 21 October 2002 and 28 February 2003 (see paragraphs 7-8 above) on procedural grounds, and remitted the case to the Directorate.

12. On 9 May 2007 the second applicant informed the Supreme Court that the decision of 22 November 2006 had not been enforced yet.

13. On 16 August 2007 the Directorate rejected the second applicant’s request. On 30 August 2007 the second applicant appealed.

14. On 8 November 2007 the second applicant complained to the Administrative Inspectorate of the Federal Ministry of Justice about the inaction of the administration.

15. On 12 November 2007 the Federal Ministry upheld the decision of 16 August 2007 (see paragraph 13 above). The decision was served on the second applicant on 18 April 2008.

16. On 30 May 2008 the second applicant initiated proceedings for judicial review with the Supreme Court seeking it to quash the decisions of 16 August 2007 and 12 November 2007 (see paragraphs 13 and 15 above). On 31 August 2009 the Supreme Court referred the claim to the Mostar Cantonal Court, as the competent court.

17. On 27 November 2009 the Mostar Cantonal Court rejected the application for judicial review.

18. On 6 January 2010 the applicant submitted a request for an extraordinary review of the decision of 27 November 2009 with the Supreme Court, which request was rejected as unfounded on 12 May 2010. That decision was served on the second applicant on 9 July 2010.

19. On 6 September 2010 the second applicant lodged a constitutional appeal before the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) complaining, notably, about the length of the above administrative proceedings.

20. On 23 December 2013 the Constitutional Court rejected the appeal as unfounded. It noted that the relevant proceedings had lasted eight years and five months in total, that seven different decisions had been rendered by the competent authorities and that, therefore, the length of the proceedings had not been excessive.

THE LAW

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

21. The applicants complained that the length of the administrative proceedings in question had been incompatible with the “reasonable time” requirement. They relied on Article 6 § 1 of the Convention, which 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 ...”

22. The Court notes that the proceedings started on 31 October 2002 when the second applicant lodged an appeal against the decision of 21 October 2002 (see paragraph 7 above), and ended on 9 July 2010 when the last decision in the administrative proceedings was served on the second applicant (see paragraph 18 above). They thus lasted more than seven years and eight months before two levels 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

23. Although the respondent State 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).

24. The Court recalls that disregarding a company’s legal personality is justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for a company to apply to the Court through the organs set up under its articles of incorporation or - in the event of liquidation - through its liquidators (see Agrotexim and Others v. Greece, 24 October 1995, § 66, Series A no. 330-A, and Samardžić and AD Plastika v. Serbia, no. 28443/05, § 30, 17 July 2007).

25. In the present case, the second applicant applied to the Court through its director, whereas the first applicant, although one of the founders of the company, was not a party to the domestic proceedings.

26. Consequently, the first applicant 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. It follows that this aspect of the case 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

27. 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

28. 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).

29. 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).

30. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

31. 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

32. The second applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary damage.

33. The Government considered the sum requested to be excessive.

34. The Court recalls that it cannot exclude the possibility that a commercial company may be awarded pecuniary compensation for non-pecuniary damage (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV). Having regard to the circumstances of the present case, it considers that the second applicant, although a legal entity, must have sustained such damage. It therefore awards it EUR 2,100 under this head, plus any tax that may be chargeable.

B. Costs and expenses

35. The second applicant claimed EUR 2,847 for the costs and expenses incurred before the domestic courts and EUR 3,197 for the costs and expenses incurred before the Court.

36. The Government contested this claim.

37. 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 plus any tax that may be chargeable to the second applicant, covering costs under all heads.

C. Default interest

38. 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;

3. 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 2,100 (two thousand one 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;

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

Done in English, and notified in writing on 31 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Carlo Ranzoni
Deputy Registrar President

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