“The right of access to court”

The right to a fair trial, within the meaning of Article 6, paragraph 1 of the ECHR, includes a right of access to courts.¹¹⁶⁸ This right is inseparable from the other rights guaranteed by Article 6 of the ECHR.¹¹⁶⁹ The right of access to courts protects also the right not to be put through court proceedings against one’s own will if the legal presumptions necessary to conduct the proceedings are not complied with (the negative right of access to courts). A breach of this negative component of the right of access to courts arises if, for instance, the court grants a revision by an arbitrary and incorrect interpretation of the relevant legal prerequisites essential for a revision,¹¹⁷⁰ or if the court accepts a civil action although the legal prerequisites to conduct the proceedings are not met,¹¹⁷¹ or if the proceedings completed by a final judgment are renewed by the court in an arbitrary manner.¹¹⁷²

The legal situation related to the right of access to courts in the legal field must be sufficiently clear and coherent; otherwise, the right of access to courts would be excluded as a consequence of legal uncertainty.¹¹⁷³ This requirement is not satisfied if the law anticipates a certain legal remedy, referring to another legal act, which actually does not contain that remedy at all.¹¹⁷⁴

Shortcomings in the organisation of the judiciary of the Entities must not be a burden on the individual. Even when it is recognised that the State enjoys discretion in relation to the organisation of a judicial system,¹¹⁷⁵ it has to organise it in such a way so that the courts are able to fulfil their respective obligations referred to in Article 6 paragraph 1 of the ECHR, which includes making sure that legal remedies are available and comprehensible to individuals.¹¹⁷⁶ Bosnia and Herzegovina, thus, cannot prohibit the Entities’ courts from exercising their authority to decide on decisions of the State institutions regulating status- related issues of individuals, while, at the same time, prohibiting the damaged persons from accessing courts at the State level.¹¹⁷⁷

The necessity for a legal remedy to be accessible and comprehensible requires a decision-making body, i.e., a court, not to interpret and apply formally the procedural provisions on admissibility of a legal remedy, but by observing the peculiarities of each individual case, thereby not rendering the respective legal remedy illusory.¹¹⁷⁸ On the other hand, each person has to prove that a body being addressed with a request is competent to decide on the respective case. Arbitrary and erroneous interpretation of regulations as to its own competence shall violate the right of access to court.¹¹⁷⁹ Thus, a violation of the right of access to court shall exist if a court, unlawfully, deprives an individual of a decision on the merits as to the existence of the right of ownership or occupancy right or the right to use a property, by declaring itself incompetent or by referring the individual to initiate an administrative proceeding. This is applicable especially in such events when the regulations¹¹⁸⁰ or the case-law¹¹⁸¹ have assigned the respective subject matter to courts.¹¹⁸²

In Case No. U 7/99, the appellant had been forcibly evicted from his apartment during the war. After the armed conflict, a third person moved into the apartment without the appellant’s consent. The first instance court deliberated on the appellant’s lawsuit for repossession only after several months had elapsed following the filing of the lawsuit and after the appellant’s apartment had been allocated to the unlawful possessor for use as a temporary accommodation, by a decision of the municipal commission for refugees and displaced persons. The appellant did not appeal against this decision. The first instance court referred to the legal validity of the respective decision and the appellant’s failure to file an appeal. As a result thereof, the court dismissed the appellant’s civil action, which decision was upheld by the second instance court.

The establishment of a violation of the right of access to court presumes that a damaged person has addressed a competent court. Therefore, in proceedings before the Constitutional Court it is necessary oftentimes to first clarify the issue of the competence of the authority, which was addressed with a request, in order to reach a decision as to whether the appellant has failed to exhaust legal remedies provided for by law.¹¹⁸³ Thereby this does not concern the applicability of Article 6 of the ECHR,¹¹⁸⁴ or the existence of a legal remedy¹¹⁸⁵ for a certain legal issue in Bosnia and Herzegovina which falls in the domain of protection of Article 6 of the ECHR. Rather this is about the issue as to which body has the competence to make a decision. However, even with a body declaring itself competent to make a decision on the merits, whereby a reasonable doubt exists that such decision will not be complied with, there is legal uncertainty leading to a violation of the right of access to court.¹¹⁸⁶

Should a competent court adopt a ruling on discontinuation of the proceedings, in order to clarify a specific previous question, such discontinuation, if lawful, does not constitute a violation of the right of access to court.¹¹⁸⁷ Contrary to this, should the court proceedings be discontinued for a specific period of time on the basis of the instruction issued by the executive authority, and, as a result, the courts deprive an individual of the right to a decision on merits, it amounts to a violation of the right of access to court.¹¹⁸⁸ The same applies in the cases where courts discontinue civil proceedings despite being aware of the fact that the present possessor has unlawfully used the apartment, thereby referring to the administrative decision allocating the apartment to an unlawful possessor.¹¹⁸⁹

In the present case, the competent first instance court did not act for a total of 18 months upon the appellant’s civil action for repossession. In the meantime, the competent ministry had allocated the apartment to an unlawful possessor, in order to try to legalise his status thereof. Following this, the court, referring to the mentioned administrative decision, discontinued the proceeding, arguing that the administrative authorities had competence over such disputes.¹¹⁹⁰

The right of access to court exists not only in the event of the adoption of a first instance decision, but it also extends to the right to institute appellate proceedings.¹¹⁹¹

With regards to Article 6 of the ECHR, in principle, no objections can be raised if the courts relied on the facts of the case established in the administrative proceedings, especially if the appellant had the possibility to request a review of the facts of the case in the administrative proceedings, and to submit new evidence by requesting the reopening of the administrative proceedings.¹¹⁹² Nevertheless, the courts are not necessarily bound by the facts of the case established by the administrative authority.¹¹⁹³ Thus, the Constitutional Court, pursuant to Article 38, paragraph 1 of the Law on Administrative Procedure of the Republika Srpska, considers that binding the courts by the facts of the case arising from the administrative proceedings is justified only if such facts are clear and indisputable. In other cases the court, pursuant to Article 38, paragraph 3 of the same law, may and must establish by itself the facts of the case.¹¹⁹⁴ In particular when pronouncing fines, which are treated as criminal and legal sanctions within the meaning of Article 6, paragraph 1 of the ECHR, courts must have the right to review the facts of the case established by the administrative authorities and, if necessary, to establish them by themselves (for instance, by hearing witnesses); courts cannot limit themselves to having review of the administrative authorities’ decisions on pronouncing fines reduced to the review of the correct application of legal norms.¹¹⁹⁵ Accordingly, it is inconsistent with Article 6, paragraph 1 of the ECHR for the courts to dismiss a civil action for repossession of an apartment with the reasoning that the competent administrative authority had declared the apartment abandoned, and that the appellant had failed to challenge the respective decision. Therefore the courts are bound by the facts of the case established by the administrative authorities.¹¹⁹⁶

The appellant, named in the Case No. U 7/00, had been forcibly expelled by a refugee from his apartment in Banja Luka in September 1995. Several months thereafter the municipality declared the apartment abandoned, and allocated it to the refugee concerned as a temporary accommodation. In June 1996 the appellant filed a civil action with the Basic Court in Banja Luka for repossession of the apartment. The proceedings were suspended half a year thereafter for unknown reasons. The complaint and the civil action filed against the apartment being declared abandoned and its allocation to a third person were unsuccessful. The Supreme Court of the RS upheld the administrative acts with the reasoning that the administrative acts became legally binding, for which reason the RS Supreme Court was bound by the established facts of the case.

The right of access to court safeguards comprehensive procedural guarantees and it requires the public and unhindered conduct of proceedings, as well as guaranteeing the lawfulness of the proceedings and compliance with the standards of a legal state.¹¹⁹⁷ The right of access to court must be effectively guaranteed and not only formally safeguarded.¹¹⁹⁸ An individual has the right to request from the court to decide on his/her request in full.¹¹⁹⁹ For this reason, it is inadmissible for the court to suspend the proceedings and to refer the disputed case for deliberations to a certain commission which has neither the character of a “court” within the meaning of Article 6 of the ECHR, nor does it have the competence to decide on the disputed issue.¹²⁰⁰ Therefore, Article 6 of the ECHR would also be violated should the legal system, as far as a certain legal and disputed issue covered by this Article is concerned, fail to provide for the creation of an authority which may be treated as a “court”.¹²⁰¹ Contrary to this, it is not unconstitutional to transfer competence for the resolution of issues related to the well-foundedness of a request for the reimbursement of “war damage” to the State public attorney’s office, although this judicial authority does not have the character of a court within the meaning of Article 6 of the ECHR.¹²⁰² A violation of the right of access to court may exist under certain circumstances when an administrative court, instead of deciding on the merits of the case, quashed the deficient administrative acts and referred the case back for a new administrative proceeding and a decision.¹²⁰³

The right of access to court also extends to the enforcement proceedings of an adjudicated matter ending in a legally binding decision. Otherwise, the main trial could go without results, i.e., effect.¹²⁰⁴ Therefore, Article 6, paragraph 1 of the ECHR shall be violated if the enforcement of the right established by a final decision against (the pecuniary claim of) the State is postponed for an indefinite period of time. That is a move by way of which the legislature, in contravention of the principle of a legal state, interferes with a judicial authority.¹²⁰⁵ Also, it is inadmissible for the executive authority to take away executive force from court judgments on the basis of general administrative acts.¹²⁰⁶ Enforcement may be terminated only on the basis of legal acts, whereby the law must comply with the principles of a legal state.¹²⁰⁷ An obvious example of a violation of the right of access to court occurs when a legally valid decision, establishing the right of a certain person to a compensation apartment due to the expropriation of his/ her own property, has not been enforced for over 20 years,¹²⁰⁸ or if a decision ordering the remediation of the effects of an unlawful action has not been enforced.¹²⁰⁹

The right of access to court shall be violated if an individual is denied the adoption of an administrative decision stipulated by law, which needs to contain all its appertaining elements, and is, instead, provided with an unofficial letter containing a legal position of the administrative authority contrary to his/ her request, and the courts declare themselves incompetent regarding the respective request,¹²¹⁰ or if failing to institute a court proceeding within a time limit stipulated by law.¹²¹¹ Failure on the part of a competent authority to adopt a formal administrative decision prevents an individual from instituting a court proceeding for the protection of his/her rights.¹²¹²

In certain cases it may be justified to conduct proceedings in the absence of a party to the proceedings. However, the moment such a person has learned of the proceedings or a decision adopted in his/her absence, he/she has to be given an opportunity to secure a new decision on merits.¹²¹³

The right of access to court shall be violated if courts declare themselves incompetent concerning the issue of the reimbursement of damages due to unlawful arrest and the prosecutor’s instructions to pursue the claim for damages before the authorities established by Annex 6. The courts provide for a division of competences between ordinary courts and authorities established by Annex 6. By the force of Annex 6 and the Constitution of Bosnia and Herzegovina, ordinary courts are competent and obliged to award damages directly under the ECHR irrespective of the concrete regulation of that issue under the domestic positive legal regulations.¹²¹⁴

The right of access to court, however, cannot be guaranteed infinitely. The legislature has the competence to shape the respective right in accordance with its nature, depending on the time and place, needs and possibilities available in a society, i.e., in a community, on one hand, and an individual, on the other. Certain restrictions on the right of access to court must not narrow that right in such a way as to deny the very nature of the respective right. Besides, restriction on the right of access to court must follow a legitimate aim, and be implemented by employing appropriate means.¹²¹⁵ Typical restrictions on the right of access to court are the so-called inherent restrictions, such as the financial ones, for instance court fees paid when filing a civil action. These are admissible if the financial capacity of the individual is observed.¹²¹⁶ Fees amounting to 3% fall within the scope of the principle of proportionality. Yet, the right of access to court may be violated if a court unlawfully decides on the admissibility of a civil action.¹²¹⁷

Also lodging legal remedies may be connected with certain conditions, such as, for instance, the form of a legal remedy,¹²¹⁸ or the time limit provided for lodging a legal remedy. Time limits are, in principle, justified because of compliance with the principle of legal certainty. Namely, setting time limits for the exercise of a certain right is good for legal certainty and the proper functioning of the legal system.¹²¹⁹ These types of restrictions of the right of access to court may violate the right of access to court only in exceptional circumstances, that is when they are set so restrictively as to objectively prevent the effective use of a stipulated legal remedy.¹²²⁰

This is the case, for instance, when appellate proceedings – such as the one referred to in Article 123 of the Law on Civil Procedure of the RS – do not begin with the delivery of a judgment to the legal representative of a party to the proceedings, but with the delivery of a judgment to the defendant instead (ibid.). This is applicable in particular when a lawyer representing a party to the proceedings is expected to be familiar with domestic positive legal regulations and to represent the interests of his/ her client.¹²²¹ From the perspective of the Constitution, no complaint may be lodged if a revision appeal pursuant to Article 428 of the Criminal Procedure Code of the RS is available only to the convicted person, that is to his/her legal representative, and not to the prosecution or to some third party.¹²²²

Also substantive regulations on a certain right being subject to the statute of limitations may contain, as a justified consequence, a restriction on the right of access to court. For, similar to the procedural legal provisions on preclusive time limits, it is in the state’s public interest to protect confidence in a certain state of affairs, which has lasted for an extended period of time and, if the party concerned has not instituted a proceeding, to change that state of affairs.¹²²³

During the course of the proceedings an objection of applicability of the statute of limitations may be raised also at the second instance proceedings,¹²²⁴ or by filing a special civil action one may request that it be established that a third person has no right to seek through court or forcibly to exercise one’s right due to the expiry of the statute of limitations.¹²²⁵

The issue that is still not clear, unique and fully resolved is the issue whether the statute of limitations is subject to termination during the state of war.¹²²⁶ According to the Human Rights Chamber for BiH, the state of war affects the right being barred by the statute of limitations. The statute of limitations shall be suspended (i) during wartime by filing a civil action with any court. This very reason makes it irrelevant whether during wartime postal services were in operation between the entities up to 1998.¹²²⁷ In relation to the repossession of property under Annex 7 and the challenging of obligations-related relations – contract on exchange – entered into during the war, courts must apply the so-called property laws as lex specialis against the regulations on the statute of limitations referred to in the Law on Obligations.¹²²⁸ Also, in the area of employment relations, it is necessary to take into account the state of war. Refugees and displaced persons have to report to their employers as soon as possible, in order to be reinstated to work. Only upon establishing the respective moment, one may say that the statute of limitations has started running for one to exercise rights and for the conduct of a proceeding in the event that the employer is not willing to reinstate the employee to work of its free will.¹²²⁹ Should an employer refuse to reinstate an employee to work for real reasons, although it could have dismissed the request on the grounds of the expiry of the statute of limitations, the court might not raise an objection to the applicability of the statute of limitations; instead, it had to adopt a decision on merits in relation to the right to be reinstated to work.¹²³⁰

Issuing a certificate attesting to unpaid wages that remain outstanding does not mean that that the employer has admitted the debt. Consequently, no suspension of the statute of limitations has occurred.¹²³¹ Claims for unpaid pensions that are subject to the statute of limitations of 6 months shall be in consistence with the Constitution.¹²³² However, the statute of limitations of 6 months applicable to the right to pension pursuant to Article 17 of the Agreement on Mutual Rights and Obligations in Implementing Retirement and Disability Insurance (OG of RS No. 15/00) is not in accordance with the BiH Constitution.¹²³³ Also, from the perspective of constitutional law, one may not object to the positive legal regulation of the issue related to the right to reimbursement of unpaid, outstanding wages,¹²³⁴ or the right to fulfilment of contractual obligations¹²³⁵ being subject to the statute of limitations within three years effective from the day of becoming due; likewise, one may not raise an objection if the statute of limitations in the case of “missing persons” starts running only from the day when the legal requirements for pronouncing a certain person deceased have been met, and not from the day a person has been reported missing.¹²³⁶ Also, it is proportionate if the right to reimbursement of damages becomes subject to the statute of limitations within three years, effective from the day one learnt of the damage and the entity inflicting damage.¹²³⁷

Another example of inherent restrictions on the right of access to court is the mechanism of res iudicata.¹²³⁸ Thus, if a legal successor, i.e., an heir, tries to reopen the proceedings completed by a legally valid decision, which proceedings his predecessor was a party to, the restriction on the right of access to court will be justified.¹²³⁹ However, res iudicata shall not occur if a creditor tries to exercise his/her right established by a legally valid decision the second time around, after the exercise failed the first time around,¹²⁴⁰ or if one party to the proceedings tries to reach an out-of-court settlement in an ordinary court procedure.¹²⁴¹ Res iudicata applies to the enforcement court as well, which is not allowed, during the enforcement proceedings, to reopen and reconsider the issue of competence concerning the issue ending in a legally valid decision.¹²⁴²

Another admissible restriction on the right of access to court are the mechanisms of litis pendentis,¹²⁴³ standing to sue and be sued¹²⁴⁴ and the immunity of the adverse party.¹²⁴⁵