ii. Proceedings related to the “determination” of civil rights and obligations

Article 6, paragraph 1 of the ECHR is applicable only to proceedings determining a person’s “civil” rights or obligations, or any criminal charge against a certain person.⁹¹⁴ This is one of the essential requirements for the application of Article 6, paragraph 1 of the ECHR. In this respect, it is irrelevant whether proceedings are classified as civil or criminal by the domestic legal order. Actually, it is essential that the proceedings, under the substantive criteria, “determine” the “civil” rights or obligations or any criminal charge. This may also be the case in proceedings, which, under domestic law, are not defined as civil but, for example, as administrative proceedings. However, the effect of such proceedings must have a sufficiently strong connection with the civil rights and obligations or ought not to have irrelevant effects on such rights and obligations but have to determine them directly. Therefore, the “civil” rights or obligations must be the only or one of the relevant matters of the proceedings.⁹¹⁵ In addition, the extent and manner to which Article 6 is applicable depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted under the domestic legal order.⁹¹⁶ When perceived in such a fashion, any criminal charge filed against a person may be determined also in disciplinary proceedings, also by applying Article 6.⁹¹⁷

Furthermore, the constitutional and legal review of the regularity of the proceedings may be conducted, as a rule, only once the court judgment completing certain proceedings has become legally binding.⁹¹⁸ If an appellant, in general, complains of a violation of the right to a fair trial, the appeal shall be premature if the highest court passes the challenged decision and refers the case back to the lower court for renewed proceedings. In such a case, it is necessary that the proceedings as a whole are concluded.⁹¹⁹ Consequently, an issue as to the fairness of the proceedings must be assessed based only on the proceedings as a whole.⁹²⁰ If the competent court decides only on the justification of the decision ordering detention for a certain person, the court does not decide on “any criminal charge against him”, within the meaning of the ECHR and, therefore, any reference to a violation of Article 6 of the ECHR is premature.⁹²¹ If the appellant is actually never brought before the court i.e., put on trial, such proceedings are not relevant as to Article 6, paragraph 1 of the ECHR.⁹²² The same applies in the case of a subsidiary prosecutor where the State Prosecutor’s Office discontinues the criminal proceedings against a certain person.⁹²³

In addition, a legally binding procedural or substantive partial decision in criminal proceedings does not fall within the ambit of Article 6, paragraph 1 of the ECHR. Thus, for instance, if the court first takes a final decision on the territorial jurisdiction of the court,⁹²⁴ or it decides on the real jurisdiction of an administrative body,⁹²⁵ the court does not decide, taking into account the proceedings as a whole, on the “civil” rights or obligations, i.e., on any criminal charge, as the court decides only about the procedural requirements for further proceedings. Such proceedings do not come within the scope of Article 6 of the ECHR (incompatible ratione materiae).

Likewise, the provisional decisions are excluded from the safeguards of Article 6 of the ECHR, given that those decisions, only temporarily and not finally, mostly pending a completion of the main issue, determine a “civil” right or obligation i.e., any criminal charge. In general, these include proceedings on the interim measures,⁹²⁶ or proceedings on the interim safety measures.⁹²⁷ However, there are exceptions to this rule, which should encompass those cases wherein a provisional decision should produce permanent effects: in the case that a request for interim measures is not identical to the main request (and both have to be characterised as civil) and if damage, which may occur if the request for interim measures is dismissed, could not be redressed by a legally binding decision, then Article 6 of the ECHR safeguards the proceedings initiated upon a request for interim measures.⁹²⁸ Exceptionally, the Constitutional Court also applied Article 6 of the ECHR in Case No. AP 743/04. This case concerns the reasonableness of the length of civil proceedings related to the decision on interim measures suspending the enforcement of the legally binding administrative decision granting repossession of the apartment.⁹²⁹ Likewise, the decision in criminal proceedings conducted upon a request for safety measures (which is of a civil nature) also falls within the scope of Article 6 of the ECHR.⁹³⁰

In cases where a certain decision affects a person’s “civil” rights or obligations only indirectly, such a decision does not fall within the scope of Article 6 of the ECHR. Thus, for instance, the proceedings related to the registration of certain legal data: U 20/01: removal from the court register of the person authorised to represent the company; similarly, in case AP 1078/05: the registration of the person authorised to represent the company; U 13/00: the registration of transfer of ownership; AP 1489/05: the registration of a dispute in the land books; AP 854/04 and AP 441/06: the registration of the ownership right in the land books;⁹³¹ however, it is different in proceedings challenging the validity of one’s registration in the land books where the relevant issue comes within the scope of Article 6 of the ECHR: AP 869/04, paragraph 30); AP 1509/05: the establishment of criteria for registration of the ownership right in the land books.

Besides, Article 6 of the ECHR does not apply to proceedings related to the obtaining of evidence.⁹³² Furthermore, if the criminal proceedings against a certain person are suspended as a consequence of amnesty declared for the criminal offence the accused person is charged with, such proceedings do not determine the justification of a criminal charge.⁹³³ As to the proceedings related to the recognition of a foreign judgment determining a person’s civil rights, the Constitutional Court first denied that it related to proceedings determining one’s civil rights or obligations within the meaning of Article 6 of the ECHR.⁹³⁴ Subsequently, the Court nevertheless corrected its legal position and concluded that Article 6 of the ECHR was applicable to the proceedings to recognise foreign judgments in case one’s civil rights or obligations were determined by such judgments, although, strictly speaking, such proceedings do not concern the establishment but recognition of the already determined civil rights or obligations.⁹³⁵ This correction of the case-law is commendable as the exequatur proceedings are necessary for recognition and enforcement of foreign judgments in Bosnia and Herzegovina, although these proceedings, per se, indeed, cannot be identified as the determination of a person’s right but the determination of applicability of a foreign judgment in the country. Therefore, de facto it relates to the proceedings determining a person’s civil rights or obligations, which have to comply with the standards of Article 6 of the ECHR. Next, although bankruptcy proceedings, per se, are not a civil “dispute”, such proceedings provisionally regulate the issue of the existence of these rights and, therefore, Article 6 of the ECHR should be applied.⁹³⁶

Any civil rights or obligations, or any criminal charges against a person are not decided in proceedings deciding the admissibility of a certain legal remedy. Consequently, a violation of Article 6 of the ECHR cannot be established in proceedings deciding the admissibility of a request for extraordinary review in a civil case⁹³⁷ or in a criminal case,⁹³⁸ which is concluded by a legally binding decision, as well as in the case of deciding the admissibility of a request to restore the original condition,⁹³⁹ or a request for renewed proceedings in a civil case⁹⁴⁰ or in a criminal case,⁹⁴¹ or a petition to reopen/to renew the proceedings in a criminal case.⁹⁴² Nevertheless, where significant deficiencies have been identified, even a procedural decision on renewed criminal proceedings may be construed as the determination of the criminal charge in terms of Article 6, paragraph 1 of the ECHR, if the court conducted certain evidentiary proceedings and re-established the facts on the basis of new evidence and, actually, upheld once again the previous conviction and sentence.⁹⁴³ In this case, HRC for BiH departed from its case-law previously established in Case No. CH/97/61-D,⁹⁴⁴ which strictly relied on the jurisprudence of the European Court. The Chamber upheld such an approach, which is apparently more contemporary than the jurisprudence of the European Court, and, in another case, it publicly deviated from the Strasbourg case-law.⁹⁴⁵ Furthermore, Article 6 of the ECHR does not apply to proceedings deciding a petition for the protection of legality, and not only because such proceedings relate to the decision on admissibility of a legal remedy but because an injured party, i.e., a right holder or a holder of the obligation, is entitled only to an initiative and is not entitled to pursue the legal remedy. A decision to pursue a legal remedy is left to the discretion of the competent public Prosecutor’s Office.⁹⁴⁶ The same applies to the inspection proceedings where an individual, also, is entitled only to an initiative and cannot demand that the proceedings be instituted. Besides, in inspection proceedings, the rights of the person who requested the inspection proceedings are not decided but rather those of the third party obligations (for example, an obligation to pull down an unlawfully erected brick fence). However, the inspection proceedings may help a party damaged by the third party’s acts or failure to act. Yet, the rights of an injured party are not decided in such proceedings.⁹⁴⁷ In addition, the court decision asserting that the court is not competent to decide the relevant matter does not determine a civil right or obligation, or any criminal charge.⁹⁴⁸ Nevertheless, in case the legal remedies are declared admissible by the relevant decision and that the competent authority re-determines the civil right or obligation, or the criminal charge, such a decision falls within the ambit of Article 6 of the ECHR.⁹⁴⁹

Article 6 of the ECHR is not applicable if the proceedings are discontinued and not completed by a decision on the merits, as, for instance, in cases where the criminal proceedings are discontinued as a result of a statute of limitations for criminal prosecution⁹⁵⁰ or in case the proceedings are terminated.⁹⁵¹ Only under exceptional circumstances and if there are strong indications that a fault in the proceedings at an earlier stage cannot be remedied at a later stage, may the proceedings be examined before their conclusion in respect of a possible violation of Article 6 of the ECHR.⁹⁵² The Constitutional Court has found such an exception in cases Nos. U 59/01, U 60/01 and U 61/01, which all carried political weight. In the mentioned cases, the appellants addressed the Constitutional Court at an earlier stage, complaining of a violation of Article 6 of the ECHR and claiming immunity against criminal prosecution.⁹⁵³

A decision on a civil right or obligation, or a criminal charge, in terms of Article 6, paragraph 1 ECHR, in certain cases, may also be taken in the course of the enforcement proceedings related to the legally binding court judgment (by which a civil right or obligation, or a criminal charge has already been determined).⁹⁵⁴ Otherwise, in the case that the protection of Article 6 of the ECHR was completely excluded from the enforcement proceedings, the guarantees given in the course of the decision-making process would often have no effect.⁹⁵⁵ In fact, the enforcement proceedings are an integral part of the proceedings on the merits. However, under the European Court’s case-law and the case- law of the former European Commission for Human Rights, this conclusion is applicable only if it is claimed that the enforcement proceedings have exceeded a reasonable time,⁹⁵⁶ as well as in the case that a civil right or obligation, or any criminal charge in terms of Article 6, paragraph 1 of the ECHR is re-determined in the course of enforcement proceedings.⁹⁵⁷ The meaning of redetermination is to be assessed on the basis of specific features of each individual case. At any rate, Article 6 of the ECHR is not applicable to the enforcement proceedings going through their normal course of development, including, also, any possible difficulties, such as, for instance, in the case of a blocked account of the debtor,⁹⁵⁸ in the case of a debtor’s insolvency,⁹⁵⁹ or where the enforcement court ordered the payment of a debt instead of the sale of a debtor’s property.⁹⁶⁰ Also, in the opposite case, i.e., where the economic situation is changed in favour of a creditor, a debtor does not enjoy the protection of Article 6, paragraph 1 of the ECHR.⁹⁶¹ Contrary to these cases, the civil rights, which have already been determined by a final decision, are re-determined in enforcement proceedings within the meaning of Article 6, paragraph 1 of the ECHR, if the executive or legislative authorities, by enacting the law, prevent or postpone indefinitely the enforcement of legally binding court judgments against the budget.⁹⁶² In such cases, the legislative authorities must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.⁹⁶³ The legislature must be particularly watchful of situations where, in this manner, third-party rights and interests are involved, such as, for instance, in the case of the sale of marital property of a debtor⁹⁶⁴ or in the case of the sale of a third-party property which includes the debtor’s share.⁹⁶⁵ The third situation where Article 6 of the ECHR applies to enforcement proceedings – apart from a breach of the reasonable time requirement in enforcement proceedings and redetermination – the Constitutional Court views as the arbitrary application of laws.⁹⁶⁶

The proceedings instituted upon request for renewed criminal proceedings for the purpose of pronouncing a flat sentence of imprisonment in accordance with legally binding judgments, constitute an entirety together with the proceedings in which criminal liability was determined and a single sentence was pronounced, i.e., such proceedings constitute part of the “determination” and, therefore, the principles of the right to a fair trial are guaranteed in such proceedings.⁹⁶⁷

If the appellant, before the Constitutional Court, challenges a procedural decision taken in inheritance proceedings, the appellant, for the purpose of applying Article 6, paragraph 1 of the ECHR, must prove that the relevant proceedings concerned a dispute over the civil right and the determination thereof. As to this issue, the case-law of the highest courts varies. Firstly, the objective of inheritance proceedings does not have to be the determination of an issue in terms of Article 6, paragraph 1 of the ECHR. The challenged factual or legal issues may be the subject matter of parallel civil proceedings, the outcome of which may be significant for the very inheritance proceedings.

In such a case, both proceedings must be regarded in their entirety, which may be subject to review in appellate proceedings before the Constitutional Court.⁹⁶⁸ If the appellant failed to avail himself of the civil proceedings to resolve an issue disputable in respect of the inheritance proceedings, a procedural decision taken in inheritance proceedings is insufficient in order for Article 6 of the ECHR to be applicable since the relevant proceedings did not dispute i.e., determine a civil right.⁹⁶⁹ The same may be concluded in respect of the proceedings instituted for the purpose of obtaining a supplementary decision on inheritance.⁹⁷⁰ Contrary to the said case-law, the Constitutional Court, in Case No. AP 1129/04, declared the appeal admissible and decided on the merits of the case, which also related to the inheritance proceedings challenged for an alleged violation of the rights protected under Article 6 of the ECHR.⁹⁷¹ In Case No. 1675/05, the Constitutional Court declared the appeal, lodged against the procedural decision on inheritance, manifestly ill-founded for the appellant’s failure to refer to Article 1 of Protocol No. 1 to ECHR, but the Constitutional Court did not declare it inadmissible ratione materiae. The Human Rights Commission within the Constitutional Court of BiH regarded inheritance proceedings as the proceedings that may give rise to an issue related to civil rights within the meaning of Article 6 of the ECHR, namely, whether or not a person has a right to inherit.⁹⁷²

Starting from its linguistic meaning, Article 6, paragraph 1 of the ECHR guarantees the fair trial rights of the accused. Therefore, protection afforded by Article 6, paragraph 1 of the ECHR does not extend to proceedings initiated by a person against a third party or to a request filed to a public Prosecutor’s Office to initiate such proceedings.⁹⁷³ Consequently, Article 6, paragraph 1 of the ECHR does not guarantee the right to a fair trial of third parties – or of an injured party, his/her relatives (in the capacity of subsidiary prosecutors) or of the public – in the context of the requirement that the accused must be justly punished or that the accused, because of the faults of the proceedings or an arbitrary decision, must not be exempted from criminal liability. It follows that Article 6, paragraph 1 of the ECHR does not afford protection against a court decision by which a person is absolved from criminal liability in an arbitrary manner. According to this case-law, an appellant, who is a relative of an injured party, claiming in the appeal that he/she was unlawfully denied the right to participate effectively in the criminal proceedings in the capacity of a subsidiary prosecutor, cannot claim a violation of Article 6, paragraph 1 of the ECHR.⁹⁷⁴ Namely, these types of cases do not concern the determination of a “criminal charge” of an injured party or of his/her relative (within the meaning of Article 6, paragraph 1 of the ECHR), but they concern only the accused and, therefore, the guarantees of Article 6 of the ECHR are applicable only to the accused.⁹⁷⁵ Consequently, a victim tortured by police officers has no possibility, under Article 6 of the ECHR or other protected rights enumerated in Annex 6 of GFAP, to complain against apparent irregularities made in favour of the accused.⁹⁷⁶ Moreover, Article 6 of the ECHR does not apply to an injured party even where domestic law provides a victim with the right to participate in criminal proceedings as an injured party, since this is not a right guaranteed by the ECHR, but by domestic law.⁹⁷⁷ However, it is different where a decision on justification of a charge against a person is, in terms of Article 6, paragraph 1 of the ECHR, at the same time, decisive for a civil claim of a third party, for instance, of an injured party’s claim or his/her relative’s compensation claim against a perpetrator of a crime.⁹⁷⁸ Judges of Human Rights Chamber for BiH Masenko-Mavi, Grasso and Aybay disagreed with the majority opinion according to which an injured party, i.e., a victim does not enjoy any protection under Article 6 of the ECHR. In their view, the injured party must enjoy the guarantees of Article 6, paragraph 1 of the ECHR because an injured party (a victim), according to the domestic law, in fact, joins the criminal prosecution as a party entitled to compensation for the injury caused by the crime at issue. In other words, in these types of proceedings, the “civil rights” are being determined within the meaning of Article 6, paragraph 1 of the ECHR.⁹⁷⁹ Yet, the impossibility to protect a victim against arbitrary decisions of criminal courts, in terms of the guarantees of Article 6, paragraph 1 of the ECHR, is alleviated by the fact that the protection is afforded by other provisions of the ECHR. Namely, such a case would relate to a breach of the right to respect for family life of a victim’s close family member⁹⁸⁰ and a breach of the right prohibiting inhuman treatment.⁹⁸¹