The European Court of Human Rights determined – Courts in BiH have been violating the principle of equality of arms for years

Taking into account our regional footprint and domain, we are evaluating not only the laws of the BIH but also the laws, rules, and regulations of all applicable jurisdictions, connected risk factors, and our professional liabilities in deciding if we are going to accept a specific client or case. As a reputable Law firm with leading experts in several fields of practice, we have participated in the following procedure of representation before national courts and European Court, acting in several fields of expertise.

On August 31, 2021, the European Court of Human Rights, with passing the judgment upon Application number 27289/17, has made a significant step towards harmonization of the court practice in BiH with the goal of achieving equality of arms in the courts.

The longtime practice of the courts in BiH of failing to submit replies of the competent authorities to declare to the other party in the administrative disputes should be changed forever with this judgment. By providing the client “Bimal d.d” with expert advice on how to fully comply with all laws, the Law Firm “Ibrahimović & Co” has in the procedures before the national courts in BiH endeavored to point out all irregularities of the actions of the Competition Council. The practice of the Court of BiH (but also of other courts in BiH) was such that it omitted to submit replies and explanations of administrative bodies to the other party and thus preventing a fair trial.

Even though the national courts for years now apply the practice that for a fair trial it is not necessary to submit responds of administrative bodies and enable replies to their claims to the other party, the European Court considered the arguments of the Law Firm “Ibrahimović & Co” and determined that there is no fair trial if the parties in the dispute do not get the ability to declare themselves on all arguments in the procedure, especially those arguments which would be taken as decisive in the final judgment. Due to such actions, the European Court of Human Rights has determined the violation of Article 6, paragraph 1 of the European Convention for the Protection of Human Rights pointing to the violation of the equality of arms principle in the procedure, i.e. an omission of the Court was determined to have the client, as a party in an administrative procedure, delivered with the replies of the BiH Competition Council, which made this procedure unfair.

In the goal of prevention of future similar violations of the Convention, the Office of the Agent of the BiH Council of Ministers before the European Court of Human Rights has asked the High Judicial and Prosecutorial Council of BiH to notify all courts in Bosnia and Herzegovina about this judgment, especially those which have the jurisdiction in administrative disputes and to ensure that the courts harmonize their practice with the position of the European Court of Human Rights from the judgment “Bimal d.d. vs. BIH” in respect of the necessity to have the parties also in the administrative disputes submitted with the submission of the other party and to enable them to declare themselves on such responds.

This judgment represents a significant step forward in the reform of administrative disputes, which have greatly become the procedures where no concrete issues are being decided, but the explanation of judgments represents copying of the explanation from the administrative bodies, without allowing the other side to even declare on such claims and declarations. However, it is clear that just the decision of the European Court is not sufficient to provide the economic entities and individuals with guaranteed safety and rule of law and fair trial in the disputes with the administrative institutions.

Because of that, the Law Firm “Ibrahimović & Co” will remain firmly dedicated to providing of the state of the art legal services in its class both on a national and international level, as well as to continue to represent the interests of claims and defend the principles of the fair trial to the final instances. We do recognize the important role we play in society and we do work on the cooperation of different stakeholders in the legal systems, and therefore we will create a path to a more efficient judicial system and implementation of the guaranteed rights in the BiH.

The Judgment is published on the website of the European Court of Human Rights (http://hudoc.echr.coe.int/eng?i=001-211583) on August 31, 2021.

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