Ratko RIBIC v Serbia - 16735/02 [2010] ECHR 2185 (14 December 2010)

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The European Court of Human Rights (Second Section), sitting on 14 December 2010 as a Committee composed of:

András Sajó, President,
Dragoljub Popović,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Registrar,

Having regard to the observations submitted by the Serbian Government and the observations in reply submitted by the applicant,

The applicant, Mr Ratko Ribić, is a Serbian national who was born in 1945 and lives in Bečej. He was represented before the Court by Mr D. Grujičić, a lawyer practising in Sremska Mitrovica. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1992 and 1993 the applicant deposited a significant amount of foreign currency for a fixed period of time with the Dafiment Bank, one of a number of privately-owned “pyramid scheme” banks which existed at the time in Serbia and were well-known for offering extremely high monthly interest rates.

After the expiration of the applicant’s fixed-period deposit contracts, the Dafiment Bank refused to release his funds or pay him the interest stipulated.

The applicant subsequently issued two separate sets of proceedings before the competent municipal courts.

On 3 September 1993 the Fourth Municipal Court in Belgrade ruled in his favour and ordered the Dafiment Bank to pay him 20,046.63 Swiss Francs (“CHF”) as well as legal costs. On 17 November 1993 this judgment was upheld by the District Court in Belgrade at second instance.

On 28 December 1993 the applicant filed a request for the enforcement of the above decision.

On 21 January 1994 the Fourth Municipal Court in Belgrade issued an enforcement order to this effect.

According to the Government, on 29 March 1995 the applicant appeared before the Fourth Municipal Court, declaring that he would like to withdraw his request for enforcement. The declaration, allegedly signed by the applicant, was noted on the enforcement order.

The applicant contested this fact. He claimed that he had never withdrawn the enforcement request.

On 1 September 1995 the Fourth Municipal Court in Belgrade accepted the remainder of the applicant’s claim and ordered the respondent bank to pay the applicant the interest due in respect of his deposit. On 18 February 1999 this judgment was also upheld on appeal by the District Court.

In separate proceedings, on 25 October 1994, the Second Municipal Court in Belgrade ordered the Dafiment Bank to pay the applicant 8,496.33 CHF together with the interest due and the legal costs. On 22 February 1995 this judgment was upheld by the District Court at second instance.

The applicant submitted that he had received the copy of the later judgment on 11 May 1998, while the respondent Government maintained that the judgment had been served on the applicant’s lawyer on 21 March 1995.

The applicant did not initiate enforcement proceedings in the respect of the judgment of 25 October 1994.

Following the financial collapse of the pyramid scheme banks in Serbia, as well as the prior insolvency of a number of other banks, in a series of Acts adopted in the 1990s, 2001 and 2002, the respondent State accepted to convert the foreign currency deposits in these banks into a “public debt” and then went on to set out the time-frame and the amount to be paid back to their former clients. The said laws also provided that all enforcement proceedings, aimed at the collection of the foreign currency covered by the acts were to be discontinued. As far as the Dafiment Bank was concerned, the State undertook to release the deposits in question by 2016, according to a schedule and in certain fixed amounts annually. The accrued interest and any payments received by the savers prior to the institution of the liquidation proceedings were to be deducted from the deposits in question.

1. Act on the Settlement of Obligations Arising from the Citizens’ Foreign Currency Savings (Zakon o izmirenju obaveza po osnovu devizne štednje građana; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 59/98, 44/99 and 53/01)

Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with the “authorised banks” before 18 March 1995 were to become public debts.

Under Article 10 the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.

Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.”

2. Act on the Settlement of the Public Debt of the Federal Republic of Yugoslavia Arising from the Citizens’ Foreign Currency Savings (Zakon o regulisanju javnog duga Savezne Republike Jugoslavije po osnovu devizne štednje građana; published in OG FRY no. 36/02)

This Act repeals the Act described above. It modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually.

Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.”

This Act has also been in force since 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers’ above-described status.

3. Act on the Settlement of the Public Debt of the Federal Republic of Yugoslavia in Respect of the Citizens’ Foreign Currency Fixed Deposit Contracts with the Dafiment Bank AD, Belgrade, undergoing liquidation, as well as their Foreign Currency Deposits with the Private Enterprise Bank AD, Podgorica (Zakon o regulisanju javnog duga Savezne Republike Jugoslavije po ugovorima o deviznim depozitima građana oročenim kod Dafiment banke AD, Beograd, u likvidaciji i po deviznim sredstvima građana poloZenim kod Banke privatne privrede Crne Gore AD, Podgorica; published in the OG FRY no. 36/02)

Article 1 states that all foreign currency savings deposited with the Dafiment Bank, among other “authorised banks”, were initially recognised as part of the public debt by the Act described at section B.1. above.

Under Articles 2 and 4, which provide more details in relation to the foreign currency savings deposited with the Dafiment Bank in particular, the State undertook to release the deposits by 2016, according to a schedule and in certain fixed amounts annually. The accrued interest and any payments received by the savers prior to the institution of the liquidation proceedings were to be deducted from the deposits in question.

Pursuant to Article 12, the bank’s clients may make use of their deposits converted into Government bonds in order to pay taxes or indeed, under Articles 11 and 13, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, for the payment of medical treatment, medication and funeral costs.

In accordance with Articles 9 and 10, the bank’s clients can sell the said bonds on the stock exchange or to other banks and individuals. Such trading is exempt from all taxation.

This Act has been in force since 4 July 2002. It was subsequently amended once, but these amendments did not change the savers’ status.

On 7 October 2003 and 3 June 2004, the Fourth Municipal Court in Belgrade rejected a plaintiff’s motions for the formal institution of a judicial enforcement procedure with respect to a final judgment, ordering the Dafiment Bank to release his foreign currency deposits (Posl. br. I-XVI-1148/03).

In so doing, it held that, based on the above-cited legislation converting these deposits into a public debt and as of the moment of its entry into force, no judicial enforcement proceedings could be issued in respect of judgments adopted against the Dafiment Bank and, indeed, that any such pending proceedings must be discontinued.

On 8 December 2004 the Fourth Municipal Court rejected the plaintiff’s objection and upheld its prior ruling of 3 June 2004 (Posl. br. IPV (I) 819/04, I-XVI-1148/2004).

A. Alleged violation in respect of the non-enforcement of the three foreign currency related judgments in the applicant’s favour

The applicant complained about the non-enforcement of the three final civil court judgments and the ensuing “breach of his property rights”. The applicant did not rely on a specific Article of the Convention or the Protocols in this respect.

The Court considers that these complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

The respondent Government submitted that the applicant’s complaints were incompatible ratione temporis since the relevant foreign currency legislation of 1998 and 2002 had been adopted before the Serbian ratification of the Convention and Protocol No. 1 thereto. The Government also maintained that the applicant had not exhausted all effective domestic remedies as required by Article 35 § 1 of the Convention. In particular, he had failed to initiate the enforcement proceedings in respect of the judgment rendered on 25 October 1994; furthermore, he had requested the discontinuation of the enforcement proceedings initiated in respect of the judgment rendered on 3 September 1993.

Alternatively, the Government contended that the complaints were manifestly ill-founded, recalling the Trajkovski decision (see Trajkovski v. “the former Yugoslav Republic of Macedonia” (dec.), no. 53320/99, ECHR 2002 IV).

The applicant disagreed with the Government’s admissibility objections and reaffirmed his complaints.

In view of its conclusion below, the Court considers that it is not necessary to examine the issues of its temporal competence or exhaustion of domestic remedies by the applicant.

The Court has already considered practically identical circumstances in Molnar Gabor v. Serbia (no. 22762/05, §§ 43-51, 8 December 2009) in respect of a “non-pyramid scheme” bank. It found, inter alia, that the applicant in that case clearly had no enforceable legal title which would have allowed him to seek judicial execution of the foreign-currency award rendered in his favour. In particular, the provision of the Acts (described above) barred the enforcement of the applicant’s judgment as of 12 December 1998 and extinguished the impact of the final judgment in question well before the respondent State’s ratification of the Convention and Protocol No. 1 on 3 March 2004.

Turning to the present case, the Court notes that all three judgments in question became final by 18 February 1999. However, as of 12 December 1998, more than five years prior to the ratification, the State had only accepted to reimburse gradually the deposits which are the subjects of the said judgments and the applicant had no right under domestic law to request their formal judicial enforcement (see Article 22 of the Act described at B.1. above, which entered into force on 12 December 1998, Article 36 of the Act described at B.2. above, which repealed the former Act and has been in force since 4 July 2002, as well as the relevant domestic case law referred to at B.4. above). This being so, the Court considers that its conclusions in Molnar Gabor (cited above) are, mutatis mutandis, equally applicable in the present case.

It follows that the applicant’s complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

The applicant further complained about the violation of his “right to life”, asserting that due to the said “non-enforcement” he did not have enough money on which to live or means to pay for the medical treatment and medication which he needed.

The Convention does not guarantee socio-economic rights as such. In any event, the Court observes that the applicant had not substantiated his complaint. In particular, he had failed to show that his life has been put at risk or that his living conditions have attained a minimum level of severity to amount to a treatment contrary to Articles 2 and/or 3 of the Convention (see, mutatis mutandis, Pančenko v. Latvia (dec.), no. 40772/98, 28 October 1999). Therefore, even assuming that it is not incompatible ratione materiae, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

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