Muqishta v. Bosnia and Herzegovina, Application no. 27994/19, 2021

Facts:

The applicant was born and lives in Sarajevo. In 2004, she was granted refugee status in Bosnia and Herzegovina. Due to her illiteracy and her diagnosis of severe mental disability, the applicant applied for a disability allowance as well as an attendance allowance. The administrative authorities dismissed her application in 2011 as the benefits for which the applicant applied are only available for citizens of Bosnia and Herzegovina.

The applicant appealed, particularly referring to the domestic provision which stipulates that refugees with disabilities were entitled to a permanent allowance and an attendance allowance. The applicant’s claim, however, has been ignored by the Ministry. Instead, the Ministry upheld the decision of the Bosnian administrative authorities.

In 2013, the Sarajevo Cantonal Court instructed the Ministry to examine the case again under domestic social care legislation. After another examination, the Ministry held that the law did not provide any benefits for refugees. In 2016, the Sarajevo Cantonal Court upheld the Ministry’s decision. The applicant lodged a constitutional appeal claiming the length and the outcome of the proceeding. In 2018, the Bosnian Constitutional Court dismissed her appeal and the applicant brought an action to the European Court of Human Rights.

Decision & reasoning:

Regarding the fairness of the proceedings outlined in the present case, the Court holds that the Bosnian administrative authorities and the Sarajevo Cantonal Court did not give the applicant’s case a fair hearing, nor did the Constitutional Court provide remedy. Although it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, the Court argues that a violation of Article 6 § 1 of the Convention may be found if the national court’s findings are arbitrary or manifestly unreasonable, thus resulting in a ‘denial of justice’. The Court holds that the applicant’s refugee status entitles her to a permanent allowance and an attendance allowance according to the Bosnian 2009 Rulebook. Accordingly, at least one other refugee in a similar situation has been granted such benefits. Therefore, the Court argues that the Bosnian administrative authorities unlawfully disregarded the legal provisions pursuant to which the applicant was entitled to other, similar benefits, namely a permanent allowance and an attendance allowance, despite the fact she had specifically invoked those provisions in her appeal. Instead, the application was dismissed for the sole reason that the applicant expressly applied for benefits which are only available for citizens of Bosnia and Herzegovina according to domestic social care legislation. The Court thus finds a violation of Article 6 § 1 of the Convention.

Regarding the length of the proceedings outlined in the present case, the Court holds that the Bosnian Government did not put forward any facts or arguments capable of justifying the length of the proceedings. Whether the length of the proceeding is reasonable or not must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute. The proceedings in the present case lasted more than five years and one month. The Court considers the length of the proceedings as excessive and argues that it fails to meet the ‘reasonable time’ requirement. Moreover, the Court emphasises that special diligence is necessary in a case in which the applicant’s disability benefits make up the bulk of her resources like in the present case. Therefore, the Court finds a violation of Article 6 § 1 of the Convention.

Outcome:

Violation of Article 6 § 1 of the convention;

No separate examination of Article 14 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol No. 12 to the Convention.