Ms. Valerija Galić, President Mr. Miodrag Simović, Vice-President Ms. Seada Palavrić, Vice-President Mr. Mirsad Ćeman Mr. Zlatko M.

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1 The Constitutional Court of Bosnia and Herzegovina, sitting, in accordance with Article VI(3)(b) of the Constitution of Bosnia and Herzegovina, Article 59(2)(2), Article 61(1) and (2) and Article 64(1) of the Rules of the Constitutional Court of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina nos. 60/05, 64/08 and 51/09), in Grand Chamber and composed of the following judges: Ms. Valerija Galić, President Mr. Miodrag Simović, Vice-President Ms. Seada Palavrić, Vice-President Mr. Mirsad Ćeman Mr. Zlatko M. Knežević Having deliberated on the appeal of Ms. Tereza Usar, in case no. AP 2900/09, at its session held on 13 June 2012, adopted the following

2 2 DECISION ON ADMISSIBILITY AND MERITS The appeal lodged by Ms. Tereza Usar is hereby granted. A violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms is hereby established. The Ruling of the Cantonal Court in Mostar no P Gž of 21 February 2008 is quashed. The case shall be referred back to the Cantonal Court in Mostar, which is obliged to take a new decision in an expedited procedure, in accordance with Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Cantonal Court in Mostar is ordered, in accordance with Article 74(5) of the Rules of the Constitutional Court of Bosnia and Herzegovina, to inform the Constitutional Court of Bosnia and Herzegovina, within three months as from the date of the delivery of this Decision, of the measures taken with a view to enforcing this Decision. This Decision shall be published in the Official Gazette of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina, the Official Gazette of the Republika Srpska and the Official Gazette of the Brčko District of Bosnia and Herzegovina.

3 3 REASONING I. Introduction 1. On 17 March 2008, Ms. Tereza Usar ( the appellant ) from Mostar, represented by Nikica Vučina, a lawyer practicing in Mostar, lodged initially an appeal with the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court") against the Ruling of the Cantonal Court in Mostar ( the Cantonal Court ) no P Gž of 21 February 2008 and the Ruling of the Municipal Court in Mostar ( the Municipal Court ) no P P of 22 January The appeal was registered under number AP 816/08. II. Procedure before the Constitutional Court 2. Pursuant to Article 22(1) and (2) of the Rules of the Constitutional Court, the Municipal Court and the Cantonal Court were requested on 19 March 2008 to submit their respective replies to the appeal. 3. The Municipal Court submitted its reply to the appeal on 31 March 2008 and the Cantonal Court did so on 4 April 2008 respectively. 4. Pursuant to Article 26(2) of the Rules of the Constitutional Court, the replies of the Municipal Court and the Cantonal Court were communicated to the appellant on 15 July On 14 October 2008, the Constitutional Court adopted a Decision no. AP 816/08 rejecting the mentioned appeal as premature, as the procedure on the appellant s revision-appeal lodged with the Supreme Court of FBiH ( the Supreme Court ) was still pending. 6. The appellant lodged an appeal on 14 September 2009 against the Ruling of the Supreme Court no P Rev of 28 July 2009 rejecting her revision-appeal for formal reasons, which was registered under number AP 2900/09. III. Facts of the Case 7. 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.

4 4 8. On 11 June 2007, the appellant submitted a petition (which the court registered as a lawsuit) before the Municipal Court for the establishment of the existence of a common-law marriage pursuant to Article 3 of the Family Law of BiH, with a view to exercising the right to a family pension. By a Ruling no P P of 23 July 2007 the Municipal Court remitted the lawsuit to the appellant to supplement it giving her instructions, among other things, that she should state her legal interest for filing the lawsuit because, among other things, a lawsuit does not allow to establish whether the facts related to a specific right or relation exist or not. 9. On 14 August 2008, the appellant submitted to the court a specified lawsuit against the defendants an underage I.U., Igor Usar and Ana Usar ( the defendants ), as legal heirs of their late father Ivan Usar, for the establishment of the existence of a common-law marriage, wherein she stated as the legal basis for the lawsuit Article 3 of the Family Law of BiH and Article 54(2) of the Law on Civil Procedure. 10. The Ruling of the Municipal Court no P P of 22 January 2008 rejected the appellant s lawsuit and quashed all the actions undertaken in the respective legal matter. The reasoning of the ruling reads that it follows from the appellant s lawsuit that she had lived in a common-law marriage with Ivan Usar from the beginning of July 1992 to 24 September 1993 when he got killed; that during the common-law marriage their child, underage I.U., was born (who is the first-defendant in the respective proceedings); that the second-defendant and third-defendant are the children of the late Ivan Usar and Milja Usar who were born in a marriage that had been divorced by the Judgment of the Basic Court in Mostar no. P.1725/88 of 21 November 1988; that the appellant holds that Ivan Usar, who had had an engagement in the Croatian Defense Council forces, secured her the right to a family pension following his death, and that the establishment of the existence of a common-law marriage is necessary for her to exercise the right arising from pension insurance. 11. In that respect, the Municipal Court stated that a lawsuit for establishment may require the establishment of a right or legal relation, or authenticity or inauthenticity of a public document when provided so by special regulations, or when a plaintiff has a legal interest in establishing the existence of a right or legal relation, or authenticity or inauthenticity of a document before the request for action arising from that relation becomes due. Further, it was stated that based on a letter of the Croatian Pension Insurance Fund, Zagreb Regional Office, it follows that the appellant sought that her right to a family pension be recognized and that, in connection thereto, the appellant was required to submit along with the rest of documentation the ruling establishing the status of a

5 5 common-law marriage with Ivan Usar. In that respect, the Municipal Court stated that the respective letter is not binding on that court, and that in the respective proceedings the competent administrative body may itself resolve the issue of the existence of a common-law marriage as a preliminary legal issue in accordance with Article 144 in conjunction with Article 142(1) of the Law on Administrative Procedure (Official Gazette of FBiH, no. 2/98), or if it concerns a civil procedure under the provisions of Article 12(1) and (2) of the Law on Civil Procedure. 12. The Municipal Court further stated that the petition for the establishment of the existence of a common-law marriage constitutes a request for the establishment of facts and not rights or a legal relation, thus the lawsuit is inadmissible in that sense, since the establishment of facts is not allowed in lawsuits seeking establishment. It was stated that the court has no authorization to establish autonomously any facts, but only the facts that are the basis for adopting a decision on the existence of personal, family, property and other rights and legal interests of certain persons. As there was no legal relation in the case at hand between the appellant and Ivan Usar, because the common-law marriage is not a bond regulated by law between certain persons on the basis of which one may institute a litigation, instead it concerns a factual situation of a union of a man and woman who are not married living together (Article 3 of the Family Law of FBiH), the Municipal Court rejected the appellant s lawsuit as inadmissible. 13. The appellant lodged an appeal against the mentioned ruling with the Cantonal Court, which dismissed the appeal as ill-founded by the Ruling no P Gž of 21 February 2008 and upheld the first-instance ruling. In the reasoning of the ruling the Cantonal Court stated that Article 54 of the Law on Civil Procedure prescribes that the plaintiff may request in the lawsuit that the court establishes the existence or lack of a right or legal relation, or the authenticity or inauthenticity of a document. It was stated that it followed therefrom that the subject-matter of a lawsuit seeking establishment may be only a specific, i.e. existing right or a legal relation, whereby the plaintiff must have a legal interest for filing a lawsuit, which exists in cases where a lawsuit seeking establishment of a legal relation is used to remove uncertainty or a dispute on the substance of that relation, or where a threat exists that the defendant might endanger, through one s conduct, the exercise of the right of the plaintiff in the near future. As the present relation does not concern, in the opinion of the Cantonal Court, the establishment of the existence or lack of a right or legal relation, but the establishment of a fact of the existence of a common-law marriage, the respective lawsuit is inadmissible, therefore the appellant s allegations stated in the appeal that her right to property and other rights were denied cannot be accepted for the aforementioned reasons. The

6 6 reason being that the appellant, according to the reasoning of the Cantonal Court, may exercise her rights to property in a special procedure before a court, where she would prove that she had acquired certain property with Ivan Usar, whom with she had lived in a common-law marriage, and thus seek the conveyance or division of such property. 14. The appellant lodged a revision-appeal against the mentioned ruling with the Supreme Court, which, by the Ruling no P Rev of 28 July 2009, rejected the revisionappeal as inadmissible thereby referring to the provisions of Article 237(2) of the Law on Civil Procedure, according to which the revision-appeal is inadmissible if the value of the challenged part of the legally binding judgment does not exceed the amount of BAM 10, In the case at hand the value of the dispute was given in the amount of BAM 1, The revision-appeal is inadmissible also because the mentioned court held that the revision-appeal should not be admitted exceptionally through the application of the provision of Article 237(3) of the Law on Civil Procedure, because the decision-making on the revision-appeal is not of relevance for the application of law in other cases. IV. Appeal a) Allegations stated in the appeal 15. The appellant holds that the challenged rulings violated her right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( the European Convention ), as well as her 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. The appellant sees the violation of the mentioned rights in the erroneously established facts of the case and the erroneous application of the substantive law. The appellant alleges that the first-instance court failed to provide the reasons in the challenged ruling why it did not accept her allegations and the factual basis of the claim. The appellant holds that she was denied the right of access to court, because her claim was not discussed despite the fact that marriage and common-law marriage were equalized in terms of rights to maintenance and obligations and relations, which is the reason why she holds that the courts had the competence to establish the existence of a common-law marriage. b) Reply to appeal

7 7 16. In its reply to the appeal, the Cantonal Court stated that there was no violation of the rights in the procedure before that court, which the appellant alleged in the appeal, as Article 54 of the Law on Civil Procedure did not allow the establishment of facts. 17. In its reply to the appeal, the Municipal Court stated that there was no violation of the rights that the appellant alleged in the appeal, as the request for the establishment of the existence of a common-law marriage constitutes a request for the establishment of facts, and not a request for the establishment of rights or a legal relation, as well as that there was no legal relation between the appellant and the late Ivan Usar, as the common-law marriage is not a union regulated by law, but only a factual status of a union of coexistence of a man and a woman. V. Relevant Law 18. The Law on Civil Procedure of FBiH (Official Gazette of FBiH, nos. 53/03, 73/05 and 19/06), in its relevant part reads as follows: Article 12, paragraphs 1 and 2 (1) When the court s decision depends on a preliminary decision regarding the existence of a certain right or legal relation, and such a decision has not yet been made by a court or another competent body (preliminary issues), the court itself may resolve the issue unless otherwise stipulated by special regulations. (2) The court s decision on a preliminary issue shall have legal effect only in the civil proceedings in which that issue has been solved. 2. Lawsuit seeking establishment Article 54 (1) The plaintiff may request in a lawsuit that the court establishes only the existence or non-existence of a right or legal relation or the authenticity or inauthenticity of a document. (2) Such a lawsuit may be filed when the special regulations so prescribe or when the plaintiff has the legal interest that the court establishes the existence or non-existence of

8 8 a right or legal relation or authenticity or inauthenticity of a document before the maturity of the claim arising from that relation. (3) If the decision on a dispute depends on the existence or non-existence of a legal relationship which became disputable in the course of the litigation, the plaintiff may, in addition to the existing claim, request the court to determine whether such a relation exists or not, if the court conducting the litigation is competent to decide on such a claim. (4) Claims under Paragraph 3 of this Article shall not be considered as an alteration of the initial complaint. 19. The Family Law of FBiH (Official Gazette of FBiH, no. 35/05), in its relevant part reads as follows: Article 2 A family, under this Law, is a union of parents and children and other blood relatives, inlaws, adoptive parents and adoptees and persons from a common-law marriage if they live together in the same household. (2) The regulation of family relations is based on the following: a) The protection of privacy of family life; b) The equality, mutual help and respect of family members; c) The obligation of parents to ensure the protection of interests and welfare of a child and their responsibility in rearing, upbringing and educating a child; d) The obligation of the State to ensure the protection of a family and a child; e) Providing guardianship to children without parental care and to adults who are unable to look after themselves, their rights, interests and property. Article 3

9 9 A common-law marriage, under this Law, is a union of a woman and a man who are not married to or in a common-law marriage with another person, which has lasted for a minimum of three years or less if they have a child out of that union. Article 213 (1) Mutual maintenance of marital and common-law partners, parents and children and other relatives is their duty and right when so stipulated by this Law. (2) In cases where mutual maintenance of persons referred to in paragraph 1 of this article cannot be realized in entirety or in part, the social community shall provide, under conditions set forth by law, to uninsured family members the funds necessary for maintenance. (3) Waiving one s right and duty shall have no legal effect. Article 214 Persons referred to in paragraph 1 of Article 213 of this Law shall contribute to the mutual maintenance commensurately with their respective ability and needs of a dependent. Article 230 (1) A common-law partner who meets conditions under Articles 3 and 224 of this Law shall be entitled to maintenance by the other common-law partner after the cessation of a commonlaw marriage. (2) A lawsuit for maintenance referred to in paragraph 1 of this article may be filed within one year from the cessation of a common-law marriage. Article 231 A court may dismiss a claim for maintenance of a common-law partner if he/she has behaved rudely or inappropriately in the common-law marriage without a serious cause by the other common-law partner, or if the obligation of maintenance should constitute an apparent injustice to the other common-law partner. Article 232

10 10 (1) The court may decide for the obligation to maintain a common-law partner to last for a certain period of time, particularly in the case where the maintenance seeker is able to secure the means for living in another way in due time. (2) In justified cases the court may extend the obligation of maintenance. (3) A lawsuit seeking the extension of maintenance may be filed only before the expiry of the period of time for which the maintenance has been determined. Article 233 The right to maintenance shall cease when the dependent common-law partner enters into marriage, or enters into a new common-law marriage, or becomes unworthy of that right, or if some of the reasons laid down in Article 224 of this Law no longer exist. Article 234 A father of a natural child has a duty, commensurate with his abilities, to maintain the mother of his child during the three months period prior to the birth and one year after the birth, if the mother looks after the child and has no sufficient means for living. Article 263 (1) Property that the common-law partners have acquired through work during the commonlaw marriage, which meets requirements under Article 3 of this Law, shall be considered their property from common-law marriage. (2) The provisions of this Law on marital property shall apply to the property referred to in paragraph 1 of this article. Article 380 (1) Marital partners, common-law marriage partners and all family members shall be entitled to protection against domestic violence. (2) Police, guardianship body and the Misdemeanor Court are obliged to provide protection against violent behavior. (3) All physical and legal persons are obliged to notify a competent police administration immediately upon learning of violent behavior.

11 11 VI. Admissibility 20. In accordance with 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. 21. In accordance with Article 16(1) of the Rules of the Constitutional Court, the Constitutional Court may examine an appeal only if all effective legal remedies, available under the law against the judgment or decision challenged by the appeal, have been exhausted and if it is filed within a time limit of 60 days from the date on which the appellant received the decision on the last legal remedy that he/she used. 22. While examining the admissibility of the present appeal within the meaning of Article 16(1) of the Rules of the Constitutional Court, the Constitutional Court recalls that, by the Decision on Admissibility no. AP of 14 October 2008, it rejected as premature the appellant s earlier appeal lodged against the Ruling of the Cantonal Court no P Gž of 21 February 2008 and the Ruling of the Municipal Court no P P of 22 January 2008, because a decision on revision-appeal before the Supreme Court had not been adopted at the time of the adoption of the mentioned decision by the Constitutional Court. Given that the Ruling of the Supreme Court no P Rev of 28 July 2009 rejected the revision-appeal as inadmissible for formal reasons, the final decision in this case is the Ruling of the Cantonal Court no P Gž of 21 February Therefore, in accordance with its case-law the Constitutional Court (see Constitutional Court, Decision no. AP 2884/06 of 10 January 2008, available at the website of the Constitutional Court takes into account as the relevant date of lodging the appeal the date when the appeal, which was rejected as premature, was lodged. Given that the appellant received the mentioned Ruling of the Cantonal Court on 27 February 2008, and the appeal no. AP 816/08 was lodged on 17 March 2008, it follows that the appeal was lodged within a time limit of 60 days as prescribed by Article 16(1) of the Rules of the Constitutional Court, thereby meeting the admissibility requirement. Finally, the Constitutional Court holds that the appeal meets the requirements under Article 16(2) and (4) of the Rules of the Constitutional Court, for it is neither manifestly (prima facie) ill-founded, nor is there any other formal reason rendering the appeal inadmissible.

12 In view of the provisions of Article VI(3)(b) of the Constitution of Bosnia and Herzegovina, and Article 16(1), (2) and (4) of the Rules of the Constitutional Court, the Constitutional Court established that the relevant appeal meets the admissibility requirements. VII. Merits 24. The appellant challenges the mentioned rulings claiming that the said rulings violated her rights under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention, and under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention. Right to a fair trial 25. Article II(3) 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: 1 e) The right to a fair hearing in civil and criminal matters, and other rights relating to 2 criminal proceedings. Article 6(1) of the European Convention, in the relevant part, reads: 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. [ ] 26. As to the appellant s allegations on the violation of the right to a fair trial over erroneous application of the substantive law, the Constitutional Court points out that according to the case-law of the European Court and of the Constitutional Court, these courts are not called upon to review the conclusions of ordinary courts regarding facts of the case and application of the substantive and procedural law (see the European Court, Pronina v. Russia, Decision on Admissibility of 30 June 2005, Application no /01). Namely, the Constitutional Court does not have jurisdiction to substitute ordinary courts in assessing facts and evidence, but, generally speaking, it is the responsibility of the ordinary courts to assess facts and evidence they presented (see the European Court, Thomas v. United Kingdom, Judgment of 10 May 2005, Application no /02). It is the

13 13 responsibility of the Constitutional Court to examine whether the constitutional rights were violated or disregarded (the right to a fair trial, the right of access to court, the right to an effective legal remedy etc.), and whether the application of the law was possibly arbitrary or discriminatory. Thus, within the scope of appellate jurisdiction, the Constitutional Court exclusively tackles the issues of possible violations of constitutional rights or rights referred to in the European Convention in the proceedings before the ordinary courts. Accordingly, in the present case, the Constitutional Court will examine whether the proceedings as a whole were fair, as required by Article 6 paragraph 1 of the European Convention (see the Constitutional Court, Decision No. AP 20/05 of 18 May 2005, published in the Official Gazette of BiH, no. 58/05). 27. The appellant holds that the Municipal Court and the Cantonal Court had applied arbitrarily the material provisions of Article 54 of the Law on Civil Procedure. Therefore, the appellant claims that there was arbitrariness in the application of regulations, which falls under the scope of a fairness of proceedings (see, e.g. Decision of the Constitutional Court no. AP 1293/05 of 12 September 2006, paragraph 25 et seq.). The appellant also holds that the challenged decisions denied her access to court. 28. The Constitutional Court observes that the competent courts rejected the appellant s petition for the establishment of the existence of a common-law marriage, referring to the provisions of Article 54 of the Law on Civil Procedure thereby providing a reasoning that a lawsuit seeking establishment cannot seek the establishment of facts. In that respect, the Constitutional Court recalls that the disputed Article 54 of the Law on Civil Procedure, among other things, prescribes that the plaintiff may request in a lawsuit that the court establishes only the existence or non-existence of a right or legal relation or the authenticity or inauthenticity of a document, and that Article 3 of the Family Law of FBiH stipulates that a common-law marriage, under this Law, is a union of a woman and a man who are not married or in a common-law marriage with another person, which has lasted for a minimum of three years or less if they have a child out of that union. Besides, Articles 213, 230 through to 234, 263 and 380 of the Family Law prescribe the manner for the maintenance of common-law marriage partners and children from the common-law marriage, their property relations and the procedure of protection against domestic violence. 29. On the basis of the provisions of Article 213 of the Family Law, it is clear, among other things, that mutual maintenance of common-law marriage partners is an obligation and right, as prescribed by the Law, and that waiving one s right and obligation of maintenance has no legal

14 14 effect. Also, on the basis of the provisions of Articles 230 through to 234 of the Family Law, which regulate in detail the maintenance of common-law marriage partners, it follows that upon the cessation of a common-law marriage, a partner who meets conditions under Articles 3 and 224 of this Law may file a lawsuit for maintenance within one year from the day of the cessation of the common-law marriage. In addition, on the basis of the contents of the provisions of Article 2 of the Family Law it is evident that the legislator itself did not make any distinction between a marriage and a common-law marriage in respect of a legal relation. Namely, that provision stipulates that a family, under this Law, is a union of parents and children and other blood relatives, in-laws, adoptive parents and adoptees and persons from a common-law marriage if they live together in the same household. Therefore, the Constitutional Court holds that it follows undisputedly from the mentioned provisions of the Family Law regulating relations between common-law marriage partners, that a life in common-law marriage implies certain rights and obligations, and hence the existence of a legal relation between the persons who live or who had lived in a common-law marriage. 30. Additionally, as it follows from the reasons of the challenged rulings, ordinary courts concluded that the appellant may file such a claim only as a preliminary legal issue in some other civil or administrative procedure related to the exercise of other rights. In the opinion of the Constitutional Court, such inconsistency in considering that issue and the comprehension by the ordinary courts (in a sense that they consider the said issue to be simultaneously the establishment of facts and a preliminary issue), is contradictory with the very definition of the term preliminary issue in a manner in which it was provided in Article 12(1) of the Law on Civil Procedure, which the ordinary courts referred to in the challenged decisions. Namely, according to the mentioned provision, a preliminary issue implies precisely the issue of whether a right or legal relation exist, that is to say not a fact, and prescribes that the court itself may resolve the issue unless otherwise stipulated by special regulations. Since the ordinary courts themselves had concluded in the challenged decisions that the case concerned a preliminary issue, namely the establishment of whether a right or legal relation exist, it follows that, through the consistent application of the provisions of the Law on Civil Procedure (Articles 12 and 54), they were authorized and competent to examine whether the present case met conditions for the mentioned establishment, i.e. to decide on the merits of the appellant s claim. 31. In addition, the Constitutional Court observes that the appellant does not seek in the case at hand the exercise of a right (which is in any way whatsoever related to the existence of a common-

15 15 law marriage) in FBiH, but in the Republic of Croatia, which stems from the Notification issued by the Croatian Pension Insurance Fund Zagreb Regional Unit dated 16 February 2007 with which the appellant filed a claim for the exercise of a right to a family pension and which requested from the appellant the submission of a ruling establishing the common-law marriage. Considering the aforementioned, the Constitutional Court holds that references made by the ordinary courts to national regulations (the provisions of the Law on Administrative Procedure of FBiH and the Law on Civil Procedure of FBiH) are related to the resolution of a legal matter in the Republic of Croatia, thus referring the appellant to obtain a ruling establishing a common-law marriage in another state, and not in hers, is to say the least ill-founded. 32. In view of all the aforementioned, the Constitutional Court holds that the ordinary courts applied arbitrarily in the case at hand the provisions of Articles 12 and 54 of the Law on Civil Procedure, thereby interpreting that the common-law marriage is considered to be a fact and not a legal relation, which is in direct collision with the relevant provisions of Articles 2, 213, 230 through to 234, 263 and 380 of the Family Law, which point to the existence of a legal relation between the common-law marriage partners. 33. Therefore, the Constitutional Court holds that the appellant s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was violated. Other allegations 34. Bearing in mind that the violation of the right to a fair trial was established in the foregoing paragraphs, the Constitutional Court holds that it is not necessary to consider separately the appellant s allegations as to the 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. VIII. Conclusion 35. The Constitutional Court concludes that there is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention in the event where the competent courts applied arbitrarily the provisions of Articles 12 and 54 of the Law on Civil Procedure in the appellant s case, thereby interpreting that the

16 16 establishment of the existence of the common-law marriage is considered to be the establishment of a fact and not of a legal relation, since not a single legal provision refers to such an interpretation, but, instead it follows to the contrary from the provisions of Articles 2, 213, 230 through to 234, 263 and 380 of the Family Law that this case concerns a legal relation. 36. Pursuant to Article 61(1) and (2) and Article 64(1) of the Rules of the Constitutional Court, the Constitutional Court has decided as stated in the enacting clause of this decision. 37. According to Article VI(5) of the Constitution of Bosnia and Herzegovina, the decisions of the Constitutional Court shall be final and binding. Valerija Galić President Constitutional Court of Bosnia and Herzegovina