iii. “Civil” Claim

AP 1/03 S. B.	20040615
AP 100/04 Trade Union “Doboj-putevi” et al.	20050422
AP 102/03 M. K.	20041014
AP 1028/04 Čejević	20050212
AP 1029/04 M. P.	20050615
AP 1044/04 M. M.	20050426
AP 1071/04 Dupčanin	20051013
AP 1071/04 Dupčanin	20051013
AP 1080/04 Divčić	20051117
AP 1111/05 Opština Grude	20060509
AP 1115/04 Arsenić	20051117
AP 1118/04 Đ. Đ.	20050615
AP 1150/05 Prnjić-M. Lukić	20060613
AP 116/02 R. R.	20040929
AP 1175/06 Pejić	20060920
AP 1180/05 Begić	20060209
AP 1189/05 Karaica	20060412
AP 1193/05 Suljagić	20060627
AP 120/04 R. Z.	20041209
AP 1205/05 Bašić	20060412
AP 121/04 E. P.	20050412
AP 1232/05 Karić	20060509
AP 127/02 „Krajina-auto“ a.d. Banja Luka	20040517
AP 128/06 „Hermetički kompresori“ d.o.o.	20080110
AP 1294/05 Brulić	20060613
AP 1338/05 Zijadić	20060627
AP 1427/05 SUR. „Student“	20060627
AP 1509/05 Šakan et al.	20060920
AP 156/05 T. K.	20050518
AP 1605/05 M. i Z. Cirić	20061020
AP 1788/05 Atmani	20060920
AP 189/02 R. D.	20040630
AP 1929/05 District Brčko of BiH	20060912
AP 21/02 F. S.	20040517
AP 211/05 Tvico	20060412
AP 2144/05 „Hercegovac“	20061020
AP 220/05 Vrdoljak	20060314
AP 227/04 J. Č.	20041014
AP 233/03 B. D.	20041130
AP 2348/05 Anita et al. Blatešić	20060929
AP 2363/05 „FEAL“ d.o.o. Široki Brijeg	20060708
AP 2367/06 Omerović	20060920
AP 2367/06 Omerović	20060929
AP 244/05 „Dale Jemes Baumgardner“	20060209
AP 2467/05 Novaković	20061020
AP 2618/05 Agency for Privatisation, Banja Luka	20061109
AP 2679/06 „DEPOS“	20060920
AP 285/03 „Kalen“ d.o.o. Zenica	20040723
AP 289/03 Pilić et al.	20041119
AP 289/04 Đ. O.	20041130
AP 311/03 N. E.	20041014
AP 311/04 A. G.	20040422
AP 322/04 M. K.	20041119
AP 334/06 N. B. et al.	20060920
AP 35/03 „SDP BiH“	20060929
AP 365/04 B. B.	20050217
AP 39/03 Herzegovina-Neretva Canton	20040227
AP 393/04 M. B.	20050412
AP 397/04 M. T.	20050615
AP 422/04 B. G.	20050518
AP 452/04 M. G.	20050412
AP 483/03 I. H.	20040929
AP 490/05 Prpić	20060509
AP 510/04 I. G.	20050420
AP 518/04 S. L.	20050412
AP 545/03 I. H.	20041217
AP 558/04 M. K.	20050217
AP 585/05 Kordić	20060509
AP 623/04 „Destilacija“ a.d.	20050518
AP 640/04 Krištić	20050913
AP 642/04 Talam	20051202
AP 643/03 „Bomi Frist” d.o.o.	20040929
AP 644/04 L. K.	20050412
AP 645/04 Jovičić	20051202
AP 669/03 „Razvitak” d.d. Gradačac	20040317
AP 682/04 R. A.	20050615
AP 691/04 H., A. i A. V. et al.	20050628
AP 700/05 Stanić	20060412
AP 71/02 J. Z.	20040428
AP 72/06 Piljić	20060912
AP 731/04 A. M.	20050615
AP 75/03 „Jodex” d.o.o.	20040317
AP 807/04 Ilijašević	20050913
AP 825/04 „Mepros“ d.d.	20050913
AP 83/03 S. M.	20040929
AP 830/04 M. G.	20050128
AP 836/04 Popović	20071117
AP 862/04 Pavlović	20060314
AP 869/04 M. Ž.	20050225
AP 870/04 „NCO“ d.o.o	20050207
AP 886/06 Kovačević	20080110
AP 912/04 APRO „Sunce“ d.d. Neum	20060401
AP 914/04 M. P. et al.	20050412
AP 93/05 Mihajlović	20060223
AP 947/05 Ninković	20060209
AP 950/05 J. S.	20050913
AP 963/04 Sadiković	20051117
AP 963/05 S. P.	20050722
AP 965/04 Lj. R.	20050615
AP 972/04 Bojanić et al.	20050913
CH/00/3615 Jotić	20051109
CH/00/4636 Kuduzović	20060801
CH/00/4784 Hodžić	20070605
CH/00/5134 Škrgić et al.	20020208
CH/00/5764 Džebo	20070626
CH/00/5901 Klub penzionera	20060703
CH/00/7018 Momić	20050208
CH/01/6796 Z. Halilagić	20010307
CH/01/7248 D&M Ordo	20020705
CH/01/7309 Kasumović	20061219
CH/01/7382 Hrapović	20050905
CH/01/7464 Đulabić	20061219
CH/01/7635 Delić	20051005
CH/01/7701-A&M The BiH Islamic Community Council (the Mrkonjic Grad Mosques case)	20031222
CH/01/7979 Hidanović	20060405
CH/01/8507 Softić	20051215
CH/01/8529 Marijanović	20030205
CH/018518 Gazdić	20070207
CH/02/10476 Z. Lugonjić	20030401
CH/02/10569 Kalaba	20070207
CH/02/11114 Jakovljević	20070605
CH/02/11179 Sadžak	20050510
CH/02/12380 Lagumdžija	20060111
CH/02/12389 A. J.	20061219
CH/02/12468 et al.-Kadrić et al.	20050207
CH/02/12546 Čustović	20060705
CH/02/13640 Delić	20060508
CH/02/8724 Murgić	20050118
CH/02/8750 Dizdarević	20061219
CH/02/8754 Beganović	20060801
CH/02/8961 D&M Ait Idir	20030404
CH/02/9412 Mihajlović	20061219
CH/03/13051 D&M S. S.	20031107
CH/03/13640 Čuković	20050118
CH/03/14114 Martinović	20070508
CH/03/14212 D&M Syla	20031222
CH/03/14599 Drašković	20060206
CH/03/14958 Grabovac	20060913
CH/03/14986 Koštić	20060911
CH/03/14991 Školjić	20050510
CH/03/15183 Malić	20061106
CH/97/76 D&M Softić	20011012
CH/98/1309 et al.-D&M Kajtaž et al.	20010907
CH/98/166 D&M Bjelonja	20030207
CH/99/1427 Safić	20050606
CH/99/1838 et al.-D&M Karan et al.	20030704
CH/99/2503 Kubur	20060111
CH/99/2743 D&M Sarač	20030704
CH/99/2763 Halilović	20051107
CH/99/3375 D&M E. Ž.	20031205
U 104/03 K. M.	20040419
U 109/03 S. B.	20040517
U 128/03 „Kućni savjet“	20040922
U 18/00 Hajdarević	20021019 OG of BiH, No. 30/02
U 2/99 Kadenić & Mesinović	19991122 OG of BiH, No. 20/99
U 27/01 HA-EMM	20020423 OG of BiH, No. 08/02
U 3/01 „Čajavec holding“ et al.	20020312 OG of BiH, No. 05/02
U 3/99 H.D.	20000810 OG of BiH, No. 21/00
U 35/03 Z. G.	20040721
U 39/00 Assembly of Herzegovina-Neretva Canton	20010926 OG of BiH, No. 24/01
U 39/03 S. A.	20040130
U 47/02 BAZ AGRO d.o.o. Mostar	20040121
U 5/00 Elezović	20010119 OG of BiH, No. 01/01
U 55/01 Fifić	20020829 OG of BiH, No. 24/02
U 58/01 R. R.	20031229 OG of BiH, No. 43/03
U 6/00 Dolinić et al.	20020524 OG of BiH, No. 10/02
U 6/98 Jurić	19991122 OG of BiH, No. 20/99
U 63/02 BAZ MP d.o.o. Mostar	20040121
U 65/02 Dž. A.	20031229 OG of BiH, No. 43/03
U 66/03 A. B.	20040721
U 7/99-1 Smajić	20000131 OG of BiH, No. 03/00
U 70/03 K. M.	20040130
U 8/00 Hreljić	20000818 OG of BiH, No. 22/00

Article 6, paragraph 1 of the ECHR applies to disputes either between two private individuals or between a private individual and the State, the result of which is decisive for civil rights and obligations.⁹⁸² Considering that the notion “civil”, within the meaning of Article 6, paragraph 1 of the ECHR, is independent of a definition in the domestic legislation, the domestic legal system of the State, however, may be taken as a starting point for deciding the legal nature of the dispute. Substantive criteria as well as the effects of the right, of itself, are of great significance for an individual.⁹⁸³ In addition, it is necessary to compare the legal systems of other states in order to investigate whether or not there is a specific notion of “civil rights and obligations”, which encompasses the substratum of a particular case.⁹⁸⁴ In a “grey zone” between public and private rights, i.e., in administrative proceedings which also result in civil rights violations, for Article 6, paragraph 1 of the ECHR to be applied it does not suffice that such proceedings have little relevance to or only insignificant effects on civil rights and obligations; it is essential that a civil right or obligation, of itself, is the only or one of the only subject-matters of the dispute, i.e., the proceedings, so that the result of these proceedings directly determines the relevant civil right or obligation.⁹⁸⁵ This is the case where, for instance, de-expropriation, i.e., the return of expropriated property is to be decided in administrative proceedings.⁹⁸⁶

The effect of the Constitutional Court’s request, according to which the State must secure minimum procedural guarantees, including judicial review and the right of any party to participate in proceedings, irrespective of the legal nature of the claim in question, i.e., no matter whether it concerns civil rights or obligations, or a public claim, is unclear.⁹⁸⁷ It is “unclear” given that the Constitutional Court, after its Decision of 28 March 2003, rejected, on formal grounds, numerous appeals related to a breach of Article 6 of the ECHR in public disputes.⁹⁸⁸ In the following text, a systematic review of and guide to the case-law of the BiH Constitutional Court, the Human Rights Chamber for BIH and the Human Rights Commission within the BiH Constitutional Court relating to the rights and obligations defined as “civil” is presented.

The civil nature of the claims is UPHELD:

■ Legal counsel, the right to be registered into a counsel register;⁹⁸⁹

■ Copyright;⁹⁹⁰

■ Bank guarantee;⁹⁹¹

■ Shareholders’ rights;⁹⁹²

■ Insurance contributions, a dispute on;⁹⁹³

■ Work permit;⁹⁹⁴

■ Life support, a contract on;⁹⁹⁵

■ Citizenship, the right to;⁹⁹⁶

■ Expropriation proceedings;⁹⁹⁷

■ Building permit;⁹⁹⁸

■ The use of land for construction purposes;⁹⁹⁹

■ Property claims;¹⁰⁰⁰

■ Immunity, the right to;¹⁰⁰¹

■ Infrastructure services;¹⁰⁰²

■ Disability, the right to the determination of;¹⁰⁰³

■ Alimony, obligations arising from marriage;¹⁰⁰⁴

■ Benefits under a social-security scheme;¹⁰⁰⁵

■ Interest;¹⁰⁰⁶

■ Loan, the creditor’s right to request the repayment of;¹⁰⁰⁷

■ Boundary, a dispute about;¹⁰⁰⁸

■ Lease;¹⁰⁰⁹

■ Reimbursement of compulsory and useful costs;¹⁰¹⁰

■ Contractual obligations;¹⁰¹¹

■ Education;¹⁰¹²

■ Parenting and Childcare;¹⁰¹³

■ Awarding of a broadcasting licence to the RTV station;¹⁰¹⁴

■ Compensation claim¹⁰¹⁵ (see, however, below, about disputes related to the amount of the claim, which, according to the Constitutional Court’s case law, are exempted from the application of Article 6 of the ECHR);

■ Compensation claim in criminal proceedings by an injured party;¹⁰¹⁶

■ Inheritance, the right to;¹⁰¹⁷

■ Severance pay, the right arising from employment;¹⁰¹⁸

■ Pension, disability, claims arising from the right to;¹⁰¹⁹

■ Retirement, early;¹⁰²⁰

■ Retirement, old-age;¹⁰²¹

■ Pension, foreign;¹⁰²²

■ Possession;¹⁰²³

■ Procedure of regulatory planning;¹⁰²⁴

■ Procedural decisions;¹⁰²⁵

■ Hours of work;¹⁰²⁶

■ Employment relations;¹⁰²⁷

■ Divorce, the right to;¹⁰²⁸

■ Paupers’ rights;¹⁰²⁹

■ Servitude;¹⁰³⁰

■ Social welfare card, the right to have a;¹⁰³¹

■ Merger proceedings, the right to;¹⁰³²

■ Housing list;¹⁰³³

■ Apartment;¹⁰³⁴

■ Dwelling costs;¹⁰³⁵

■ Status-related disputes;¹⁰³⁶

■ Damage compensation;¹⁰³⁷

■ Costs of the proceedings;¹⁰³⁸

■ Costs of the proceedings;¹⁰³⁹

■ Registration of ownership rights in the land registry;¹⁰⁴⁰

■ Registration of ownership in the land registry, challenging the registration of ownership.¹⁰⁴¹

The civil nature of the claims is DISPUTED:

As to the question of whether labour disputes and disputes arising from employment of civil servants, officials and other public servants may be deemed to be civil disputes and, thereby, fall within the ambit of the right to a fair trial, the HRC for BiH expanded not only the Strasbourg case-law but its own, too: a staring point to resolve this issue was the principle according to which disputes relating to the recruitment, careers and termination of service of civil servants could not be deemed to affect a civil right.¹⁰⁴² Furthermore, the Chamber, in accordance with the case-law of the Strasbourg organs, made an exception stating that, under particular circumstances, disputes may be deemed to be civil disputes where the claims at issue relate to a purely “economic right” (such as payment of a salary or a pension), or at least an “essentially economic” right.¹⁰⁴³ The Constitutional Court, as well as the Human Rights Chamber for BiH, referred concurrently to the functional criterion, established in the case-law of the European Court, according to which certain positions in the public-service sector, which involve responsibilities in the general interest or participation in the exercise of powers conferred by public law, are not afforded the protection of the right to a fair trial.¹⁰⁴⁴ Therefore, the only disputes excluded from the scope of Article 6, paragraph 1 of the ECHR are those which are instituted by civil servants whose duties typify the specific activities of public service insofar as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. According to this position, Article 6, paragraph 1 of the ECHR does not apply to disputes between civil servants and public institutions, i.e., administrative institutions, participating in the exercise of powers conferred by public law.¹⁰⁴⁵ To determine the applicability of Article 6, paragraph 1 of the ECHR to public servants, irrespective of whether they are hired under contracts for temporary staff services, it is necessary to adopt a functional criterion based on the nature of the duties and obligations of a civil servant. In this regard, it is necessary, in light of the object and purpose of the ECHR, to employ a restrictive interpretation on exceptions from Article 6, paragraph 1 of the ECHR.¹⁰⁴⁶ Certain public positions, in particular those within the police force and armed forces, serve to enforce the State’s sovereign power, as stipulated by public law; some do not have such a function. Only in the first case can it be recognised that the State has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other positions, which do not have this “public administration” aspect, as described above, there is no such interest.¹⁰⁴⁷ In each particular case, it is necessary to ascertain whether the applicant’s position entails – in respect of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In Case No. U 58/01,¹⁰⁴⁸ the Constitutional Court decided that the appellant, as an employee of the Ministry of Interior, who is conferred with sovereign power, did not enjoy the protection of Article 6, paragraph 1 of the ECHR. Conversely, the Constitutional Court decided that the school teacher was entitled to protection.¹⁰⁴⁹ On 24 October 2003, practically at the same time when the Constitutional Court took the Decision in Case No. U 58/01, on 5 November 2003, the Human Rights Chamber for BiH passed its Decision in Case No. CH/99/3375 (the Chamber’s decision was delivered on 5 December 2003, and only on 29 December 2003 was the decision of the Constitutional Court published in the Official Gazette). In the aforementioned decision, the Chamber departed from its previous case-law,¹⁰⁵⁰ as well as from the Constitutional Court’s case-law established in Case No. U 58/01, where the court upheld the functional criterion of separation and extended the application of Article 6 of the ECHR also to the disputes raised by civil servants who participate in the exercise of the State’s sovereign powers conferred by public law; however, there are exceptions as to certain positions in the public service, in particular the positions of the highest ranks, which cannot be afforded the guarantees of Article 6 paragraph 1 of the ECHR, because appointment to them and termination from them necessarily involves the exercise of wide discretion.¹⁰⁵¹ The Human Rights Chamber, in principle, offered three arguments in support of such an extension of the Strasbourg case-law: first, in a democratic society within the meaning of the ECHR, the right to fair administration of justice holds such a prominent place that a restrictive interpretation would be contrary to ratio legis.¹⁰⁵² Second, in the Chamber’s view, the main reasons to exempt disputes relating to civil servants from the ambit of Article 6 of the ECHR, such as the special bond of trust and loyalty in the exercise of powers conferred by public law, cannot be applied where the relevant law treats those public servants equally as any other employees, as it is the case in the public-service sector of Bosnia and Herzegovina. Furthermore, being supportive of the opinion of the four judges dissenting in the Pellegrin case, the Human Rights Chamber cannot understand that, in a State governed by the rule of law, civil servants are entitled to the right to court proceedings as any other citizen and, at the same time, the elements of a fair trial are not guaranteed to them also in the extreme cases relating to protection against possible arbitrariness in the proceedings. Thirdly, the Chamber highlighted that the scope of Article 6 of the ECHR should be interpreted in light of other obligations undertaken by the Annex 6 Signatory Parties and, in particular, those related to the right to a fair trial under Article 14 of the International Covenant on Civil and Political Rights – even where the Chamber, pursuant to Article II.2(b) of Annex 6, is competent to safeguard the rights mentioned in the Appendix to Annex 6 only as to the claims related to alleged discrimination. The UN Human Rights Committee, however, in its consistent case-law¹⁰⁵³ interpreted Article 14 of the International Covenant on Civil and Political Rights so that the concept of “suit at law” was based on the nature of the right in question rather than on the status of one of the parties. According to the said case-law, the procedure concerning a dismissal from employment constituted the determination of rights and obligations in a suit at law even if related to a fireman or a policeman.¹⁰⁵⁴

At the time, the Chamber’s case-law and the Constitutional Court’s case-law relating to the mentioned issues were manifestly incompatible. Given the fact that the decisions were passed at the same time and without observing each other’s decisions, and taking into account that it related to the two completely different judicial bodies, any reference to the “subsequent” case-law would be irrelevant. In any event, it would be difficult for the Constitutional Court to disagree, at least, with the third argument (the International Covenant on Civil and Political Rights), and, particularly, given that the Constitutional Court’s hands are not “tied”, unlike the Chamber’s, considering the restrictions set forth in Article II.2(b) of Annex 6.¹⁰⁵⁵

Subsequently, the Human Rights Commission within the BiH Constitutional Court returned to the case-law established in the Pellegrin case, and applied the principle of separation under the functional criterion. In so doing, it observed the duties and responsibilities of an injured party, and in practice, exempted not only high-ranking officials and civil servants, e.g., judges¹⁰⁵⁶ or former officials in public security¹⁰⁵⁷ but also officers of the Armed Forces¹⁰⁵⁸ or low- ranking policemen,¹⁰⁵⁹ from the protection of Article 6 of the ECHR.

Thereafter, the Constitutional Court’s case-law was inconsistent. In the Decision taken in Case No. AP 39/03, the Constitutional Court upheld the position according to which almost each public or private, physical or legal entity, including even the State as a legal subject,¹⁰⁶⁰ enjoy the protection. Thus, the appeals lodged for a violation of the right to a fair trial were declared admissible in cases related to the dismissal of the Head of the Police,¹⁰⁶¹ or of the soldier,¹⁰⁶² as well as of the Public Prosecutor.¹⁰⁶³ The Constitutional Court, however, decided differently in the proceedings regarding the appointment and dismissal of judges,¹⁰⁶⁴ or in a dispute concerning a councillor’s mandate,¹⁰⁶⁵ as well as in a dispute relating to the promotion of a civil servant in the Ministry.¹⁰⁶⁶ These appeals were declared inadmissible. Therefore, there has been no clear criterion for differentiation.

The case-law established recently by the European Court has been of great assistance. In the Vilho Eskelinen v. Finland case,¹⁰⁶⁷ the European Court further developed the functional criterion established in the Pellegrin case. According to this case-law, the safeguards of Article 6 of the ECHR, in any case, should be afforded to all civil servants who have access to judicial review under domestic law.¹⁰⁶⁸ The Constitutional Court has also accepted this position.¹⁰⁶⁹

The Constitutional Court’s case-law with regard to the proceedings related to the privatisation of social/state property is inconsistent, too. In Case No. AP 365/04, the Constitutional Court declined to recognise the proceedings, i.e., the dispute related to the offer for privatisation of the public company, as civil.¹⁰⁷⁰ Contrary to the aforementioned, in Case No. AP 1044/04, the Constitutional Court decided that the appeal related to the determination of validity of the offer given in the course of the privatisation of the public real property was admissible and took the decision on the merits, establishing a breach of Article 6 of the ECHR.¹⁰⁷¹

In addition, the case-law remains unclear also as to the electoral right. In Case No. AP 2679/06, there was a dispute between one political party and the Central Election Commission of BiH as to the election of a candidate to the State legislative authority. In the view of the Constitutional Court of BiH, a political party takes part in elections based on a list of its registered candidates, so that the dispute could be characterised as civil.¹⁰⁷² On the other hand, in Case No. AP 35/03, the Constitutional Court concluded that both active and passive electoral rights are not civil rights but subjective political rights and, consequently, Article 6 of the ECHR is not applicable, but rather Article 3 of Additional Protocol 1 to ECHR applies.

Also, in the Constitutional Court’s view, appeals related to public expenditure may raise an issue, too. Positively, tax debt collection through administrative proceedings cannot be characterised as a civil, but rather a public obligation. Therefore, in such cases, Article 6 of the ECHR does not apply.¹⁰⁷³ It is obvious that Article 6 of the ECHR does not apply to certain proceedings related to customs duties;¹⁰⁷⁴ however, it is applicable to other proceedings.¹⁰⁷⁵

The civil nature of the claims is DENIED

■ Amnesty, a request for;¹⁰⁷⁶

■ Asylum;¹⁰⁷⁷

■ Permission to stay lodged by aliens, a decision on a request for;¹⁰⁷⁸

■ Donation, the right to;¹⁰⁷⁹

■ Citizenship, the right to;¹⁰⁸⁰

■ Immunity, a request to;¹⁰⁸¹

■ Loan, collateral;¹⁰⁸²

■ Compensation, the right to the amount of compensation;¹⁰⁸³

■ Obtain evidence, a request to;¹⁰⁸⁴

■ Pension, a request for the amount of;¹⁰⁸⁵

■ Job application, a dispute over the lawfulness of a job vacancy announcement;¹⁰⁸⁶

■ Connection to the Water Supply System, obligation to remove an illegal connection to the water supply system;¹⁰⁸⁷

■ Privatisation process, methodology and privatisation program;¹⁰⁸⁸

■ Expulsion of aliens;¹⁰⁸⁹

■ Work, the right to;¹⁰⁹⁰

■ Work permit for aliens;¹⁰⁹¹

■ RTV fee, obligation to pay;¹⁰⁹²

■ Apartment, a request to be placed on a housing list;¹⁰⁹³ a request for allocation of an apartment;¹⁰⁹⁴

■ The moving of an alien into the country;¹⁰⁹⁵

■ Ownership, a request to have the seized property restored;¹⁰⁹⁶

■ Minutes, the right to have the validity of the minutes determined.¹⁰⁹⁷