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FOURTH
SECTION
CASE OF
SULJAGIĆ v. BOSNIA AND HERZEGOVINA
(Application
no. 27912/02)
JUDGMENT
STRASBOURG
3
November 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 Suljagić 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27912/02) 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 Mustafa
Suljagić (“the applicant”), on 2 July 2002.
- The
applicant alleged that the domestic legislation on “old”
foreign-currency savings failed to strike a “fair balance”
between the relevant interests in the light of Article 1 of Protocol
No. 1 to the Convention.
- By
a decision of 20 June 2006 the Court joined to the merits the
question of the applicant's victim status and declared the
application admissible.
- The applicant and the Government each filed further
written observations (Rule 59 § 1). In addition, third-party
comments were received from two associations, the Association for the
Protection of Foreign-Currency Savers in Bosnia and Herzegovina
(UdruZenje za zaštitu deviznih štediša u
Bosni i Hercegovini) from the Federation of Bosnia and
Herzegovina and the Association for the Return of Foreign-Currency
Savings in Bosnia and Herzegovina and Diaspora (UdruZenje građana
za povrat stare devizne štednje u Bosni i Hercegovini i
dijaspori) from the Republika Srpska, which had been invited to
intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2). The parties replied to each other's
observations and the third parties' comments at the hearing (Rule 44
§ 5).
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 10 March 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms M. Mijić,
Agent,
Ms Z. Ibrahimović, Deputy Agent,
Ms B.
KujundZić, Assistant Agent,
Mr A. DZombić,
Minister of Finance of the Republika Srpska,
Ms D. Aleksić,
Assistant Minister of Finance of the Republika Srpska,
Mr T.
Ćurak, Assistant Minister of Finance of the Federation of Bosnia
and Herzegovina,
Mr E. Kubat, Adviser to Minister of Finance of
the Federation of Bosnia and Herzegovina,
Mr M. Lučić,
Director for Finance of the Brčko District of Bosnia and
Herzegovina, Advisers;
(b) for the applicant
Mr E.
Suljagić, Counsel,
Mr S. Imamović, Assistant
Counsel.
The
Court heard addresses by Mr Suljagić and Ms Mijić.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Relevant background to the present case
- The present case relates to the issue of “old”
foreign-currency deposits (foreign currency deposited before the
dissolution of the Socialist Federal Republic of Yugoslavia –
“the SFRY”).
- Until the 1989/90 economic reforms (the so-called
Marković reforms, named after the then Prime Minister Ante
Marković), the commercial banking system of the SFRY consisted
of self-managed basic and associated banks. Basic banks, founded and
nominally controlled by socially owned enterprises, carried on
day-to-day commercial banking activities. Two or more basic banks
could form an associated bank through a self-management agreement,
while preserving their legal personality. In the SFRY, there were
more than 150 basic banks and nine associated banks (namely Jugobanka
Beograd, Beogradska udruZena banka Beograd, Vojvođanska banka
Novi Sad, Kosovska banka Priština, UdruZena banka Hrvatske
Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo,
Stopanska banka Skopje and Investiciona banka Titograd).
- Hard-pressed for hard currency as it was, the SFRY made
it attractive for its expatriate workers and other citizens to
deposit their foreign currency with commercial banks based in the
SFRY: such deposits earned high interest (the annual interest rate
often exceeded 10%) and were guaranteed by the State (see, for
example, section 14(3) of the Foreign-Currency Transactions Act 1985
and section 76(1) of the Banks and Other Financial Institutions Act
1989).
- The
Foreign-Currency Transactions Act 1977
introduced a system for redepositing of foreign currency by
commercial banks with the National Bank of Yugoslavia. Although the
system was optional, it allowed commercial banks to shift the
currency risk to the State and practically all foreign currency was
thus redeposited. In addition, the National Bank of Yugoslavia was
required to grant national-currency loans (initially, interest-free)
to commercial banks to the value of the redeposited foreign currency.
It should be underlined, however, that such redepositing was as a
rule only a paper transaction, because commercial banks had
insufficient liquid funds: it would appear that commercial banks
redeposited in total 12.2 billion United States dollars (USD), out of
which only USD 1.7 billion (approximately 14%) was actually
transferred to the National Bank of Yugoslavia (see Kovačić
and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and
48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP
164/04 of the Constitutional Court of Bosnia and Herzegovina of 1
April 2006, § 53). In 1988 the system of redeposits was brought
to an end (see section 103 of the Foreign-Currency Transactions Act
1985, as amended on 15 October 1988).
- Problems resulting from the foreign and domestic debt
of the SFRY caused a monetary crisis in the 1980s. The national
economy was on the verge of collapse and the SFRY resorted to
emergency measures, such as statutory restrictions on the repayment
of foreign-currency deposits (see section 71 of the Foreign-Currency
Transactions Act 1985). As a result, foreign-currency deposits were
practically frozen.
- Within the framework of the Marković reforms, the
SFRY abolished the system of basic and associated banks described
above. This shift in the banking regulations allowed some basic banks
to opt for an independent status, while other basic banks became
branches (without legal personality) of the associated banks to which
they had beforehand belonged.
- Some important features of the banking system
remained, however, unaffected by the reforms. First of all,
commercial banks remained under the regime of “social
ownership” – a concept which, while it does exist in
other countries, was particularly highly developed in the SFRY.
Secondly, both commercial banks and the State had financial
obligations arising from foreign-currency savings: depositors were
entitled to collect their deposits at any time, together with
accumulated interest, from commercial banks (see sections 1035 and
1045 of the Civil Obligations Act 1978)
or, in the event of a commercial bank's “manifest insolvency”
or bankruptcy, from the State (see sections 1004(2) and 1007(2) of
the Civil Obligations Act 1978, section 18 of the Banks and Other
Financial Institutions Insolvency Act 1989
and a decision of the SFRY Government of 23 May 1990).
- In
1991/92 the SFRY ceased to exist. It was replaced by five successor
States: Bosnia and Herzegovina, Croatia, the Federal Republic of
Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav
Republic of Macedonia” and Slovenia.
- A brutal war started in Bosnia and Herzegovina shortly
after its declaration of independence. During the war, Bosnia and
Herzegovina took over the statutory guarantee for “old”
foreign-currency savings from the SFRY (pursuant to section 6 of the
SFRY Legislation Application Act 1992).
Furthermore, the concept of “social ownership” was
abandoned (see the Social Ownership Transformation Act 1993
and the Social Ownership Transformation Act 1994).
As a result, all commercial banks based in Bosnia and Herzegovina
were effectively nationalised. While the use of “old”
foreign-currency savings was allowed in some exceptional situations
during the war, it would appear that this possibility remained only
theoretical (see a decision of the Presidency of the Republic of
Bosnia and Herzegovina of 18 February 1993
and a decision of the National Bank of the Republika Srpska of 17
June 1993).
- On
14 December 1995 the General Framework Agreement for Peace in Bosnia
and Herzegovina (“the Dayton Peace Agreement”) entered
into force. It confirmed the continuation of the legal existence of
Bosnia and Herzegovina as a State, while modifying its internal
structure (Article 1 § 1 of Annex 4 to the Dayton Peace
Agreement, named the “Constitution of Bosnia and Herzegovina”).
In accordance with Article 1 § 3 of Annex 4, Bosnia and
Herzegovina consists of two Entities: the Federation of Bosnia and
Herzegovina and the Republika Srpska. The Dayton Peace Agreement
failed to resolve the Inter-Entity Boundary Line in the Brčko
area, but the parties agreed to a binding arbitration in this regard
under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace
Agreement). Meanwhile, the rural parts of the pre-war Brčko
municipality remained under the control of the Federation of
Bosnia and Herzegovina and the town of Brčko
under the control of the Republika Srpska. An arbitral
tribunal issued its final award on 5 March 1999. It suspended the
legal authority of the Entities within the whole territory of the
pre-war Brčko
municipality and transferred all of the Entity powers to the
newly-created Brčko
District under the exclusive sovereignty of Bosnia and Herzegovina
and international supervision. The Brčko
District was formally inaugurated on 8 March 2000. Nevertheless,
Entity legislation continued to apply in the District until modified
by the Supervisor of Brčko
or the District Assembly. All Entity legislation ceased to have legal
effect in the District on 4 August 2006.
- On 28 November 1997 the Federation of Bosnia and
Herzegovina assumed full liability for “old”
foreign-currency savings in locally based commercial banks in order
to prepare them for privatisation (in accordance with section 3(1) of
the Claims Settlement Act 1997
and the Non-Residents' Claims Settlement Decree 1999).
While withdrawal remained impossible, residents of that Entity were
given the possibility of using their “old”
foreign-currency savings to purchase the State-owned flats in which
they lived (where this was indeed the case) and certain State-owned
companies (see section 18 of the Claims Settlement Act 1997, as
amended on 21 August 2004 and on 7 November 2007).
- Similarly, the Republika Srpska assumed full liability
for “old” foreign-currency savings in commercial banks
based there (see section 20 of the Opening Balance Sheets (Banks) Act
1998, as amended on 8 January 2002).
However, unlike in the Federation of Bosnia and Herzegovina, where
the liability shifted simultaneously with respect to all commercial
banks, in the Republika Srpska the liability shifted for each
commercial bank upon its privatisation. The relevant dates for the
two main commercial banks with “old” foreign-currency
deposits, the Banjalučka banka and the Kristal banka, were 18
January and 17 April 2002 respectively. The privatisation process was
completed in the Republika Srpska in respect of commercial banks on
31 December 2002. Residents of that Entity were also given the
possibility of using their “old” foreign-currency savings
to purchase the State-owned flats in which they lived and certain
State-owned companies (see section 19 of the Privatisation of
Companies Act 1998).
- In the course of 2002 all commercial banks in the
Brčko District were privatised by the
Entities through an agreement with the District
and with the approval of the Supervisor of Brčko.
- Legislation providing for the use of “old”
foreign-currency savings in the privatisation process had limited
appeal and, moreover, led to abuses: an unofficial market emerged on
which such savings were sometimes sold for no more than 3% of their
nominal value. In 2004, in an attempt to remedy the situation, the
Entities and the District agreed to recompense “old”
foreign-currency savers in cash and government bonds and set up
repayment schemes to this effect. However, pursuant to decision U
14/05 of the Constitutional Court of Bosnia and Herzegovina of 2
December 2005, the three repayment schemes were replaced by one for
the entire territory of Bosnia and Herzegovina (see “Relevant
domestic law and practice” below).
B. The present case
- The applicant was born in 1935 and lives in the
vicinity of Srebrenik, in Bosnia and Herzegovina.
- He
worked across Europe as a mailman, construction worker and handyman
in the 1970s and 1980s and deposited foreign currency earned abroad
with a basic bank based in Tuzla, a member of the Privredna banka
Sarajevo. During the Marković reforms the bank became a separate
entity, named Tuzlanska banka. In 1994 it was nationalised (see
paragraph 14 above) and in 1998 it was sold to a commercial bank
based in Slovenia (Nova Ljubljanska banka).
- After
several failed attempts to withdraw his funds, the applicant
complained to the Human Rights Chamber (a human-rights body set up
under Annex 6 to the Dayton Peace Agreement). By a decision of
6 April 2005 (decision CH/98/375 et al.), the Human
Rights Commission, the legal successor of the Human Rights Chamber,
found the contemporary legislation to be contrary to Article 6 of the
Convention (on account of the lack of procedural guarantees) and
Article 1 of Protocol No. 1 to the Convention (on account of the lack
of a fair balance between the relevant interests). Besides some
general measures, it awarded the applicant 500 convertible marks
(BAM)
in respect of non-pecuniary damage and legal costs.
- On 29 December 2006 the competent verification agency
assessed the amount of the applicant's “old”
foreign-currency savings at BAM 269,275.21 (see paragraph 27
below).
- On 11 June 2007 the applicant received BAM 1,000 (see
paragraph 29 below). On 14 May 2009 he received the first
instalments of the principal debt and of interest on the bonds, both
due on 27 September 2008, in the total amount of BAM 4,237.44
(see paragraph 31 below).
- It
would appear that the government bonds due on 31 March 2008 have not
yet been issued (see paragraph 30 below) and that the second
instalment of interest on the bonds, due on 27 March 2009, has not
yet been paid (see paragraph 31 below).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- For
the relevant law and practice, see the admissibility decision in
Jeličić v. Bosnia and Herzegovina (dec.), no.
41183/02, ECHR 2005 XII; Suljagić v. Bosnia and
Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment
in Jeličić v. Bosnia and Herzegovina, no. 41183/02,
ECHR 2006-XII.
- Furthermore, the Old Foreign-Currency Savings Act
2006
entered into force on 15 April 2006 (“the 2006 Act”).
Bosnia and Herzegovina undertook to recompense original deposits in
locally based banks and interest accrued by 31 December 1991 at the
original rate, less any funds already used (see paragraphs 14 and 16-17
above). Interest accrued from 1 January 1992 until 15 April 2006
is to be cancelled and calculated afresh at an annual rate of 0.5%.
The assessment of the amounts due to each claimant is to be carried
out under an administrative procedure by verification agencies. The
deadline for submitting an application to this effect has been
extended on several occasions.
- The Constitutional Court of Bosnia and Herzegovina has
examined the constitutionality of the provision concerning the
reduction of the interest rate to 0.5% for the period from 1 January
1992 until 15 April 2006 and considered it to be justified given the
overall circumstances, notably the need to reconstruct the national
economy following a devastating war (see decision U 13/06 of 28 March
2008, § 28).
- All claimants that have obtained verification
certificates (see the penultimate sentence of paragraph 27 above) are
entitled to a cash payment of up to BAM 1,000 in the Federation of
Bosnia and Herzegovina and the Brčko District and up to BAM
2,000 in the Republika Srpska. Any remaining amount will then be
reimbursed in government bonds.
- In accordance with the 2006 Act, government bonds were
to be issued by 31 March 2008. They should be amortised by 31
December 2016 at the latest and earn interest at an annual rate of
2.5%. While it had initially been planned to issue State bonds
through the Central Bank, on 12 January 2008 the Republika
Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the
RS Act”),
cutting the amortisation period for government bonds down to five
years, and issued its own Entity bonds on 28 February 2008. On 4
October 2008 the Constitutional Court of Bosnia and Herzegovina
declared the RS Act constitutional (decision U 3/08 of 4 October
2008). It decided that the constituent units (the Entities and the
District) had jurisdiction to regulate the matter of “old”
foreign-currency savings, provided that they remained within the
framework of the 2006 Act. Following this decision, the Central Bank
refused to issue government bonds only for some constituent units. As
a result, the Federation of Bosnia and Herzegovina and the Brčko
District had to issue their own bonds. While the Brčko District
did so on 30 June 2009, it would appear that bonds have not yet been
issued in the Federation of Bosnia and Herzegovina.
- Meanwhile, amortisation plans were adopted on 21
February 2008 for the Republika Srpska
and on 9 April 2008 for the Federation of Bosnia and Herzegovina and
the Brčko District.
On 24 June 2009 a new amortisation plan was adopted for the Brčko
District which is along the lines of that of 9 April 2008.
In
the Republika Srpska, bonds are to be amortised by 28 February 2013
in ten instalments (on 28 February and 28 August every year from
28 August 2008 to 28 February 2013) together with interest on
the bonds (at an annual rate of 2.5%). The first three instalments
were paid, as planned, on 28 August 2008, 28 February and 28 August
2009. In the event of late payment, default interest is to be paid at
the statutory rate.
In
the Federation of Bosnia and Herzegovina, bonds are to be amortised
by 27 March 2015 in eight instalments as follows: 7.5% of the entire
debt is to be paid on 27 September 2008, 9% on 27 September 2009, 11%
on 27 September 2010, 12% on 27 September 2011, 13% on 27
September 2012, 15% on 27 September 2013, 15.5% on 27 September 2014
and 17% on 27 March 2015. Interest on the bonds (at an annual rate of
2.5%) is to be paid on 27 March and 27 September every year from 27
September 2008 to 27 March 2015. The first instalments of the
principal debt and of interest on the bonds (both due on 27 September
2008) were paid on 14 May 2009. It would appear that the instalments
due on 27 March and 27 September 2009 have not yet been paid.
Lastly,
under the old amortisation plan, the Brčko District paid the
first instalments of the principal debt and of interest on the bonds
(both due on 27 September 2008) on 24 December 2008 and the
second instalment of interest on the bonds (due on 27 March 2009) on
11 June 2009. Pursuant to the new plan, bonds are now to be amortised
by 31 March 2015 in seven instalments as follows: 9.5% of the entire
debt is to be paid on 30 September 2009, 11.5% on 30 September
2010, 12.5% on 30 September 2011, 14% on 30 September 2012,
16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on
31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is
to be paid on 31 March and 30 September every year from 30
September 2009 to 31 March 2015. The instalment due on 30 September
2009 has been paid in time. In case of the late payment of any
forthcoming instalment, default interest is to be paid at the
statutory rate.
- Since government bonds are redeemable before their
maturity, once issued, they may be traded on the Stock Exchange. In
the Republika Srpska, their current trade price on the Stock Exchange
is around 90% of their nominal value. Given that government bonds
have been issued in the Brčko District only recently, their
trade price on the Stock Exchange has not yet consolidated. As
mentioned above, it would appear that bonds have not yet been issued
in the Federation of Bosnia and Herzegovina.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
present case is fundamentally about the compliance of the domestic
legislation on “old” foreign-currency savings with the
conditions laid down by Article 1 of Protocol No. 1, which is worded
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.”
A. Applicability of Article 1 of Protocol No. 1
- The
concept of “possessions” has an autonomous meaning which
is not limited to the ownership of material goods. In the same way as
material goods, certain other rights and interests constituting
assets can also be regarded as “possessions” for the
purposes of Article 1 of Protocol No. 1 (see, among many authorities,
Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR
2004 V). Claims, provided that they have a sufficient basis in
domestic law, qualify as an “asset” and can thus be
regarded as “possessions” within the meaning of this
provision (see Kopecký v. Slovakia [GC], no. 44912/98,
§ 52, ECHR 2004 IX).
- The
applicant in the present case, upon depositing foreign currency with
a commercial bank, acquired an entitlement to collect at any time his
deposit, together with accumulated interest, from the commercial bank
or, in the event of its “manifest insolvency” or
bankruptcy, from the State (see paragraph 12 above). While it is true
that towards the end of its existence, the SFRY and its commercial
banking sector had difficulties in honouring their financial
obligations (see paragraph 10 above), the entitlement subsisted.
- Despite
varying approaches to this issue following the dissolution of the
SFRY and the shifting of responsibilities from one level of
government to another (see paragraphs 14, 16-17, 19 and 27-32 above),
there has never been any doubt that Bosnia and Herzegovina and/or its
constituent units had a legal duty to repay “old”
foreign-currency savings in locally based commercial banks. In such
circumstances, the Court concludes that the applicant had, and still
has, a claim amounting to a “possession” within the
meaning of Article 1 of Protocol No. 1. The guarantees of that
provision therefore apply to the present case.
B. Compliance with Article 1 of Protocol No. 1
1. Applicable rule of Article 1 of Protocol No. 1
- As
the Court has stated on a number of occasions, Article 1 of Protocol
No. 1 comprises three distinct rules: the first rule, set out in the
first sentence of the first paragraph, is of a general nature and
enunciates the principle of the peaceful enjoyment of property; the
second rule, contained in the second sentence of the first paragraph,
covers deprivation of possessions and subjects it to certain
conditions; the third rule, stated in the second paragraph,
recognises that the Contracting Parties are entitled, among other
things, to control the use of property in accordance with the general
interest. The three rules are not, however, distinct in the sense of
being unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, among
many authorities, Beyeler v. Italy [GC], no. 33202/96, §
98, ECHR 2000 I).
- For
many years, the applicant in the present case has been unable to
freely dispose of his “old” foreign-currency savings. At
the time of the introduction of his application (2 July 2002) and,
more importantly, the date of the ratification of Protocol No. 1 by
Bosnia and Herzegovina (12 July 2002), he could use those funds only
to purchase certain State-owned companies (see paragraph 16 above).
As he was the owner of the house in which he lived, the possibility
of buying a State-owned flat was not open to the applicant. The 2004
legislation then followed (see paragraph 19 above) and finally the
current legislation (see paragraphs 27-32 above), each limiting the
use of “old” foreign-currency savings. This has not been
contested before the Court.
In
such circumstances, the present case falls to be examined under the
third rule of Article 1 of Protocol No. 1 (see also Trajkovski v.
“the former Yugoslav Republic of Macedonia” (dec.),
no. 53320/99, ECHR 2002 IV).
2. General principles
- The
general principles were recently restated in Broniowski, cited
above, §§ 147-51 (references omitted).
(a) Principle of lawfulness
- The
first and most important requirement of Article 1 of Protocol No. 1
is that any interference by a public authority with the peaceful
enjoyment of possessions should be lawful: the second sentence of the
first paragraph authorises a deprivation of possessions only “subject
to the conditions provided for by law” and the second paragraph
recognises that States have the right to control the use of property
by enforcing “laws”. Moreover, the rule of law, one of
the fundamental principles of a democratic society, is inherent in
all the Articles of the Convention.
The
principle of lawfulness also presupposes that the applicable
provisions of domestic law are sufficiently accessible, precise and
foreseeable in their application.
(b) Principle of a legitimate aim in the
public/general interest
- Any
interference with the enjoyment of a right or freedom recognised by
the Convention must pursue a legitimate aim. By the same token, in
cases involving a positive duty, there must be a legitimate
justification for the State's inaction. The principle of a “fair
balance” inherent in Article 1 of Protocol No. 1 itself
presupposes the existence of a general interest of the community.
Moreover, it should be reiterated that the various rules incorporated
in Article 1 are not distinct, in the sense of being unconnected, and
that the second and third rules are concerned only with particular
instances of interference with the right to the peaceful enjoyment of
property. One of the effects of this is that the existence of a
“public interest” required under the second sentence, or
the “general interest” referred to in the second
paragraph, are in fact corollaries of the principle set forth in the
first sentence, so that an interference with the exercise of the
right to the peaceful enjoyment of possessions within the meaning of
the first sentence of Article 1 must also pursue an aim in the public
interest.
- Because of their direct knowledge of their society and
its needs, the national authorities are in principle better placed
than the international judge to appreciate what is “in the
public interest”. Under the system of protection established by
the Convention, it is thus for the national authorities to make the
initial assessment as to the existence of a problem of public concern
warranting measures to be applied in the sphere of the exercise of
the right of property, including deprivation or control of property.
Accordingly, the national authorities enjoy a wide margin of
appreciation in this field.
Furthermore,
the notion of “public interest” is necessarily extensive.
In particular, the decision to enact laws expropriating or
controlling property or affording publicly funded compensation for
expropriated property will commonly involve consideration of
political, economic and social issues. The Court has declared that,
finding it natural that the margin of appreciation available to the
legislature in implementing social and economic policies should be a
wide one, it will respect the legislature's judgment as to what is
“in the public interest” unless that judgment is
manifestly without reasonable foundation. This logic applies to such
fundamental changes of a country's system as the transition from a
totalitarian regime to a democratic form of government, the reform of
the State's political, legal and economic structure and indeed the
dissolution of the State followed by a brutal war, phenomena which
inevitably involve the enactment of large-scale economic and social
legislation.
(c) Principle of a “fair balance”
- Both
an interference with the peaceful enjoyment of possessions and an
abstention from action must strike a fair balance between the demands
of the general interest of the community and the requirements of the
protection of the individual's fundamental rights.
The
concern to achieve this balance is reflected in the structure of
Article 1 of Protocol No. 1 as a whole. In particular, there
must be a reasonable relationship of proportionality between the
means employed and the aim sought to be realised by any measures
applied by the State, including measures depriving a person of his of
her possessions. In each case involving the alleged violation of that
Article the Court must, therefore, ascertain whether by reason of the
State's action or inaction the person concerned had to bear a
disproportionate and excessive burden.
- In
assessing compliance with Article 1 of Protocol No. 1, the Court must
make an overall examination of the various interests in issue,
bearing in mind that the Convention is intended to safeguard rights
that are “practical and effective”. It must look behind
appearances and investigate the realities of the situation complained
of. That assessment may involve not only the relevant compensation
terms – if the situation is akin to the taking of property –
but also the conduct of the parties, including the means employed by
the State and their implementation. In that context, it should be
stressed that uncertainty – be it legislative, administrative
or arising from practices applied by the authorities – is a
factor to be taken into account in assessing the State's conduct.
Indeed, where an issue in the general interest is at stake, it is
incumbent on the public authorities to act in good time, in an
appropriate and consistent manner.
3. Application of the above principles to the present
case
(a) The applicant's submissions
- While
recognising improvements in the current legislation, the applicant
maintained that it was still incompatible with Article 1 of Protocol
No. 1. First of all, according to his understanding of the current
legislation, he would receive no payment in cash other than the
initial payment of BAM 1,000. He would receive government bonds
only at the end of the amortisation period (in 2015), which he would
then have to sell on an unofficial market, most likely for a fraction
of their nominal value. The applicant considered this to be
unacceptable given notably his age and poor health. Secondly, he
complained about the interest rate for the period from 1 January
1992 until 15 April 2006 (0.5%). Lastly, the applicant maintained
that the current legislation lacked guarantees that the necessary
funds would indeed be allocated on time.
(b) The Government's submissions
- The Government acknowledged that the domestic
authorities had assumed full liability for “old”
foreign-currency savings in locally based commercial banks. According
to preliminary data, the associated public debt exceeded 1 billion
euros (EUR). In view of various other financial obligations of
different levels of government and the overall circumstances,
including the dissolution of the SFRY in 1991/92 and the subsequent
war, the Government maintained that the current legislation was the
best solution feasible. In support of their argument, they underlined
that the legislation had been prepared with the assistance of the
International Monetary Fund. As regards the interest rate for the
period from 1 January 1992 until 15 April 2006, which the
applicant particularly criticised, the Government claimed that it
corresponded to the average interest rate applicable to overnight
foreign-currency deposits for the same period. Lastly, they dismissed
the applicant's concerns as regards the ability of the domestic
authorities to implement the current legislation. Despite initial
delays in the Federation of Bosnia and Herzegovina and the Brčko
District, the Government emphasised that measures had been taken,
including loans from commercial banks, to ensure timely payment of
the forthcoming instalments.
(c) The third parties' submissions
- The third parties, in their written submissions to the
Court, accused all levels of government of incompetence and
corruption. They criticised above all the 1997 legislation of the
Federation of Bosnia and Herzegovina and the equivalent legislation
in the Republika Srpska. Allegedly, the conditions had been such that
“old” foreign-currency savers had no other option but to
accept privatisation certificates in lieu of their savings and sell
them on an unofficial market for a fraction of their nominal value.
The scheme, it was said, had allowed some notorious tycoons and war
profiteers with ties with the Government to obtain valuable assets
for hardly anything.
- The
association from the Federation of Bosnia and Herzegovina added that
abuses also continued under the current legislation, but failed to
substantiate this contention.
(d) The Court's assessment
- Before
embarking upon these issues, it should be underlined that the present
case has a long history. The applicant lodged his complaints on
2 July 2002, before Bosnia and Herzegovina had even ratified
Protocol No. 1, and repeatedly reaffirmed them thereafter.
Although the contested situation has evolved, the Court will limit
its analysis to the current legislation. The Court further wishes to
underline that it considers it irrelevant that the applicant's
complaints were lodged before the ratification of Protocol No. 1,
because of the continuing nature of the impugned situation and the
fact that the initial complaints have been reaffirmed on numerous
occasions after ratification (see Čeh v. Serbia, no.
9906/04, §§ 36-39, 1 July 2008).
- Turning
to the general principles set out above, there is no doubt that the
first two were respected in the present case (see, by analogy,
Trajkovski, cited above). The Court will therefore proceed to
examine the core question, namely whether the contested measures
struck a “fair balance” between the relevant interests in
the light of Article 1 of Protocol No. 1.
- To begin with, it is a well-known fact that the global
economic crisis of the 1970s hit the SFRY particularly hard. The SFRY
turned to international capital markets and soon became one of the
most indebted countries in the world. When the international
community backed away from the loose lending practices of the 1970s,
the SFRY resorted to foreign-currency savings of its citizens to pay
foreign debts and finance imports. The Parliamentary Assembly of the
Council of Europe has established that, as a result, a major part of
the original deposits ceased to exist before the dissolution of the
SFRY (see its Resolution 1410 (2004) adopted on 23 November 2004
– reproduced in Kovačić and Others, cited
above, § 188 – as well as the explanatory memorandum by Mr
Erik Jurgens). While it is true that “old”
foreign-currency claims as such survived the dissolution of the SFRY
and that Bosnia and Herzegovina assumed full liability for such
claims in locally based banks, the fact that the original deposits
had been spent, in all probability, by the former regime explains why
Bosnia and Herzegovina has not been able to allow the uncontrolled
withdrawal of these deposits.
- The applicant maintained that he was entitled under
the current legislation to no more than BAM 1,000 in cash until 27
March 2015. The Court observes, however, that the applicant is
entitled to receive his entire “old” foreign-currency
savings by 27 March 2015 in eight instalments and has already thus
received BAM 5,237.44. Given the catastrophic effects of the 1992-95
war and the ongoing reforms of the State's political, legal and
economic structure, the Court accepts that this solution remained
within the respondent State's margin of appreciation.
- The applicant also expressed concerns that he would
not be able to sell government bonds for anything near their nominal
value. While understandable in view of past abuses (see paragraphs 19
and 47 above), such concerns are unsubstantiated. Unlike
privatisation certificates under the former legislation, government
bonds under the current legislation may be traded on the Stock
Exchange, which, together with the interest on the bonds (at an
annual rate of 2.5%) and the relatively short amortisation period,
should ensure a significantly higher price. Indeed, such bonds are at
present sold in the Republika Srpska for around 90% of their nominal
value. There is no reason why such bonds should be traded for
anything less in the Brčko District or, once issued, in the
Federation of Bosnia and Herzegovina. Anyhow, the applicant is not
required to sell government bonds in order to obtain his “old”
foreign-currency savings. He could instead opt for cash payments in
eight instalments. As opposed to privatisation certificates under the
former legislation, government bonds under the current legislation
are not designed to replace cash payments. On the contrary, their
function is to make early cash payments possible for those who are
unable or unwilling to wait until the end of the amortisation period
(27 March 2015 in the applicant's case).
- As regards the interest rate for the period from 1
January 1992 until 15 April 2006, which the applicant and the third
parties considered to be too low, the Government submitted that it
corresponded to the average interest rate applicable to overnight
foreign-currency deposits. However, according to an official report
submitted by the Government, at the request of the Court, in another
case (Kudić v. Bosnia and Herzegovina, no. 28971/05,
9 December 2008), the relevant interest rate appears to be much
higher – 2.33% on average (4.06% in 1992, 2.82% in 1993, 2.43%
in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998,
2.78% in 1999, 2.4% in 2000, 2.2% in 2001, 1.64% in 2002, 1.22% in
2003, 0.9% in 2004, 0.82% in 2005).
The
Court has also taken note of the fact that the neighbouring
countries, in which similar repayment schemes were set up, agreed to
pay considerably higher interest rates: 5% in Croatia and 2% in
Montenegro and Serbia.
Nevertheless,
given the respondent State's wide margin of appreciation (see
paragraph 42 above) and, in particular, the need to reconstruct the
national economy following a devastating war, the Court does not
consider this factor sufficient in itself to render the current
legislation contrary to Article 1 of Protocol No. 1. It agrees
in this regard with the Constitutional Court of Bosnia and
Herzegovina (see paragraph 28 above).
- Whereas the Court finds the current legislation as
such compatible with Article 1 of Protocol No. 1, it agrees with the
applicant that its state of implementation is unsatisfactory. While
in the Republika Srpska no delays were alleged, the same is not true
for the Federation of Bosnia and Herzegovina and the Brčko
District. In the Brčko District, government bonds, although due
on 31 March 2008, were issued only on 30 June 2009. In the Federation
of Bosnia and Herzegovina, it appears that bonds, likewise due on 31
March 2008, have not yet been issued. As a result, the applicant is
still unable to sell them on the Stock Exchange and thus obtain early
cash payments (see paragraph 53 above). Moreover, the instalments due
under the current legislation on 27 September 2008 were paid almost
three months later (on 24 December 2008) in the Brčko District
and almost eight months later (on 14 May 2009) in the Federation of
Bosnia and Herzegovina. Similarly, the instalment due on 27 March
2009 was paid almost three months later (on 11 June 2009) in the
Brčko District and has not yet been paid in the Federation of
Bosnia and Herzegovina.
- The
Court is aware that “old” foreign-currency savings,
inherited from the SFRY, constitute a considerable burden on all
successor States. Nonetheless, having undertaken to repay “old”
foreign-currency savings in locally based banks and having set up a
repayment scheme in this regard, the respondent State must stand by
its promises. The rule of law underlying the Convention and the
principle of lawfulness in Article 1 of Protocol No. 1 require
the Contracting Parties to respect and apply, in a foreseeable and
consistent manner, the laws they have enacted (see Broniowski,
cited above, § 184).
- In view of the deficient implementation of the
domestic legislation on “old” foreign-currency savings,
the Court concludes that the applicant may still claim to be a victim
for the purposes of Article 34 of the Convention. Accordingly, the
Government's preliminary objection is dismissed. For the same reason,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention in the present case.
II. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Article 46
of the Convention reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties' submissions
- The
Government, as opposed to the applicant, objected to the application
of the pilot-judgment procedure in the present case and repeated that
the contested legislation complied with the conditions laid down by
Article 1 of Protocol No. 1.
B. The Court's assessment
1. General principles
- The
Court reiterates that Article 46 of the Convention, as interpreted in
the light of Article 1, imposes on the respondent State a legal
obligation to implement, under the supervision of the Committee of
Ministers, appropriate general and/or individual measures to secure
the right of the applicant which the Court found to be violated. Such
measures must also be taken in respect of other persons in the
applicant's position, notably by solving the problems that have led
to the Court's findings (see Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII;
Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §
120, ECHR 2002-VI; Lukenda v. Slovenia, no. 23032/02,
§ 94, ECHR 2005 X; and S. and Marper v. the United
Kingdom [GC], nos. 30562/04 and 30566/04, § 134, ECHR
2008-...). This obligation has been consistently emphasised by the
Committee of Ministers in the supervision of the execution of the
Court's judgments (see, for example, ResDH(97)336, IntResDH(99)434,
IntResDH(2001)65 and ResDH(2006)1).
- In
order to facilitate effective implementation of its judgments along
these lines, the Court may adopt a pilot-judgment
procedure allowing it to clearly identify in a judgment the existence
of structural problems underlying the violations and to indicate
specific measures or actions to be taken by the respondent state to
remedy them (see Broniowski, cited above, §§
189-94, and Hutten-Czapska
v. Poland [GC], no. 35014/97, §§
231-39, ECHR 2006-VIII). This adjudicative approach is, however,
pursued with due respect for the Convention institutions' respective
functions: it falls to the Committee of Ministers to evaluate the
implementation of individual and general measures under Article 46 §
2 of the Convention (see, by analogy, Broniowski v.
Poland (friendly settlement) [GC], no. 31443/96, § 42,
ECHR 2005 IX, and Hutten-Czapska v. Poland (friendly
settlement) [GC], no. 35014/97, § 42, ECHR 2008-...).
62. Another important aim of the
pilot-judgment procedure is to induce the respondent State to resolve
large numbers of individual cases arising from the same structural
problem at domestic level, thus implementing the principle of
subsidiarity which underpins the Convention system. Indeed, the
Court's task as defined by Article 19, that is, to “ensure the
observance of the engagements undertaken by the High Contracting
Parties in the Convention and the Protocols thereto”, is not
necessarily best achieved by repeating the same findings in large
series of cases (see, by analogy, E.G. v. Poland
(dec.), no. 50425/99, § 27, ECHR 2008-...).
The object of the pilot-judgment procedure is to facilitate the
speediest and most effective resolution of a dysfunction affecting
the protection of the Convention rights in question in the national
legal order (see Wolkenberg and Others v. Poland
(dec.), no. 50003/99, § 34, ECHR 2007 XIV).
While the respondent State's action should primarily aim at the
resolution of such a dysfunction and at the introduction, where
appropriate, of effective domestic remedies in respect of the
violations in question, it may also include ad
hoc solutions such as friendly
settlements with the applicants or unilateral remedial offers in line
with the Convention requirements. The Court may decide to adjourn the
examination of all similar cases, thus giving the respondent State an
opportunity to settle them in such various ways (see, by
analogy, Broniowski, cited above, § 198, and
Xenides-Arestis v. Turkey, no. 46347/99, § 50,
22 December 2005). If, however, the
respondent State fails to adopt such measures following a pilot
judgment and continues to violate the Convention, the Court will have
no choice but to resume the examination of all similar applications
pending before it and to take them to judgment so as to ensure
effective observance of Convention (see, by
analogy, E.G. v. Poland,
cited above, § 28).
2. Application of the principles to the present case
- The
violation which the Court has found in the present case affects many
people. According to the International Monetary Fund, more than a
quarter of the population of Bosnia and Herzegovina had “old”
foreign-currency savings (see Bosnia and Herzegovina: Selected
Economic Issues, IMF Country Report No. 04/54, March 2004, p.
26). Moreover, there are already more than 1,350 similar
applications, submitted on behalf of more than 13,500 applicants,
pending before the Court. This represents a serious threat to the
future effectiveness of the Convention machinery. The Court therefore
considers it appropriate to apply the
pilot-judgment procedure in the present case, notwithstanding the
Government's objection in this regard.
- Although it is in principle not for the Court to
determine what remedial measures may be appropriate to satisfy the
respondent State's obligations under Article 46 of the Convention, in
view of the systemic situation which it has identified, the Court
would observe that general measures at national level are undoubtedly
called for in execution of the present judgment. Notably, the Court
considers that government bonds must be issued and any outstanding
instalments must be paid in the Federation of Bosnia and Herzegovina
within six months from the date on which the present judgment becomes
final. Within the same time-limit, the Federation of Bosnia and
Herzegovina must also undertake, as the Republika Srpska and the
Brčko District did (see paragraph 31 above), to pay default
interest at the statutory rate in the event of late payment of any
forthcoming instalment. As regards the past delays, the Court does
not find it necessary, at present, to order that adequate redress be
awarded to all persons affected. If, however, the respondent State
fails to adopt the general measures indicated above and continues to
violate the Convention, the Court may reconsider
the issue of redress in an appropriate future case.
- Turning to the many similar applications pending
before the Court:
(i) The Court decides to adjourn adversarial proceedings
for six months from the date on which the present judgment becomes
final in any cases pertaining to “old” foreign-currency
savings in the Federation of Bosnia and Herzegovina and the
Brčko District in which the applicants have obtained
verification certificates (see, by analogy, Burdov v. Russia (no.
2), no. 33509/04, § 146, 15 January 2009). This decision is
without prejudice to the Court's power at any moment to declare
inadmissible any such case or to strike it out of its list in
accordance with the Convention.
(ii) The Court may declare inadmissible in accordance with
the Convention any cases pertaining to “old”
foreign-currency savings in which the applicants have not obtained
verification certificates, because it has found a violation of
Article 1 of Protocol No. 1 only with respect to delays in the
implementation of the current legislation (see paragraph 55 above)
and those who have not obtained a verification certificate cannot be
considered to be affected by those delays (see paragraph 29 above).
That being said, the respondent State must ensure that the relevant
deadlines are extended for at least six months from the date on which
the present judgment becomes final to enable everyone to obtain a
verification certificate.
(iii) Lastly, the Court may declare inadmissible any cases
pertaining to “old” foreign-currency savings in the
Republika Srpska, even if the applicants have obtained verification
certificates, because no delays in the implementation of the current
legislation occurred in that Entity.
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
- Under
the head of pecuniary damage, the applicant repeated his complaints
concerning the content of the current legislation: he requested
immediate payment of the total amount of his “old”
foreign-currency savings and a higher interest rate. The Government
disagreed. The Court observes that it has rejected these complaints
(see paragraphs 51-54 above). It therefore also dismisses the
applicant's claim for pecuniary damage.
- The
applicant further claimed BAM 20,000 in respect of non-pecuniary
damage. The Government maintained that the claim was unjustified. The
Court, however, considers it clear that the applicant sustained some
non-pecuniary loss arising from the breach of the Convention found in
this case. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards the applicant
EUR 5,000 under this head plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant has already received under the Court's legal-aid scheme EUR
850 for the written part of the proceedings, EUR 1,350 plus
travelling costs in connection with appearance at the hearing and
EUR 300 for translation costs. On 20 March 2009 he sought
reimbursement of additional translation costs in the amount of EUR
729. The Government described this claim as belated.
- While
it is true that the applicant should have submitted his claim by 1
February 2009 (as requested in a letter of 15 December 2008 from the
Court) or, at the latest, at the hearing on 10 March 2009, the Court
considers that the applicant's additional translation costs should be
met in full.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that the applicant may still claim to be a
victim for the purposes of Article 34 of the Convention and dismisses
the Government's preliminary objection;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds that the above violation represents a
systemic problem;
- Holds that the respondent State must ensure,
within six months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention:
(a) that
government bonds are issued in the Federation of Bosnia and
Herzegovina;
(b) that
any outstanding instalments are paid in the Federation of Bosnia and
Herzegovina;
(c) that
the Federation of Bosnia and Herzegovina undertakes to pay default
interest at the statutory rate in the event of late payment of any
forthcoming instalment;
- Decides to adjourn, for six months from the date
on which the present judgment becomes final, the proceedings in all
cases concerning “old” foreign-currency savings in
the Federation of Bosnia and Herzegovina and the Brčko
District in which the applicants have obtained verification
certificates, without prejudice to the Court's power at any moment to
declare inadmissible any such case or to strike it out of its list in
accordance with the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage and EUR 729 (seven
hundred and twenty nine euros) in respect of costs and expenses, 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Mijović is annexed to this judgment.
N.B.
F.A.
CONCURRING OPINION OF JUDGE MIJOVIĆ
Although
I have voted with the majority in the Chamber on all the operative
provisions of the judgment, my reasoning with respect to a violation
of Article 1 of Protocol No. 1 to the Convention differs to a certain
extent from the views expressed in the judgment.
According
to the present judgment, Article 1 of Protocol No. 1 has been
violated because of the deficient implementation of the domestic
legislation on “old” foreign-currency savings, whilst in
my personal opinion, a violation should be based on the solutions and
measures contained in the legislation in question. The Chamber found
that the current legislation as such was compatible with Article 1 of
Protocol No. 1 but that it was its state of implementation that was
unsatisfactory (namely, because government bonds in the Federation of
Bosnia and Herzegovina had not yet been issued and certain
instalments had not yet been paid).
It
is my view, however, that the current legislation - perhaps it is
better to say the contested measures - does not in itself strike a
“fair balance” between the demands of the general
interest of the community and the requirement of the protection of
the individual's rights.
The
problem of “old” foreign-currency savings has a very long
history and, as pointed out in the judgment, dates back to the 1980s.
It survived the dissolution of the SFRY, and Bosnia and Herzegovina
assumed full liability for this sort of claim. Preliminary data show
that the associated public debt exceeds 1 billion euros. Given the
overall circumstances, and above all the need to reconstruct the
national economy, it is reasonable to accept that the owners of
so-called “frozen” bank accounts cannot be paid their
money without a carefully designed repayment scheme. That is a part
of the judgment's reasoning I do support.
Where
I disagree with the Chamber, however, is with regard to the
legislative provision concerning the reduction of the interest rate
to 0.5% for the period from 1 January 1992 to 15 April 2006, a
measure that I consider neither justified nor proportional. In
accordance with an official report submitted by the Government (see
the judgment, paragraph 54) it is obvious that the relevant interest
rate appears to be much higher - 2.33% on average). Compared to the
interest rate in the neighbouring countries,
which have more or less experienced similarly catastrophic effects of
the armed conflict and the ongoing reforms and have set up similar
“old” foreign-currency savings repayment schemes, this
interest rate of 0.5% is the lowest. The Chamber was of the opinion
that this issue fell “within the State's margin of
appreciation”, whilst in my opinion this interest rate
provision would be more than sufficient in itself to render the
current legislation contrary to Article 1 of Protocol No. 1.
On the other hand, if the Chamber had opted for this line of
reasoning, either the State or the Entities and the Brčko
District would have had to pass new legislation which might
subsequently have proven more time-consuming, economically
challenging and questionable, and very discouraging for almost one
quarter of the Bosnia and Herzegovina population - people who are not
merely tired of waiting but are already at an advanced age and in
despair. That is why I decided to vote with the majority.
