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FOURTH
SECTION
CASE OF PRALICA v. BOSNIA AND HERZEGOVINA
(Application
no. 38945/05)
JUDGMENT
STRASBOURG
27 January 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Pralica v. Bosnia
and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38945/05) against Bosnia and
Herzegovina lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a citizen of Bosnia and Herzegovina, Mr Sretko
Pralica (“the applicant”), on 14 October 2005.
- The
applicant was represented by Mr S. Bereta, a lawyer practising in
Prijedor. The Government of Bosnia and Herzegovina (“the
Government”) were represented by their Deputy Agent, Ms
Z. Ibrahimović.
- On
11 October 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1938 and lives in the vicinity of Prijedor.
- Prior
to the dissolution of the former Socialist Federal Republic of
Yugoslavia (“the SFRY”) the applicant deposited foreign
currency in his bank accounts at the then Privredna banka Sarajevo
Filijala Prijedor. In Bosnia and Herzegovina, as well as in other
successor States of the former SFRY, such savings are commonly
referred to as “old” foreign-currency savings (for the
relevant background information see Jeličić v. Bosnia
and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).
- Following
several unsuccessful attempts to withdraw his funds, the applicant
instituted proceedings, seeking the recovery of his entire “old”
foreign-currency savings and accrued interest.
- By a decision of the Prijedor Court of First Instance
of 4 September 1995 the Prijedorska banka (the legal successor of the
Privredna banka Sarajevo Filijala Prijedor) was ordered to pay the
applicant 254,725.85 German marks (DEM) and legal costs in the amount
of 2,000 dinars (approximately DEM 770 on the date of the judgment).
The judgment entered into force on 11 March 1996. On 26 December 1997
the Prijedor Court of First Instance issued a writ of execution
(rješenje o izvršenju).
- Although
domestic authorities took over the judgment debt, the judgment has
not yet been enforced.
II. RELEVANT LAW AND PRACTICE
- For
relevant law and practice see the admissibility decision in Jeličić,
cited above; the judgment in Jeličić v. Bosnia
and Herzegovina, no. 41183/02, ECHR 2006 ...; and
Pejaković and Others v. Bosnia and Herzegovina, nos.
337/04, 36022/04 and 45219/04, 18 December 2007.
THE LAW
- The
applicant complained of the non-enforcement of a final and
enforceable judgment in his favour. He relied on Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
Article
6, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.”
Article
1 of Protocol No. 1 to the Convention reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
I. ADMISSIBILITY
- The Government indicated two recent decisions of the
Constitutional Court of Bosnia and Herzegovina (“the
Constitutional Court”) finding violations of Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention in
circumstances similar to those in the present case (decision no.
CH/03/10999 of 9 May 2007 and decision no. AP 158/06 of 18 October
2007). While the Constitutional Court awarded compensation for
non-pecuniary damage in the amount of approximately 300 euros in one
case (decision no. CH/03/10999), it rejected a similar request in the
other case (decision no. AP 158/06). The Government claimed that
those decisions had been enforced on 31 August 2007 and 14 March 2008
respectively. Given the developments in the Constitutional Court's
case-law, the Government submitted that an appeal to that court
should now be considered an effective remedy within the meaning of
Article 35 § 1 of the Convention in respect of the
non-enforcement of judgments ordering the release of “old”
foreign-currency savings. Accordingly, they invited the Court to
declare the present application inadmissible on non-exhaustion
grounds, by reason of the applicant's failure to use that remedy.
- The applicant raised doubts as to the effectiveness of
that remedy without going into any details.
- The
general principles concerning the rule of exhaustion of domestic
remedies were outlined in Mirazović v. Bosnia and Herzegovina
((dec.), no. 13628/03, 16 May 2006). It should be reiterated above
all that, although there may be exceptions justified by the
particular circumstances of each case, the assessment of whether
domestic remedies have been exhausted is normally carried out with
reference to the date on which the application was lodged with it
(see Baumann v. France, no. 33592/96, § 47,
ECHR 2001 V, and Babylonová v. Slovakia,
no. 69146/01, § 44, ECHR 2006 ...).
- In
the present case, the Court does not see any reason to depart from
the above principle (see, by contrast, Brusco v. Italy (dec.),
no. 69789/01, ECHR 2001 IX; Nogolica v. Croatia
(dec.), no. 77784/01, ECHR 2002-VIII; Andrášik
and Others v. Slovakia (dec.), nos. 57984/00, 60226/00,
60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX;
and Michalak v. Poland (dec.), no. 24549/03, § 36, 1
March 2005). Since at the time when the applicant brought his
application to the Court an appeal to the Constitutional Court
offered no reasonable prospects of success in respect of his
complaints (see Pejaković and Others, cited above, §
22), he was not required to make use of that
remedy.
The
Government's objection is thus dismissed.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible. In accordance with
its decision to apply Article 29 § 3 of the
Convention (see paragraph 3 above), the Court will immediately
consider the merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The Court notes that the present case is practically
identical to Jeličić (cited above) and Pejaković
and Others (cited above) in which the Court found a violation of
Article 6 of the Convention as well as a violation of Article 1 of
Protocol No. 1 to the Convention. Considering the length of the
period of non-enforcement of the judgment in issue in the present
case (more than six years after the date of ratification of the
Convention by Bosnia and Herzegovina), and having examined all
relevant circumstances, the Court does not see any reason to depart
from its previous case-law.
There
has accordingly been a breach of Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
- It
must, however, be noted that a judgment in which the Court finds a
violation of the Convention or of its Protocols imposes on the
respondent State a legal obligation not just to pay those concerned
the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in its
domestic legal order to put an end to the violation found (see
Apostol v. Georgia, no. 40765/02, §§ 71-73,
ECHR 2006, and Marčić and Others v. Serbia,
no. 17556/05, §§ 64-65, 30 October 2007).
- Having
regard to its finding in the instant case, and without prejudice to
any other measures which may be deemed necessary, the Court considers
that the respondent State must secure the enforcement of the judgment
of 4 September 1995 by way of paying the applicant 130,632 euros
(EUR) plus any tax that may be chargeable (see Jeličić,
cited above, § 53, and Pejaković and Others, cited
above, § 31).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to secure the enforcement of the judgment of
4 September 1995 by way of paying the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 130,632
(one hundred and thirty thousand six hundred and thirty two euros),
plus any tax that may be chargeable, to be converted into convertible
marks at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 27 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
