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You are here: BAILII >> Databases >> European Court of Human Rights >> MURTIC AND CERIMOVIC v. BOSNIA AND HERZEGOVINA - 6495/09 [2012] ECHR 1053 (19 June 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/1053.html Cite as: [2012] ECHR 1053 |
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FOURTH SECTION
CASE OF MURTIĆ AND ĆERIMOVIĆ
v. BOSNIA AND
HERZEGOVINA
(Application no. 6495/09)
JUDGMENT
STRASBOURG
19 June 2012
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 Murtić and Ćerimović v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Ljiljana Mijović, judges,
and
Lawrence Early, Section
Registrar,
Having deliberated in private on 29 May 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The reasons were set out in the decision, the relevant paragraphs of which read as follows:
“290. In summary, the Chamber has concluded that the applicants acquired protected “possessions” in their paid internal shares in Agrokomerc for which payment was made on the basis of: (a) permanent deposits; (b) allocation of parts of salaries, either on monthly basis during the period of 1991 to 1994, or on an annual basis for 1992; and (c) distribution of profits for 1992 in proportion to the amount of paid internal shares. The decision on the results of the renewed Revsar audit of 7 March 2001, which cancelled all internal shares in favour of state capital in Agrokomerc, deprived the applicants of these protected possessions. In addition, by exercising effective exclusive control over the management of Agrokomerc, the authorities of the Federation further interfered with the rights of the applicants to participate in the management and to share in the profits of Agrokomerc in relation to their paid internal shares. In these respects the Federation did not act “subject to the conditions provided by law”. Consequently, the Chamber concludes that the Federation has violated the rights of the applicants protected by Article 1 of Protocol No. 1 to the Convention.
...
298. The applicants are correct that they have had no real and effective means to participate in the establishment of the ownership structure of Agrokomerc, as that has been established through the performance of the audit, which was conducted exclusively by the auditor Revsar [...]. There have been no actual or effective proceedings in which the applicants have been invited to participate. Under the law, the only way for the applicants to participate in the establishment of the ownership structure of the company in which they are shareholders has been to challenge the appointment of the auditor and to challenge the results of the audit [...]. This has not proven effective in this case. Moreover, the Chamber considers that this type of process has not been adequate properly to allow the applicants to have access to courts for the determination of their civil rights, as guaranteed by Article 6 of the Convention”.
II. RELEVANT DOMESTIC LAW
“An official of the State, the Entities or the Brčko District who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina, the Human Rights Chamber or the European Court of Human Rights, or who prevents the enforcement of any such decision, or who frustrates the enforcement of any such decision in some other way, shall be punished by imprisonment for a term of between six months and five years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
Article 6, as far as relevant, reads as follows:
“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.”
A. Admissibility
B. Merits
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred) each, in respect of non-pecuniary damage, 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;
Done in English, and notified in writing on 19 June 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Kalaydjieva is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
I regret that I am unable to join the majority in the present case in their findings with regard to Article 6 and Article 1 of Protocol No.1 to the Convention.
I am not convinced that on 7 May 2009, when the Court communicated the complaints of Mr Murtic and Ms Cerimovic, the applicants could still be considered victims of the authorities’ failure to enforce the Human Rights Chamber’s decision of 2002, as alleged by them in their application of 6 October 2005 (see paragraphs 1 and 4 of the judgment).
In its decision the Human Rights Chamber found violations of their rights to “possessions” within the meaning of Article 1 of Protocol No. 1, and to access to a court under Article 6 for the purpose of determining the dispute concerning these “possessions”. The Chamber imposed interim measures and ordered the authorities to take steps to provide appropriate redress in respect of the violations found; this implied a complicated procedure of international audit in order to determine the value of the applicants’ shares in “Agrokomerc” and to enter their names in the register of shareholders. It is not contested that these steps were undertaken shortly after the decision and were completed by 29 October 2007, when the applicants’ rights as shareholders were registered with the national Securities Commission, nor that the applicants exercised their rights as shareholders effectively thereafter. On 15 January 2009, several months prior to communication of the applicants’ complaints by the Court, the Constitutional Court of Bosnia and Herzegovina – responsible for supervising execution of the decisions of the Human Rights Chamber (see paragraph 18) – confirmed that it had been fully implemented. In my understanding, this was sufficient to conclude that the matters concerning enforcement of the decision were resolved, at the latest, on 29 October 2007. The grounds on which the applicants contest the full implementation of the impugned decision were not specified (see paragraph 21).
In so far as the applicants complain of the delay accumulated in the enforcement process, I disagree with the somewhat automatic application of the principles reached by the Court in earlier cases against Bosnia and Herzegovina, listed in paragraph 29. In my opinion, it should not be overlooked that, in contrast to those cases, which concerned failure or delay in the payment of specific amounts, the present case involved far more complicated enforcement steps, such as an international audit for the purposes of determining the applicant’s shares in a company - a process which no doubt entails “somewhat complex financial and legal actions” in all legal systems. In the instant case this process also involved difficulties in connection with missing or destroyed documents, and absent or improperly kept records from the war period (see paragraph 29). In the absence of any specific inaction or delay in enforcement for which the authorities were responsible, these difficulties are serious enough to explain the impugned five-year delay in implementation of the decision of the Human Rights Chamber. This situation should be distinguished from that examined in the cases cited in paragraph 29, where non-enforcement resulted from legislative amendments adopted to avoid, modify or at least delay the enforcement of final decisions ordering the payment of specified amounts to the affected individuals. In my view these differences suffice to find no violation of the applicants’ rights under Article 6 and Article 1 of Protocol No. 1.
In so far as the applicants may be considered to complain that the enforcement of the decision of the Human Rights Chamber was not sufficient to redress the violations established by that body, such a complaint seems not to be pertinent to its enforcement, since the Human Rights Chamber’s 2002 decision failed to order any compensation for the non-pecuniary damage resulting from the violations of their rights to “possessions” and access to court. This issue should be distinguished from the question whether the applicants were entitled to any compensation for the subsequent delay in the enforcement of the impugned decision. It appears that in this regard the scope of the applicants’ case as registered before the Court differed from that under parallel examination by the Constitutional Court in supervising enforcement of the Human Rights Chamber’s decision. One can only regret that, having reached the Court in 2005, the applicants’ complaints under the Convention were communicated to the respondent Government only after the Constitutional Court’s decision of 2009, which was not called to rule on the reasonableness of the delay in implementation of the Human Rights Chamber’s decision as adopted in 2002, but only on its completeness.
In this regard the applicants fail to explain whether they sought at any time to obtain compensation for non-pecuniary damage arising from the allegedly unreasonable delay. This raises issues as to the admissibility of their complaints in respect of the existence of appropriate domestic remedies capable of affording redress for the alleged violation of their rights to enforcement of a final decision without unreasonable delay. I am not convinced that the authorities were given a chance to react to the complaints of delay and any ensuing potential necessity to redress it.
However, since in my opinion the circumstances of the present case disclose no violation in respect of either non-enforcement of a final decision as originally submitted, or unreasonable delay in such enforcement, as subsequently maintained by the applicants, no issue arises as to the appropriate redress for such violations. Thus, I agree with the majority’s conclusions under Article 13, albeit for different reasons.
11. In 1990 the Prime Minister of the former Socialist Federal Republic of Yugoslavia, Mr Ante Marković, proposed legislation under which socially owned companies could be privatised through the sale of internal shares, under favourable conditions, to employees, former employees and pensioners of the relevant company. The holders of internal shares were registered as shareholders with the competent court. However, at the time of registration most shareholders had not made any payments towards their shares. Rather, in most cases the company set up a system to allow shareholders to pay for their internal shares in instalments over a maximum period of ten years. For more details about this process, see the Human Rights Chamber decision of 8 March 2002 (CH/00/5134 et al, available at www.hrc.ba).
21. Uredba o izmjeni Uredbe o vršenju ovlaštenja i obaveza organa Federacije Bosne i Hercegovine u privrednim društvima po osnovu drZavnog kapitala, Official Gazette of the Federation of Bosnia and Herzegovina, no. 35/01.