CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 octobre 2017

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BOSNIA AND HERZEGOVINA   (Application no. 61287/12)                   JUDGMENT         STRASBOURG   3 October 2017     FINAL   03/01/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Čović v. Bosnia and Herzegovina, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Iulia Motoc,   Carlo Ranzoni,   Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 12 September 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 61287/12) 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 citizen of Bosnia and Herzegovina, Mr Fadil Čović (“the applicant”), on 17 September 2012. 2.     The applicant was represented by Mr K. Kolić, a lawyer practising in Sarajevo. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić. 3.     The applicant alleged, in particular, that the proceedings for review of the lawfulness of his detention had not complied with the requirements of Article 5   §   4 of the Convention. He further complained under Article   5   §§   1   (c) and 3 that his detention had been arbitrary and its length unjustified. 4.     On 11 January 2016 the complaints under Article 5   §   4 and Article   5   §§ 1 (c) and 3 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54   § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1953 and lives in Hadžići. 6.     On 22 November 2011 the applicant was arrested and detained on suspicion of having committed war crimes against the civilian population and against prisoners of war during the 1992-95 war. 7.     On 23 November 2011 the State Court of Bosnia and Herzegovina (“the State Court”) reviewed and extended his detention based on the risk of his obstructing the course of justice by exerting pressure on witnesses and co-accused or by destroying evidence. On 1 December 2011 that decision was upheld by the Appeals Chamber of the State Court. 8.     On 21 December 2011 the State Court further extended the applicant’s detention on the same grounds as before. On 5 January 2012 that decision was upheld by the Appeals Chamber of the State Court. 9.     On 29 December 2011 the State Prosecutor issued an indictment against the applicant and seven other co-suspects, which was confirmed by the State Court on 10 January 2012. 10 .     Thereafter, the applicant’s detention was regularly examined and extended every two months by the State Court. In addition to those automatic reviews, the applicant repeatedly challenged his detention before the Appeals Chamber of the State Court. 11 .     On 23 February 2012 the applicant lodged a constitutional appeal, relying on Article II § 3.(d) of the Constitution (see paragraph 16 below) and Article 5 of the Convention. He alleged, in particular, that his detention had been arbitrary and excessive, and that it had not been based on relevant and sufficient reasons. 12 .     On 13 July 2012 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. Pursuant to Article VI § 4 of the Constitution (see paragraph 16 below) that decision was final. 13 .     On 1 November 2012 the State Court held that the grounds for the applicant’s continued detention had ceased to apply and released the applicant. By the same decision, the court imposed preventive measures on the applicant which included the following: a prohibition on leaving his place of residence without the prior approval of the State Court save for the purpose of appearing before that court; the duty to report once a week to the Hadžići police; a prohibition on associating with other co-accused and on associating or having contact with the witnesses. Furthermore, the applicant’s passport was seized. 14.     The preventive measures were reviewed and extended every two months. On 16 December 2015 they were revoked. 15.     At the date of the latest information available to the Court (22   July   2016), the criminal proceedings against the applicant were still ongoing. II.   RELEVANT DOMESTIC LAW A. Constitution of Bosnia and Herzegovina 16 .     The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace in Bosnia and Herzegovina) entered into force on 14 December 1995. The relevant part of the Constitution reads as follows: “Article II Human Rights and Fundamental Freedoms ... 2. International Standards   The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law. 3. Enumeration of Rights   All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights and fundamental freedoms referred to in paragraph 2 above; these include: ... (d) The rights to liberty and security of person. ... Article VI Constitutional Court 1. Composition   The Constitutional Court shall have nine members. (a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency. ... 2. Procedures (a) A majority of all members of the Court shall constitute a quorum. (b) The Court shall adopt its own rules of court by a majority of all members. It shall hold public proceedings and shall issue reasons for its decisions, which shall be published. 3. Jurisdiction The Constitutional Court shall uphold this Constitution. ... (b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina. ... 4. Decisions   Decisions of the Constitutional Court shall be final and binding.” B.     2003 Code of Criminal Procedure 17.     Article 137 § 1 of the 2003 Code of Criminal Procedure of Bosnia and Herzegovina ( Zakon o krivičnom postupku Bosne i Hercegovine , Official Gazette of Bosnia and Herzegovina (“OG BH”), nos. 3/03, 32/03, 36/03, 26/04, 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07, 53/07, 76/07, 15/08, 58/08, 12/09, 16/09, 93/09 and 72/13), provides that after an indictment has been lodged a judicial panel shall examine every two months whether the statutory conditions for detention continue to apply. A   defendant, defence counsel or the State Prosecutor may lodge an appeal against a decision to order, extend or lift detention (Articles 134, 135, 136 and 137 § 1 of the 2003 Code). C.     Rules of the Constitutional Court 18 .     Rule 40(2) of the Rules of the Constitutional Court in force at the relevant time (OG BH, nos. 60/05, 76/05, 64/08 and 51/09) provided that a plenary court made decisions by a majority of all its members. Rule   40(3) provided that when fewer than nine judges participated in a plenary session it was considered that an appeal was rejected unless a minimum of five judges voted identically on a proposal under discussion. Such a decision contained all the views expressed at the plenary session on the issues raised in a case and was final. A judge could not abstain from voting (Rule 41). 19.     On 1 April 2014 new Rules of the Constitutional Court entered into force (OG BH, nos. 22/14 and 57/14). Rule 42(5) thereof provides that when fewer than nine judges participate in a plenary session, unless a minimum of five judges vote identically on a proposal under discussion, the case shall be adjourned for a maximum period of six months; if after that period the same situation occurs, the President’s vote shall count for two votes. Other provisions concerning voting system remained unchanged. 20 .     Furthermore, Rule 68(2) of the new Rules provides for the reopening of the proceedings following a judgment in which the European Court of Human Rights found a violation of the right of access to a court before the Constitutional Court. In such a case, the Constitutional Court shall re-examine the case within three months of the date on which the European Court’s judgment became final, at the latest. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 21.     The applicant complained that the proceedings for review of the lawfulness of his detention before the Constitutional Court had not complied with the requirements of Article 5   §   4 of the Convention, which reads as follows: “4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.     Admissibility 1.     The Government’s objection of loss of victim status 22.     The Government argued that the applicant could no longer claim to be a victim of the alleged violation in view of the fact that he had been released from detention on 1 November 2012. 23.     The applicant disagreed. 24.     The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Nada v. Switzerland [GC], no.   10593/08, §   128, ECHR 2012; see also, concerning Article 5 of the Convention, Moskovets v. Russia , no. 14370/03, § 50, 23 April 2009). 25.     Turning to the present case, the Court notes that the applicant was still in detention when he lodged his constitutional appeal and when the Constitutional Court ruled on his case (see, mutatis mutandis , Reinprecht v.   Austria , no.   67175/01, § 51, ECHR 2005-XII). On 1 November 2012 he was released because the State Court held that the grounds for his continued detention had ceased to apply (see paragraph 13 above). Therefore, the Court notes that in this case there was neither any acknowledgement of the alleged breach of the applicant’s right to challenge the lawfulness of his detention nor any redress for it. The Government’s objection of loss of victim status must accordingly be dismissed. 2.     Other grounds for inadmissibility 26.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 27.     The applicant maintained that the rejection of his constitutional appeal because the Constitutional Court could not reach a majority had denied him an effective procedure by which to challenge the lawfulness of his detention as required by Article 5   §   4 of the Convention. 28.     The Government argued that the applicant’s detention had been regularly reviewed by the competent courts on their own motion every two months. The applicant had always been able to lodge an appeal with the Appeals Chamber of the State Court against every decision extending his detention and his appeals had been speedily decided. An appeal against the decision to extend the detention had indeed proved effective and led to the applicant’s release on 1 November 2012. 2.     The Court’s assessment 29.     The Court reiterates that the purpose of Article 5 § 4 is to secure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see De   Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 76, Series   A no.   12, and Ismoilov and Others v. Russia , no. 2947/06, § 145, 24   April   2008). A   remedy must be made available during a person’s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see Stoichkov   v.   Bulgaria , no. 9808/02, § 66 in fine , 24   March   2005). The accessibility of a remedy implies, inter alia , that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis , Čonka v.   Belgium , no. 51564/99, §§ 46 and 55, ECHR 2002-I). 30.     The Court observes that the applicant was able to lodge an appeal with the Appeals Chamber of the State Court against each decision of that court extending his detention. The domestic courts also periodically and automatically reviewed his detention and gave reasons for their decisions (see paragraph 10 above). The Court further observes that the Constitutional Court has appellate jurisdiction over issues under the Constitution arising out of a judgment of any other court in Bosnia and Herzegovina (see   Article   VI § 3 (b) of the Constitution, cited in paragraph 16 above). The   applicant lodged a constitutional appeal on 23 February 2012 challenging the lawfulness and length of his detention under Article II § 3 (d) of the Constitution and Article 5 of the Convention (see paragraph 11 above). However, his appeal was rejected, under Rule 40(3) of the Rules of the Constitutional Court which was in force at the relevant time (see paragraph   18 above), as a result of the Constitutional Court’s failure to reach a majority on the issues before it. That decision contained all the views expressed at the court’s session and was final (see paragraph 12 above). 31.     The Court notes that the same legal issue as the one raised in the present case was examined, in a different context, in an earlier case against Bosnia and Herzegovina (see Avdić and Others v. Bosnia and Herzegovina , nos. 28357/11, 31549/11 and 39295/11, 19 November 2013). In that case, which concerned civil and disciplinary proceedings, the Court held that the applicants had been denied access to a court in the proceedings before the Constitutional Court in breach of Article 6 § 1 of the Convention. The Court held in particular (ibid., § 37): “37. ... Although the impugned decisions were final, they did not involve a final ‘determination’ of the applicants’ civil rights and obligations. While the Constitutional Court took formal decisions on the applicants’ appeals, it effectively declined to decide on their admissibility and/or merits. The impugned decisions contained reasons both for and against the finding of a violation and the only reason why the applicants’ appeals were rejected was the court’s failure to reach a majority on any of the issues which would determine the applicants’ civil rights and obligations. In other words, there was no majority for either accepting or rejecting their appeals. When there is no real ‘determination’ of civil rights and obligations, the right of access to court remains illusory (see [ Marini v. Albania , no. 3738/02, §   122, 18 December 2007]). “ 32.     In this connection the Court reiterates that, according to its case-law, Article 5 § 4 enshrines, as does Article 6 § 1, the right of access to a court, which can only be subject to reasonable limitations that do not impair its very essence (see Shishkov v. Bulgaria , no. 38822/97, §§ 82-90, ECHR 2003-I, and Bochev v. Bulgaria , no. 73481/01, § 70, 13 November 2008). 33.     Furthermore, Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention and for hearing applications for release. Nevertheless, a State which institutes such a system must in principle accord detainees the same guarantees on appeal as at first instance (see, among other authorities, Kučera v. Slovakia , no. 48666/99, §   107, 17 July 2007, and the cases cited therein). The Court considers that the same applies in a system which provides for a constitutional complaint against decisions ordering and extending detention. 34.     In the present case, although the Constitutional Court took a formal decision on the applicant’s appeal, it effectively declined to decide on its admissibility and/or merits. The impugned decision contained reasons both for and against the finding of a violation and the only reason why the applicant’s appeal was dismissed was the court’s failure to reach a majority. Therefore, the Court finds that the issue of the constitutionality of the applicant’s detention was allowed to remain unaddressed. The Court considers that that situation had left the applicant without any final determination of his case and, accordingly, restricted the very essence of his right of access to a court. 35.     By dismissing the applicant’s appeal simply because it was unable to reach a majority on any of the proposals under consideration, the Constitutional Court failed to satisfy the requirement that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see, mutatis mutandis , Peša   v.   Croatia , no. 40523/08, §   126, 8 April 2010, and Getoš-Magdić v.   Croatia , no. 56305/08, § 106, 2   December 2010). Thus, it fell short of its obligation under Article 5 § 4 of the Convention to review the lawfulness of the applicant’s detention. There has accordingly been a violation of that provision. II.   ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 36.     The applicant further complained that his pre-trial detention had been arbitrary and excessively long. He relied on Article 5 §§ 1 and 3 of the Convention, the relevant part of which reads as follows: “1.   Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...   (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 37.     The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible. 38 .     However, having regard to its finding relating to Article 5 § 4 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 §§ 1 and 3 of the Convention. In this respect, the Court notes that the Constitutional Court is obliged to reopen the proceedings, under Rule 68(2) of its Rules, following a judgment in which this Court has found a violation of the right of access to a court before the Constitutional Court (see paragraph 20 above). In this connection the Court reiterates that in detention cases where an applicant is still in custody at the time of the examination of his appeals by the domestic courts, a complaint concerning access to a court is to be examined under Article 5   §   4 of the Convention (see, mutatis mutandis , Reinprecht , cited above, §§ 48, 52 and 55; see also, a contrario and mutatis mutandis , Lazoroski v. the former Yugoslav Republic of Macedonia , no. 4922/04, § 66, 8 October 2009, and Stephens v. Malta (no. 1) , no. 11956/07, § 103, 21   April 2009). Therefore, the Court is satisfied that the complaints under Article 5   §§ 1 and 3 of the Convention will be examined at the domestic level. In view of the existing domestic legal framework and the subsidiary role of the Convention mechanism, the Court considers that in the circumstances of the present case there is no need to examine these complaints separately. III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION 39.     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 40.     The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 41.     The Government considered the amount claimed unsubstantiated and excessive. 42.     Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 43.     Furthermore, the Court reiterates that a judgment in which it finds a   violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects. The respondent State remains, in principle, free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, mutatis mutandis , Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006 III, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 149, ECHR 2017 (extracts)). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (see Assanidze v.   Georgia [GC], no. 71503/01, § 202, ECHR 2004 ‑ II). 44.     However, in certain particular situations, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation that gave rise to the finding of a violation. In other exceptional cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Assanidze , cited above, § 202, and Del Río Prada v. Spain [GC], no. 42750/09, § 138, ECHR 2013). Having regard to its finding in the instant case, the Court considers that it belongs to this last-mentioned category. Therefore, the respondent State must secure the re-examination of the applicant’s case before the Constitutional Court in accordance with Rule 68(2) of the Rules of the Constitutional Court (see paragraphs 20 and 38 above). B.     Costs and expenses 45.     The applicant also claimed EUR 1,054.55 for the costs and expenses incurred before the Court. He submitted an invoice for translation services for the sum of EUR 61.35. 46.     The Government considered the amount claimed unsubstantiated and excessive. 47.     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 to say, 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 breaches 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 Rule 60 of the Rules of Court). 48.     In the present case, the Court notes that the applicant did not submit any evidence (bills or invoices) about the costs and expenses incurred, save for the invoice for translation services. Therefore, the Court considers it reasonable to award the sum of EUR 61.35 under this head, plus any tax that may be chargeable to the applicant on that amount. C.     Default interest 49.     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 admissible;   2.     Holds that there has been a violation of Article 5 § 4 of the Convention;   3.     Holds that there is no need to examine whether there has been a violation of Article 5 § 1 of the Convention;   4.     Holds that there is no need to examine whether there has been a violation of Article 5 § 3 of the Convention;   5.     Holds (a)     that the respondent State is to secure the re-examination of the applicant’s case before the Constitutional Court under Rule 68(2) of its Rules, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention and, within the same time-limit, to pay the applicant the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement: (i)     EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 61.35 (sixty-one euros and thirty-five cents), plus any tax that may be chargeable to the 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;   6.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 3 October 2017, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Andrea Tamietti   Ganna Yudkivska Deputy Registrar   President