Decision of tThe Constitutional Court of Bosnia and Herzegovina the appeal of Ms. Fata Orlović in case no. AP-4492/14

The Constitutional Court of Bosnia and Herzegovina the appeal of Ms. Fata Orlović in case no. AP-4492/14, at its session held on 28 September 2017 adopted the following

The Constitutional Court of Bosnia and Herzegovina, sitting, in accordance with Article VI(3)(b) of the Constitution of Bosnia and Herzegovina, Article 57(2)(b) and Article 59(1) and (3)of the Rules of the Constitutional Court of Bosnia and Herzegovina – Revised text (Official Gazette of Bosnia and Herzegovina, 94/14), in Plenary and composed of the following judges:

Mr. Mirsad Ćeman, President

Mr. Mato Tadić, Vice-President

Mr. Zlatko M. Knežević, Vice-President

Ms. Margarita Tsatsa-Nikolovska, Vice-President

Mr. Tudor Pantiru,

Ms. Valerija Galić,

Mr. Miodrag Simović,

Ms. Seada Palavrić,

Mr. Giovanni Grasso

Having deliberated on the appeal of Ms. Fata Orlović in case no. AP-4492/14, at its session

held on 28 September 2017 adopted the following

DECISION ON ADMISSIBILITY AND MERITS

The appeal lodged by Ms. Fata Orlović, Šaban Orlović,Fatima Ahmetović, Hasan Orlović, Zlatka Bešić, Senija Orlović,Ejub Orlović, Abdurahman Orlović, Muška Mehmedović, Mirsada Ehlić, Melka Mehmedović, Rahima Dahalić, FatimaOrlović and Murtija Hodžić against the judgment of the Supreme Court of the Republika Srpska No. 82 0 P 008784 14 Rev of 6 August 2014, the judgment of the County Court in Bijeljina No. 82 0 P008784 13 Gž of 23 October 2013 and judgment of the Basic Court in Srebrenica No. 82 0 P 008784 12 P of 3 une 2013 is dismissed as illfounded.

REASONING

I. Introduction

1. On 17 October 2014, Fata Orlović, Šaban Orlović, Fatima Ahmetović, Hasan Orlović, Zlatka Bešić, Senija Orlović, Ejub Orlović, Abdurahman Orlović, Muška Mehmedović, Mirsada Ehlić, Melka Mehmedović, Rahima Dahalić, Fatima Orlović and Murtija Hodžić (“the appellants”) represented by Fahrija Karkin, a lawyer practicing in Sarajevo, submitted the appeal with the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) against the judgment of the Supreme Court of the Republika Srpska (“the Supreme Court”) No. 82 0 P 008784 14 Rev of6 August 2014, the judgment of the County Court in Bijeljina (“the County Court”) No. 82 0 P 008784 13 of 23 October 2013 and judgment of the Basic Court in Srebrenica (“the Basic Court”)No. 82 0 P 008784 12 P of 3 June 2013.

II. Procedure before the Constitutional Court

2. Pursuant to Article 23 of the Rules of the Constitutional Court, the Supreme Court, the County Court, the Basic Court and the Serb Orthodox Church of Zvornik-Tuzla Diocese in Bijeljina, Church Municipality Bratunac from Bratunac and Church Municipality Konjević Polje from Bratunac (“the first defendant, the second defendant and third defendant or defendants”) were requested on 28 February 2017 to submit their respective replies to the appeal.

3. The Supreme Court, the County Court and the first defendant submitted their respective replies to the appeal during the period from 6 to 15 March 2017, while the Basic Court, the second defendant and third defendant failed to submit their respective replies within the given deadline.

4. On 20 July 2017, the Basic Court was requested to submit the case-file no. 82 0 P 008784 12 P.

5. The Basic Court submitted the requested case-file on 28 July 2017.

III. Facts of the Case

6. The facts of the case, as they appear from the appellant’s assertions and the documents submitted to the Constitutional Court may be summarized as follows.

Introductory remarks

7. On 29 October 2002, the appellants filed the lawsuit with the Basic Court against the defendant – the Serb Orthodox Church, the Church Municipality of Drinjača, for the purpose of “repossession of the plot marked as cadastral plot 996 called Crkvine, recorded in the Register of Deeds no. 235 of the cadastral plot Konjevići.” While acting upon the filed lawsuit, the Basic Court rendered ruling no. P: 445/2002 of 4 March 2003, whereby it stated that it lacks jurisdiction in this legal matter and dismissed the lawsuit. While deciding the complaint of the appellants against the ruling of the Basic Court of 4 March 2003, the County Court rendered the ruling no. Gž-442/03 of 25 August 2006, whereby the complaint is granted and the mentioned ruling is quashed and the case is remitted to the Basic Court for renewal of proceeding. After that, the Basic Court rendered the ruling no. 082-0-P-06-000177 of 30 October 2006, whereby the lawsuit was sent back to the appellants for correction and amendment in accordance with the provisions of Article 53 of the Civil Procedure Code (“the CPC”). On 13 November 2006, the appellants submitted the amended lawsuit in accordance with the ruling of 30 October 2006 (recorded as no. 082-0-P-06-000177), which was again sent back to the appellants by the Basic Court in its ruling of 19 March 2007 for the purpose of making amendments to the lawsuit by way of specifying the name of the defendant to be the party to this proceeding.

 While acting upon the ruling of the Basic Court dated 19 March 4 2007, the appellants amended their lawsuit in their submission and the defendants have been determined, as follows:

1) the Serb Orthodox Church of the Zvornik-Tuzla Diocese -Bijeljina,

2) the Church Municipality Bratunac – Bratunac and

3) Church Municipality Konjević Polje-Bratunac.

In that submission the claim was specified so that the defendant, the Serb Orthodox Church, is ordered to remove the premises of the church from part of the plot marked as cadastral plot no. 996 called “Crkvine” - the house, the building with surface 101m2, the courtyard with surface 500 m2 and the meadow of the 2nd class with surface 11720 m2, title deed no. 235 of the cadastral plot Konjevići owned by the plaintiffs and the part of it is shown on the sketch of the expert witness and to hand part of the plot marked on the sketch of the expert witness to the plaintiffs for the repossession and free disposal, within the period 30 days counting from the day of receiving the judgment under the threat of enforcement measure. Otherwise, the defendant has to accept the fact that the plaintiffs, upon the expiration of 30 days period from the day of the receipt of the judgment, will remove the premises of the church from the marked part of the plot at the expense of the defendant and the plaintiffs are to be compensated for the expenses of the proceeding within 30 days under the threat of enforcement measure”.

8. After that, the Basic Court has been postponing the preparatory hearing on several occasions (21 June, 27 September, 29 October, 29 November, and 27 December 2007). Namely, during the preparatory hearing of 27 December 2007, the official note was read aloud and that note was composed on 26 December 2007 by the President of the Court Hajrudin Halilović, wherein it was stated: “On 26 December the plaintiffs’ legal representative contacted, via phone, the President of the Court and suggested that the preparatory hearing scheduled for 27 December 2007 be postponed since he had meeting with the RS Prime-Minister and there was a possibility for reaching a mutual settlement of this dispute in the first half of 2008”. The preparatory hearings, which were scheduled for 29 January and 28 February 2008, were also postponed at the proposal of the authorized representative of the appellants, and that was stated in the Minutes of the court dated 29 January and 28 February 2008.

9. Bearing in mind that the legal representative of the appellants, who was duly informed, did not attend the preparatory hearing, on 7 June 2008 the Basic Court rendered a ruling whereby it was considered that the lawsuit was withdrawn, in which case the mentioned ruling was rendered ineffective given that the proposal for restoration filed by the legal representatives of the appellants was granted in the ruling of that court dated 11 February 2009. After that, the Basic Court scheduled and held the preparatory hearing on 25 December 2009, including the main hearing held on 20 April 2010 at which, as stated by the court in the Minutes of 20 April 2010, after the presentation of evidence, the legal representative of the appellants stated the following: “The fact is established that on 11 January 2008, the out-of-court settlement was reached between the plaintiffs represented by lawyer Fahrija Karkin and the defendants represented by Prime-Minister Milorad Dodik, and Advisor to the Prime Minister Miladin Dragičević and Mr. Kačavenda, reading as follows: ”the defendants are ordered to remove the church built on the cadastral plot 996 at the south-west part of the cadastral plot between the asphalt road and house at the moment when the defendants provide new space for the construction of the church in Konjević Polje, where the defendants are ordered to relocate the church within the time-limit of 15 days from the day of fulfilment of the second requirement under threat of enforcement measure”.

10. While deciding the specified claim of the appellants, the Basic Court dismissed the mentioned claim by its judgment no. 082-0-P-06-000177 of 21 May 2010, which was upheld by the judgment of the County Court no. 12 0 P 001490 10 Gž of 17 September 2010. While deciding the appellants’ petition for review, the Supreme Court rendered the ruling no. 118 0 P 000701 10 Rev of 1 February 2012 of 1 February 2012, whereby the petition for review was granted and the judgment of the County Court of 17 September 2010 was quashed and the case remitted to the relevant court for renewal of the proceeding. After that, the County Court rendered the ruling no. 12 0 P 00149012 Gž of 24 September 2012, whereby the appellants’ complaint against the judgment of the Basic Court of 21 May 2010 was granted and the mentioned judgment of the Basic Court quashed and the case remitted to the Basic Court for renewal of proceeding.

The proceeding completed by the challenged judgments

11. While deciding the renewal of the proceeding, the Basic Court rendered the judgment no. 82 0 P 008784 12 P of 3 June 2013, whereby the applicants’ claim was dismissed. The claim read as follows: The fact is established that on 11 January 2008 the out-of-court settlement was reached between the legal representative of the appellants who was duly informed did not show up at the scheduled preparatory hearing of 7 May 2008, the Basic Court rendered the ruling on 7 June 2008, whereby the lawsuit is considered withdrawn, where the mentioned ruling was rendered ineffective as by the ruling of that court dated 11 February 2009 the proposal of the legal representative of the appellants for restoration was granted. Afterwards, the Basic Court scheduled and held the preparatory hearing on 25 December 2009 and main hearing on 20 April 2010 at which, the legal representative of the appellants, after presentation of evidence stated: instead of the claim previously filed where the removal of the church or repossession of land was sought, he amends the claim, which reads as follows: “The fact is established that on 11 January 2008, the out-of-court settlement was reached between the plaintiffs represented by lawyer Karkin Fahrija and defendants who were represented by the Prime-minister Milorad Dodik, the Advisors to the Prime-minister Dragičević Miladin and Mr. Kačavenda, which reads: “The defendants are obliged to remove the church, which was built on the cadastral plot no. 996, at the south-west part of the cadastral plot between the asphalt road and houses at the moment when the defendants provide new space for construction of the church in Konjević Polje, with obligation imposed on the defendant to relocate the church within 15 days from the day of fulfilment of the second requirement under threat of forcible enforcement”. In the same judgment the appellants are ordered to jointly compensate the first defendant for the costs of the civil proceeding amounting to BAM 11 243.70.

12. In the reasons for the judgment, the County Court stated that the appellants, in their claim of 29 October 2002, initiated the proceeding and specified the claim as follows: the appellants sought that that the Serb Orthodox Church be ordered to hand over part of the plot no. 996 called ‘Crkvine’- the house and the building with surface of around 200 m2, and leave it totally devoid of the contents and construction facilities. The Basic Court also stated that during the proceedings, the claim was specified for several times, where the appellants have finally specified their claim at the hearing of 20 April 2010, as precisely stated in the enacting clause of the judgment. While deciding the specified claim, the Basic Court stated that based on the presented evidence (interrogation of witnesses Miladin Dragičević and Hajrudin Halilović – President of the Basic Court in Srebrenica), it established that during 2008 the talks were conducted between the legal representative of the appellants and witness Miladin Dragičević in his capacity as Adviser to the Prime-Minster of the Republika Srpska Milorad Dodik on “the possible assistance to be provided to the Serb Orthodox Church by the Government of the Republika Srpska in finding peaceful solution to the issue of relocation of the church from the land in question to another location in Konjević Polje”. Namely, the Basic Court argued that as regard the circumstance of reaching the out-of-court settlement, and upon the proposal of the appellants, it presented the piece of evidence of interrogation of Miladin Dragičević in his capacity as witness and that, based on the statement of the mentioned witness, it was established that “Miladin Dragičević and Prime-Minister Milorad Dodik did not conduct talks on behalf of the defendants, but they did so in their capacity as representatives of the Government of the Republika Srpska trying to provide assistance in finding solution to the problem of relocation of the church from the land claimed by the plaintiffs (the appellants)”. The Basic Court also stated that “witness Miladin Dragičević confirmed that bishop Kačavenda, who could have been entitled to represent the defendants, was not present at the meeting. During the meeting, the telephone conversations was conducted with him, and Mr. Kačavenda said that he was willing to discuss that matter and that the RS Government is not the place to be addressed by the legal representative of the plaintiffs (the appellants)”. In this connection, the Basic Court emphasized that the mentioned witness confirmed that the telephone conversation with bishop Kačavenda was just a discussion and not an out-of-court settlement.”

13. Bearing in mind the aforesaid, and upon assessment of the presented evidence within the meaning of Article 8 and taking into account the statements of the parties to the proceedings who were interrogated in their capacity as witnesses, the Basic Court concluded that the appellant, upon presentation of evidence, failed to prove that an out-of-court settlement reached between the appellant’s and defendants within the meaning of the provisions of Article 1089 of the Law on Obligations. Therefore, the Basic Court dismissed the appellants’ claim as ill-founded. The Basic Court based its Decision on the costs of the proceeding on the provisions of Article 386, paragraph 1 of the Civil Procedure Code.

14. While deciding the complaint of the appellants’ against the first instance judgments, the County Court rendered the judgment no. 92 0 P 008784 13 Gž of 23 October 2013, whereby the complaint of the appellants was granted with regards to part of the decision on the costs of the proceedings, so that the first instance judgment was modified regarding that part in a manner in which the amount of BAM 11 243.70 was reduced to the amount of BAM 1 029.60, while the rest of the claim of the first defendant seeking compensation for the costs of the proceeding was dismissed (paragraph 1 of the enacting clause). In paragraph II of the enacting clause, the rest of the complaint of the appellants was dismissed and the first instance judgment was upheld. In the reasons for the judgment, the County Court reiterated that in the case at hand the specified claim was aimed at determination of the fact that the out-of-court settlement was reached between the plaintiffs (the appellants) represented by lawyer Fahrija Karkin on the one side, and the defendants represented by the Prime-Minister of the Government of the Republika Srpska Milorad Dodik, Advisor to the Prime-Minister Milorad Dragičević and Mr. Kačavenda on the other side. According to this settlement, they are obligated to remove the church built on cadastral plot no. 996 at the moment when the defendants provide a new space for the construction of the church in Konjević Polje and the defendants are to fulfil that obligation within the time-limit of 15 days from the day of fulfilment of the second requirement under threat of enforcement measure”. The County Court noted that the court of first instance, while deciding within the limits of the specified claim, drew a conclusion that the claim is groundless for the reason that the appellant’s failed to prove that the Prime-Minister Milorad Dodik and Advisor Miladin Dragičević were authorized to represent the defendants, i.e. to talk on behalf of the defendants for the purpose of relocation of the church from the real property in Konjević Polje, neither did they have such an authorization under the law. Namely, the County Court noted that the conclusion cannot be drawn from the statements of the interrogated witnesses – Advisor to the Prime-Minister Milorad Dragičević and Hajrudin Halilović, “that out-of-court settlement was reached between the parties to the proceeding in a form of bilateral contract, which is referred to under Article 1089 and Article 1098 of the Law on Obligations”. The County Court also pointed to the fact that the court of first instance, based on the statements of the mentioned witnesses, also established that “the telephone conversations were conducted between Miladin Dragičević, the Advisor to the Prime-Minister and Bishop of the Zvornik-Tuzla Diocese Kačavenda, with the aim of solving the disputed issue of relocation of the church in Konjević Polje” and, in that regard, the Court concluded that it does not follow from the statement of the mentioned witness that during that conversation “the agreement was made and outof-court settlement was reached, which is to be established as sought by the specified claim”.

Bearing in mind the content of the appellants’ claim and established facts of the first instance court, the County Court concluded that the first instance judgment, which decided the matter raised by the specified claim, is correct and lawful, except for the part of the decision on the costs of the proceeding. Therefore, as stated in the enacting clause of the judgment the County Court rendered the decision in accordance with Article 266 of the Civil Procedure Code.

15. In its judgment no. 82 0 P 008784 14 Rev of 6 August 2014, the Supreme Court dismissed the petition for review filed by the appellants against the second instance judgment. In the reasons for the judgment, the Supreme Court repeated the subject of the claim and facts established by the lower instance courts. In that regard, the Supreme Court concluded that the judgments of the lower instance courts are correct and lawful. Namely, the Supreme Court indicated that it indisputably follows from the evidence presented during the proceeding (interrogation of witnesses) that the talks were conducted between the legal representative of the plaintiffs (the appellants) and Miladin Dragičević, the Advisor to the Prime-Minister of the Republika Srpska with regards to relocation of the church from the plot owned by the plaintiffs (the appellants). However, the Supreme Court pointed out that “it does not follow from any part of the statements given by mentioned witnesses that Advisor Miladin Dragičević or Prime-Minister Milorad Dodik expressed their wish to participate in or that they participated in the talks as legal representatives of the defendants, the Serb Orthodox Church, and, in that regard, the Court concluded that it follows from the mentioned statements that “Dragičević and Prime-Minister Dodik did not conduct talks on behalf of the 9 defendants, but in their capacity as representatives of the Government of the Republika Srpska, which is not authorised by law to represent any religious community in the Republika Srpska, including the Serb Orthodox Church given clear separation of the church and republic.”

Afterwards, the Supreme Court indicated that under Article 90 of the Law on Obligations it is stipulated that: “The form that the law prescribes for a contract or some other legal transaction is also valid for the proxy for conclusion of that contract, i.e. undertaking of that work”, and that under Article 91, paragraph 4 of the mentioned Law, the following is stipulated: “The proxy holder cannot conclude the settlement without special authorisation”. Additionally, the Supreme Court noted that it clearly follows from the established facts that Bishop Kačavenda, who could be considered entitled to represent the defendants, was not present at the mentioned meeting. In fact, the telephone conversation was conducted with him during the meeting and on that occasion Kačavenda stated that the Government of the Republika is not “to be addressed by the legal representative of the plaintiffs (the appellants)”. Given the aforesaid, and bearing in mind the content of the appellants’ claim, the Supreme Court noted that the lower-instance courts drew a correct conclusion that it does not follow from the established facts that some kind of agreement was made, or that some kind of settlement was reached by the parties to the proceeding within the meaning of Article 1089 of the Law on Obligations. Therefore, the Supreme Court concluded that the lower instance courts’ decisions, which were rendered upon the specified claim, were correct and that the appellants’ petition for review was unfounded and, therefore, the claim was dismissed in accordance with the provisions of Article 248 of the Civil Procedure Code.

IV. Appeal

a) Allegations of the appeal

16. The appellants consider that by the challenged decisions their right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”) was violated, as well as the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention. In essence, the appellants claim that their constitutional rights have been violated because of erroneously established facts leading to the wrong conclusion of the ordinary courts regarding the assessment of evidence, and because of misapplication of the substantive law. There is an extensive explanation of the chronological order of the proceedings in the appeal, wherein the challenged decisions are 10 interpreted and the appellants consider that those decisions are lacking clear reasons. Namely, the appellants noted that they indisputably “proved that the church was illegally built on their land”.

Therefore, they are of the opinion that in the course of the proceeding they proved that the out-ofcourt settlement was reached between them and the defendants. The mentioned fact, in their opinion, follows from the statements of witnesses Miladin Dragičević and Hajrudin Halilović.” The appellants also consider that the challenged judgments do not contain clear reasons for which their claim was dismissed. Was it because the Prime-Minister of the Republika Srpska Milorad Dodik and his Advisor Miladin Dragičević, including bishop Kačavenda did not have authorizations for conclusion of the out-of-court settlement or the reason was the non-existence of the required written form of the out-of-court settlement.” Namely, the appellants noted that it is not the matter of dispute that bishop Kačavenda was not present during the talks, but the telephone conversation was conducted with him and the agreement was made, and that agreement has all characteristics of the out-of-court settlement.” The appellants point out that “during the telephone conversation bishop Kačavenda had immediately given his consent to that out-of-court settlement, about which Mr. Dragičević gave testimony before the court.

b) Reply to the appeal

17. The Supreme Court, the County Court and the Basic Court challenged the allegations from the appeal pointing out that the subject of the appellants’ claim was to establish the existence of the court settlement reached between the parties to the proceeding. The courts also noted that no conclusion can be drawn from the appellants’ allegations that they had presented relevant arguments with regards to the alleged violation of the constitutional rights. The courts are of the opinion that the proper reasons were presented in the challenged decisions.

18. The first defendant noted that the allegations of the appeal are based on the contestation of the established facts and application of the substantive law and, in the opinion of the first defendant, those allegations are ill-founded. She is of the opinion that the constitutional rights the appellants refer to were not violated in the proceeding at hand. Therefore, the proposal was given that the appeal be dismissed as ill-founded.

V. Relevant Law

19. The Law on Obligations (Official Gazette of SFRY, 29/78, 39/85, 45/89, 57/89, and Official Gazette of Republika Srpska, 17/93, 3/96, 39/03 and 74/04), in the relevant part, reads:

Article 90

The form that the law prescribes for a contract or some other legal transaction is also valid for the proxy for conclusion of that contract, i.e. undertaking of that work.

Article 91

1) A proxy holder is entitled to undertake only those legal transactions he/she was authorized to.

(… )

4) The proxy holder can neither contract bill liability nor conclude the contract of guarantee, deed of arrangement, and contract on the selected court nor waive a right without compensation.

Article 1089

(1) Under the deed of arrangement individuals, who are in dispute or are uncertain about a certain legal relation, suspend the dispute, i.e. remove the uncertainty by mutual conceding, and determine their mutual rights and obligations.

20. The Law on Civil Procedure (Official Gazette of Republika Srpska, 58/03, 85/03, 74/05 and 63/07) in the relevant part, reads:

Article 7

Parties shall be obliged to present all facts on which they base their claims and present evidence proving those facts.

Article 8

The court shall decide which facts shall be considered as proved, on the basis of free evaluation of evidence. The court shall conscientiously and meticulously evaluate each individual piece of evidence and all evidence in their entirety.

Article 123

Each party shall be obliged to prove the facts on which s/he bases his claim.

The court shall determine the facts upon which the case shall be decided on the basis of free evaluation of evidence.

VI. Admissibility

21. Pursuant to Article VI(3)(b) of the Constitution of Bosnia and Herzegovina, the Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any court in Bosnia and Herzegovina.

22. Pursuant to Article 18(1) of the Rules of Constitutional Court, the Court shall examine an appeal only if all effective remedies that are available under the law against a judgment or decision challenged by the appeal are exhausted and if the appeal is filed within a time limit of 60 days as from the date on which the decision on the last remedy used by the appellant was served on him.

23. In the present case, the subject-matter of the appeal is the judgment of the Supreme Court no. 82 0 P 008784 14 Rev of 6 August 2014 against which there are no other remedies available under the law. Furthermore, the appellant received the challenged judgment on 3 September 2014 and the appeal against this decision was filed on 17 October 2014, i.e. within 60 days’ time-limit as provided for by Article 18(1) of the Rules of the Constitutional Court. Finally, the appeal also meets the requirements under Article 18(3) and (4) of the Rules of the Constitutional Court because it is not manifestly (prima facie) ill-founded nor are there any other formal reasons that would render the appeal inadmissible.

24. Having regard to Article VI (3)(b) of the Constitution of Bosnia and Herzegovina, Article 18 (1), (3) and (4) of the Rules of the Constitutional Court, the Constitutional Court establishes that the present appeal meets the admissibility requirements.

VII. Merits

25. The appellants challenge the mentioned decisions claiming that they have violated his right under Article II(3)(e) and (k) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention and Article 1 of Protocol No. 1 to the European Convention.

Right to a fair trial

26. Article II(3)(e) of the Constitution of Bosnia and Herzegovina in the relevant part reads:

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:

(…)

(e) The right to a fair hearing in civil and criminal matters, and other rights relating to criminal proceedings.

27. Article 6 paragraph 1 of the European Convention, as relevant, reads:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. [...]

28. The Constitutional Court notes that the proceeding was initiated for the purpose of establishing the fact that an out-of-court settlement was reached. The issue is related to civil dispute and, therefore, the appellants enjoy the right to a fair trial under Article II(3) (e) of the Constitution of Bosnia and Herzegovina.

29. The Constitutional Court observes that the appellants consider that their right to a fair trial was violated because of erroneously established facts connected with wrong presentation of evidence and arbitrary application of the procedural and substantive law. In this connection, the Constitutional Court reminds that pursuant to the case-law of the European Court of Human Rights and the Constitutional Court, it is not these Courts' task to review ordinary court’s findings of facts and application of the substantive law (see the European Court of Human Rights, Pronina v. Russia,

Decision on Admissibility of 30 June 2005, Application no. 65167/01). Namely, the Constitutional Court cannot generally substitute its own appraisal of the facts or evidence for that of the regular courts but it is the regular courts' task to appraise the presented facts and evidence (see European Court of Human Rights, Thomas vs. United Kingdom, Judgment of 10 May 2005, Application no. 19354/02). It is the Constitutional Court's task to ascertain whether the constitutional rights (fair trial, access to court, effective remedies, etc.) were violated or disregarded and whether the application of a law was obviously arbitrary or discriminatory.

30. The Constitutional Court, therefore, according to the aforementioned position, may exceptionally, when it is obvious that ordinary courts acted arbitrarily in particular proceedings, as in the proceedings of establishment of facts and application of relevant positive and legal regulations (see, the Constitutional Court, Decision on Admissibility and Merits no. AP 311/04 of 22 April 2005, para. 26), engage itself in examination of the manner in which the competent courts established facts and applied positive legal regulations to such established facts. Within the context of the aforesaid, the Constitutional Court recalls that it indicated in a number of its decisions that the apparent arbitrariness in the application of relevant regulations can never lead towards a fair proceedings (see, the Constitutional Court, Decision on Admissibility and Merits no. AP 1293/05 of 12 September 2006, para. 25 and further on, and mutatis mutandis, the European Court of Human Rights, Anđelković vs. Serbia, judgment of 9 April 2013, para 24.). In view of the above, the Constitutional Court shall examine whether the facts were erroneously established, i.e. whether the procedural or substantive law was arbitrarily applied as indicated by the appellants.

31. As regards the case at hand, the Constitutional Court observes that ordinary courts gave sufficient and clear reasons for their decisions and those clear reasons do not seem to be arbitrary in any segment. Namely, the Constitutional Court primarily observes that ordinary courts, while deciding the claim of the appellants within the limits clearly defined within the meaning of Article 2 paragraph 1 of the Civil Procedure Code, dismissed the claim, considering that the appellants failed to prove that there was an out-of-court settlement, including the rights and obligations of the parties to the proceeding stated in the claim, was reached between them, represented by lawyer Fahrija Karkin and the defendants, represented by the Prime-Minister of the Republika Milorad Dodik, and Advisor to the Prime-Minister Miladin Dragičević and bishop Kačavenda. Moreover, the County Court and Supreme Court, while giving the reasons for their opinion that the complaints and petition for review are groundless and while upholding the first instance judgment except for the part relating to the costs of the proceeding, they gave clear reasons, contrary to the statements from the appeal, for their opinion that the appellants, through presentation of evidence (interrogation of witnesses), proved that the talks were conducted between the legal representative of the appellants and the Prime-Minister of the Republika Milorad Dodik, and Advisor to the Prime-Minister Miladin Dragičević for the purpose of solving the issue of relocation of the church from the real property owned by the appellants and that, through the mentioned presentation of evidence, they failed to prove that the Prime-Minister and his Advisor conducted talks on behalf of the defendants and that during those talks the out-of-court settlement was reached. Namely, the Constitutional Court observes that in this regard the Supreme Court, in the reasons for its decision as a final decision in the proceeding in question, pointed to the provisions of Article 91 paragraph 4 of the Law on Obligations, whereby it is prescribed that “out of court settlement cannot be reached without special authorization” and, in that regard, concluded that in the case at hand it does not follow, from any of the parts of the statements of the witnesses (Miladin Dragičević and Hajruding Halilović), that Prime-Minister Milorad Dodik, and his Advisor Miladin Dragičević were granted authorization by the defendants to conclude, on their behalf, an out of court settlement that is the subject of the specified claim”. Moreover, the Constitutional Court observes that ordinary courts clearly indicated that it follows from the presented evidence that bishop Kačavenda, who could, in the end, represent the defendants did not directly participate in the talks, but Advisor Miladin Dragičević contacted him by phone. Given the aforesaid, the ordinary courts concluded that the settlement could not be reached.

32. Bearing in mind all stated above, particularly the fact that, at the main hearing held on 20 April 2010, the appellants finally specified the claim, whereby they sought that the fact be established that on 11 January 2008 the out-of-court settlement was reached, as precisely stated in the enacting clause of the judgment and that ordinary courts, given the principle prescribed under Article 2 of the Civil Procedure Code according to which the court shall, in civil proceeding, decide within the limits of the claims which have been filed during the procedure, dismissed the claim considering that the appellants did not prove that the claim has grounds within the meaning of Article 126 in conjunction with Article 123 of the Civil Procedure Code, the Constitutional Court observes that as regards such position, while noting that the civil proceeding court decides within the limits of the claim (Article 2 of the Civil Procedure Code), contrary to the allegations from the appeal, the ordinary courts presented clear and sufficient reasons with regards to the conclusion that the appellants’ claim is not well founded. Therefore, the Constitutional Court considers unfounded the appellants’ allegations relating to erroneously and incompletely established facts and misapplication of the substantive law regarding evaluation of evidence and application of the burden of proof rule. Moreover, the Constitutional Court holds that given the circumstance of the case at hand and facts of the case, it does not follow that ordinary courts arbitrarily applied both the substantive and procedurals law.

33. In view of the aforesaid, as regards the reasons for the challenged decisions, the Constitutional Court sees no arbitrariness in the actions of ordinary courts which the appellants pointed to in their appeal, and concludes that the appellants’ allegations about violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention are unfounded.

34. Bearing in mind the aforesaid, the Constitutional Court infers that the right of the appellants to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention was not violated by the challenged judgments.

Right to property

35. The appellants consider that their right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention was violated by the challenged decisions. In connection with this, the Constitutional Court observes that the appellants bring the invocation of the violation of the mentioned right into the context with erroneously established facts and misapplication of the substantive and procedural law, about which the Constitutional Court has given its opinion in the preceding paragraphs of this decision. Taking into account the aforesaid, the Constitutional Court considers that the appellants’ allegations about violation of Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention are also unfounded.

VIII. Conclusion

36. The Constitutional Court concludes that given the circumstances of the case at hand, the appellants’ right to Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention was not violated when it comes to application of both the procedural and substantive law, in the case where the ordinary courts, by application of the burden of proof rule regulated under the Civil Procedure Code’s provisions, which are clear, unambiguous and accessible, dismissed the claim of the appellants by presenting clear arguments and reasons. As to the circumstances of the case at hand, there is nothing else which would lead to a conclusion that, while rendering the challenged judgments, the courts applied the law in an arbitrary manner.

37. The Constitutional Court concludes that there is no violation of the right to property under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, in the case where the appellants bring the violation of that right with erroneously established facts and misapplication of the substantive and procedural law, and where the Constitutional Court had already concluded that there was no arbitrariness in that regard.

38. Pursuant to Article 59(1) and (3) of the Rules of the Constitutional Court, the Constitutional Court has decided as set out in the enacting clause of this decision.

39. Under Article 43 of the Rules of the Constitutional Court, annex to this Decision makes Separate Dissenting Opinion of Judge Seada Palavrić joined by the President Mirsad Ćeman, Vice- President Margarita Tsatsa-Nikolovska and Judge Tudor Pantiru.

40. Pursuant to Article VI(5) of the Constitution of Bosnia and Herzegovina, the decisions of the Constitutional Court shall be final and binding.

Mirsad Ćeman

President

Constitutional Court of Bosnia and Herzegovina