Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes

Adriana Pranjic; Stjepo Pranjic

doi:doi:10.11648/j.ijls.20200303.18

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Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes

Adriana Pranjic, Stjepo Pranjic

Published in International Journal of Law and Society (Volume 3, Issue 3)

Received: 18 August 2020 Accepted: 7 September 2020 Published: 19 September 2020

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Abstract

The practice of BiH courts in resolving CHF loan agreement disputes is poor. By Decision, No. AP-962/20 and Decision, No. AP-3877/17 of the Constitutional Court of BiH, they were rejected as inadmissible appeals, as they were allegedly prima facio unfounded. Appeals were filed against the judgments of the FBiH Supreme Court. All judgments of the Supreme and lower courts in BiH are challenged because they were made in a decisive reference to the decision of the Supreme Court of the FBiH, No. 58 0 P 135023 16 Spp, dated 25.05.2016, which is a circumvention of rights and justice. In fact, in terms of Article 61 of the Law on Civil Procedure, “Official Gazette of the F BiH” no.: 53/03, 73/05, 19/06 and 98/15 (LCP), the Supreme Court, in that decision, expressed its understanding on legal issues from the subject of the loan agreement with a currency clause in CHF. It is obvious that these are not legal, but factual issues. If these were legal issues, then the courts would simply cite explicit answers to those questions as solutions to the law rather than constructing them linguistically. The first-instance court could not in any way refer to the legal understanding of the Supreme Court according to which the interest margin is sufficiently determinable without determining whether the contract contains information on the interest margin in the sense of Article 26, Article 50, Article 1065 and Article 1066 of the Law on Obligations, "Official Gazette of the SFRY," no. 29/78, 39/85, 45/89, 57/89, "Official Gazette of R BiH," no. 2/92, 13/93, 13/94, "Official Gazette of the F BiH," no. 29/03, 42/11. (LO). The courts could not reject the plaintiffs' claims for the return of unjustifiably higher interest collected, when this was proved by the Finding and the expert opinion.

Published in	International Journal of Law and Society (Volume 3, Issue 3)
DOI	10.11648/j.ijls.20200303.18
Page(s)	140-153
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2020. Published by Science Publishing Group

Keywords

Judicial Practice, A Currency Board, Foreign Currency Loan, Currency Clause Indexed to the CHF, Libor, Variable Interest Rate

References

[1]	Stjepo Pranjic, State Management: Foundations of New State Management and State Governance, University Press, Sarajevo, 2017. p. 344-398.
[2]	Finding and opinion of the Court Expert, no.: 58 0 P 102778 18 P 2, dated 23 August 2018, p. 8.
[3]	Jozo Cizmic, Commentary on the Law on Civil Procedure of the Federation of BiH, Privredna štampa, Sarajevo, 2009, p. 202.
[4]	Jim Marrs, The Trillion-Dollar Conspiracy, HarperCollins e-books, 2010.
[5]	Law on Obligatory Relations (LOR), published in the "Official Gazette of the SFRY," no. 29/78, 39/85, 45/89, 57/89, "Official Gazette of RBBH," no. 2/92, 13/93, 13/94, "Official Gazette of the F BiH," no. 29/03, 42/11.
[6]	Consumer Protection Law (CPL) in BiH, "Official Gazette of BiH, “no: 25/06 and 88/2015.
[7]	Silvija Petric, Legal Problems of Consumer Lending in the Croatian Legal System, Loan Agreement in Swiss Franc-Proceedings of the International Legal Conference, BL, 11.11.2016.
[8]	Judgment of the Municipal Court in Mostar No. 58 0 P 102778 18 P 2, dated 24 December 2018.
[9]	Decision of the Supreme Court of FBiH, No.: 58 0 P 135023 16 Spp, dated 25.05.2016.
[10]	Decision of the Mostar County Court, No.: 58 0 P 102 471 13 Gž dated 17 March 2014.
[11]	Report of a court expert in a legal matter, no.: 58 0 P 102778 11 P, Mostar, 14.05.2014. p. 13 point 15.
[12]	Genc Trnavci, Currency Clause in Swiss Francs in BiH: A Classic Case of Usury Leading into Debt Slavery or Fair Banking, Swiss Franc Loan Agreement - Proceedings of the International Legal Conference, Banja Luka, 11 November 2016. p. 93-98; p. 120.
[13]	Tamara C., Interpretive effect of European Law in Membership and before EU membership, Collected Papers of Zagreb Law Faculty, Vol. 56, 5/2006, p. 1443.
[14]	Stjepo Pranjic, Acts of implementation of currency clause in CHF and clause of variable interest rate are prohibited competition practices, Transition: Journal of Economics & Politics of Transition. Jul-Dec 2016, Vol. 18 Issue 37, p. 14-37.
[15]	Stjepo Pranjic, Loan Contracts approved in CHF are (not) void, Academy of Sciences and Arts of Bosnia and Herzegovina, Dialogue: Journal for Philosophy and Social Theory. 2014. No. 16. p. 84-113.
[16]	Consumer Law Compendium, Comparative Analysis, Edited by Prof. Dr. Hans chulte-Nölke in co-operation with Dr. Christian Twigg-Flesner and Dr. Martin Ebers April 07, C. Unfair Contract Terms Directive (93/13) 341 C. Unfair Contract Terms Directive (93/13), Drafted by Martin Ebers, http://www.euconsumelaw.org/consumerstudy_part2c_en.pdf.
[17]	Laxton, Douglas and Eswar Prasad, 2001, Possible Effects of European Monetary Union on Switzerland A Case Study of Policy Dilemmas Caused by Low Inflation and the Nominal Interest Rate Floor, Journal of Policy Modeling, Vol. 23, Issue 5 (July) pp. 531-51.

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APA Style

Adriana Pranjic, Stjepo Pranjic. (2020). Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. International Journal of Law and Society, 3(3), 140-153. https://doi.org/10.11648/j.ijls.20200303.18

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ACS Style

Adriana Pranjic; Stjepo Pranjic. Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. Int. J. Law Soc. 2020, 3(3), 140-153. doi: 10.11648/j.ijls.20200303.18

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AMA Style

Adriana Pranjic, Stjepo Pranjic. Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. Int J Law Soc. 2020;3(3):140-153. doi: 10.11648/j.ijls.20200303.18

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@article{10.11648/j.ijls.20200303.18,
  author = {Adriana Pranjic and Stjepo Pranjic},
  title = {Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes},
  journal = {International Journal of Law and Society},
  volume = {3},
  number = {3},
  pages = {140-153},
  doi = {10.11648/j.ijls.20200303.18},
  url = {https://doi.org/10.11648/j.ijls.20200303.18},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20200303.18},
  abstract = {The practice of BiH courts in resolving CHF loan agreement disputes is poor. By Decision, No. AP-962/20 and Decision, No. AP-3877/17 of the Constitutional Court of BiH, they were rejected as inadmissible appeals, as they were allegedly prima facio unfounded. Appeals were filed against the judgments of the FBiH Supreme Court. All judgments of the Supreme and lower courts in BiH are challenged because they were made in a decisive reference to the decision of the Supreme Court of the FBiH, No. 58 0 P 135023 16 Spp, dated 25.05.2016, which is a circumvention of rights and justice. In fact, in terms of Article 61 of the Law on Civil Procedure, “Official Gazette of the F BiH” no.: 53/03, 73/05, 19/06 and 98/15 (LCP), the Supreme Court, in that decision, expressed its understanding on legal issues from the subject of the loan agreement with a currency clause in CHF. It is obvious that these are not legal, but factual issues. If these were legal issues, then the courts would simply cite explicit answers to those questions as solutions to the law rather than constructing them linguistically. The first-instance court could not in any way refer to the legal understanding of the Supreme Court according to which the interest margin is sufficiently determinable without determining whether the contract contains information on the interest margin in the sense of Article 26, Article 50, Article 1065 and Article 1066 of the Law on Obligations, "Official Gazette of the SFRY," no. 29/78, 39/85, 45/89, 57/89, "Official Gazette of R BiH," no. 2/92, 13/93, 13/94, "Official Gazette of the F BiH," no. 29/03, 42/11. (LO). The courts could not reject the plaintiffs' claims for the return of unjustifiably higher interest collected, when this was proved by the Finding and the expert opinion.},
 year = {2020}
}

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TY - JOUR
T1 - Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes
AU - Adriana Pranjic
AU - Stjepo Pranjic
Y1 - 2020/09/19
PY - 2020
N1 - https://doi.org/10.11648/j.ijls.20200303.18
DO - 10.11648/j.ijls.20200303.18
T2 - International Journal of Law and Society
JF - International Journal of Law and Society
JO - International Journal of Law and Society
SP - 140
EP - 153
PB - Science Publishing Group
SN - 2640-1908
UR - https://doi.org/10.11648/j.ijls.20200303.18
AB - The practice of BiH courts in resolving CHF loan agreement disputes is poor. By Decision, No. AP-962/20 and Decision, No. AP-3877/17 of the Constitutional Court of BiH, they were rejected as inadmissible appeals, as they were allegedly prima facio unfounded. Appeals were filed against the judgments of the FBiH Supreme Court. All judgments of the Supreme and lower courts in BiH are challenged because they were made in a decisive reference to the decision of the Supreme Court of the FBiH, No. 58 0 P 135023 16 Spp, dated 25.05.2016, which is a circumvention of rights and justice. In fact, in terms of Article 61 of the Law on Civil Procedure, “Official Gazette of the F BiH” no.: 53/03, 73/05, 19/06 and 98/15 (LCP), the Supreme Court, in that decision, expressed its understanding on legal issues from the subject of the loan agreement with a currency clause in CHF. It is obvious that these are not legal, but factual issues. If these were legal issues, then the courts would simply cite explicit answers to those questions as solutions to the law rather than constructing them linguistically. The first-instance court could not in any way refer to the legal understanding of the Supreme Court according to which the interest margin is sufficiently determinable without determining whether the contract contains information on the interest margin in the sense of Article 26, Article 50, Article 1065 and Article 1066 of the Law on Obligations, "Official Gazette of the SFRY," no. 29/78, 39/85, 45/89, 57/89, "Official Gazette of R BiH," no. 2/92, 13/93, 13/94, "Official Gazette of the F BiH," no. 29/03, 42/11. (LO). The courts could not reject the plaintiffs' claims for the return of unjustifiably higher interest collected, when this was proved by the Finding and the expert opinion.
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Author Information

Adriana Pranjic

Faculty of Law, University in Mostar, Mostar, Bosnia and Herzegovina
Stjepo Pranjic

Faculty of Law, University Vitez, Travnik, Bosnia and Herzegovina

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APA Style

Adriana Pranjic, Stjepo Pranjic. (2020). Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. International Journal of Law and Society, 3(3), 140-153. https://doi.org/10.11648/j.ijls.20200303.18

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ACS Style

Adriana Pranjic; Stjepo Pranjic. Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. Int. J. Law Soc. 2020, 3(3), 140-153. doi: 10.11648/j.ijls.20200303.18

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AMA Style

Adriana Pranjic, Stjepo Pranjic. Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes. Int J Law Soc. 2020;3(3):140-153. doi: 10.11648/j.ijls.20200303.18

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@article{10.11648/j.ijls.20200303.18,
  author = {Adriana Pranjic and Stjepo Pranjic},
  title = {Critical Review of the Practice of Courts of Bosnia and Herzegovina in Resolving CHF Loan Disputes},
  journal = {International Journal of Law and Society},
  volume = {3},
  number = {3},
  pages = {140-153},
  doi = {10.11648/j.ijls.20200303.18},
  url = {https://doi.org/10.11648/j.ijls.20200303.18},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20200303.18},
  abstract = {The practice of BiH courts in resolving CHF loan agreement disputes is poor. By Decision, No. AP-962/20 and Decision, No. AP-3877/17 of the Constitutional Court of BiH, they were rejected as inadmissible appeals, as they were allegedly prima facio unfounded. Appeals were filed against the judgments of the FBiH Supreme Court. All judgments of the Supreme and lower courts in BiH are challenged because they were made in a decisive reference to the decision of the Supreme Court of the FBiH, No. 58 0 P 135023 16 Spp, dated 25.05.2016, which is a circumvention of rights and justice. In fact, in terms of Article 61 of the Law on Civil Procedure, “Official Gazette of the F BiH” no.: 53/03, 73/05, 19/06 and 98/15 (LCP), the Supreme Court, in that decision, expressed its understanding on legal issues from the subject of the loan agreement with a currency clause in CHF. It is obvious that these are not legal, but factual issues. If these were legal issues, then the courts would simply cite explicit answers to those questions as solutions to the law rather than constructing them linguistically. The first-instance court could not in any way refer to the legal understanding of the Supreme Court according to which the interest margin is sufficiently determinable without determining whether the contract contains information on the interest margin in the sense of Article 26, Article 50, Article 1065 and Article 1066 of the Law on Obligations, "Official Gazette of the SFRY," no. 29/78, 39/85, 45/89, 57/89, "Official Gazette of R BiH," no. 2/92, 13/93, 13/94, "Official Gazette of the F BiH," no. 29/03, 42/11. (LO). The courts could not reject the plaintiffs' claims for the return of unjustifiably higher interest collected, when this was proved by the Finding and the expert opinion.},
 year = {2020}
}

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