FOURTH SECTION
CASE OF
MOMIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Applications nos.
1441/07, 32382/07, 8159/08, 37282/08 and 19511/10)
JUDGMENT
STRASBOURG
15 January 2013
This judgment is final but it may be subject to editorial
revision.
In the case of Momić and Others v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
George Nicolaou, President,
Zdravka Kalaydjieva,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in five applications
(nos. 1441/07, 32382/07, 8159/08, 37282/08 and 19511/10) 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 five
citizens of Bosnia and Herzegovina, Mr Milan Momić, Mr Živan
Anđić, Ms Ismihana Kalem, Mr Hašim
Delić and Mr Marinko Tomčić (“the applicants”), between 21
December 2006 and 24 March 2010.
Mr Milan Momić was represented by Mr S.
Marić, a lawyer practising in Banja Luka. Ms
Ismihana Kalem was represented by Mr G. Marić, a lawyer practising in Banja Luka. Mr Hašim Delić was represented
by Mr S. Bilić, a lawyer practising in Derventa. The Government of
Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
On 30 August 2010 (applications nos. 1441/07,
32382/07, 8159/08, and 37282/08) and on 4 July 2011 (application no. 19511/10) the
President of the Fourth Section decided to give notice of the applications to
the Government. It was also decided to rule on the admissibility and merits of
the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1949, 1951, 1961,
1933 and 1977, respectively and live in Bosnia and
Herzegovina.
By five judgments of different
courts of first instance of 25 April 2002, 23 September 2005, 7 October 2002, 8
September 2003 and 24 December 2002, which became final respectively on 9
March 2005, 23 September 2005, 12 July 2005, 6 April 2005 and 24 January
2006, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to
pay, within 15 days, the following amounts in convertible marks (BAM):
(i) BAM 26,994.86 in respect of capitalised annuity to Mr Milan
Momić;
(ii) BAM 87,479.19 in respect of
pecuniary damage for lost income to Mr Živan Anđić;
(iii) BAM 2,235 in respect of
pecuniary damage together with default interest at the statutory rate calculated
from the start of the proceedings until the final
payment and BAM 4,586 in respect of legal costs to Ms Ismihana Kalem;
(iv) BAM 7,525 in respect of
pecuniary damage together with default interest at the statutory rate calculated
from the start of the proceedings until the final payment
and BAM 1,400 in respect of legal costs to Mr Hašim
Delić; and
(v) BAM 11,500
in resepct of non-pecuniary damage together with default interest at the
statutory rate calculated from the start of the proceedings
until the final payment and BAM 1,425.90 in respect of legal costs to Mr Marinko
Tomčić.
The Banja Luka Court of First Instance issued
writs of execution (rješenje o izvršenju) on 4 July 2005, 12 December
2005, 17 October 2005, 3 October 2005 and 27 April 2006.
The applicants complained of
non-enforcement to the Constitutional Court of Bosnia and
Herzegovina (“the Constitutional Court”). On 12 April 2006, 14 March
2006, 9 May 2006 and 13 December 2007 the Constitutional Court found a breach
of Article 6 of the Convention and Article 1 of Protocol No. 1 to the
Convention in the cases of Mr Milan Momić, Mr Živan Anđić, Ms
Ismihana Kalem and Mr Hašim Delić. The
applicants did not claim compensation, but even if they had done so, their
claim would have most likely been refused (see, for example, the Constitutional
Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12
April 2006, § 195; AP 1211/06
of 13 December 2007, § 79; and AP 244/08 of 8
December 2010, § 37). On 24 June 2009 the Constitutional
Court dismissed the case of Mr Marinko Tomčić due to the change of circumstances following amendments to the
Domestic Debt Act 2004.
. On
22 December 2008 Mr MarinkoTomčić was issued government bonds in
lieu of cash in respect of the principal debt and associated default
interest accrued until 23 July 2004 in accordance with the relevant provisions
of the Domestic Debt Act 2004 (see “Relevant domestic law and practice” below).
On 22 December 2011 the final
judgment in respect of Mr Hašim Delić was fully
enforced in cash and in March 2012 the final judgments in favour of Mr Milan
Momić and Mr Živan Anđić were also fully enforced in cash.
The final judgment in favour of Ms Ismihana
Kalem remains unenforced to this day.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The judgments under consideration in the present
case fall under a special legal regime of the Republika
Srpska’s general obligations. Their enforcement was suspended since 29
December 2003 pursuant to the Temporary Postponement of Enforcement Act 2003
and Domestic Debt Act 2004 until 7 April 2009
(paragraph 13 below). In accordance with the Domestic Debt Act 2004 the general
obligations cover, inter alia, a debt arising from the final and
enforceable domestic judgments given in respect of civil actions against the Republika Srpska brought in
the period between 20 June 1996 and 31 December 2002, in the total amount of
BAM 25,000,000, excluding the final judgments concerning war damage and
old foreign-currency savings. Under an initial settlement plant envisaged by
that Act, the principal debt and associated default interest, accrued until 23
July 2004 when it entered into force, were to be paid in government bonds. They
were to be amortised in ten annual instalments and to earn interest at an
annual rate of 1.5%.
While the Constitutional Court initially
considered this solution to be incompatible with Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention (see decision AP 774/04 of
20 December 2005), it decided that the matter had been resolved following a
decision of the Constitutional Court of the Republika Srpska of 15 January 2009
which declared certain provisions of the Domestic Debt Act 2004
unconstitutional (see decision AP 37/08 of 24 June 2009).
On 7 April 2009 the Domestic Act
2004 was changed in that the Republika Srpskaʼs debt
arising from the final and enforceable judgments representing general
obligations would be paid in cash together with the associated default interest
accrued until the full enforcement.
In accordance with the current settlement plan,
the judgments will be enforced within five years starting in 2010, in order in
which they were received at the Ministry of Finance of the Republika Srpska and after the submission of the necessary
documents by the creditors. In respect of the creditors who were issued
government bonds, the difference in accrued default interest is to be
compensated. It is possible to conclude an agreement with the Ministry of
Finance and thus obtain a prior execution of the judgement if one accepts
payment in annual instalments or is willing to forfeit the amount due in
respect of default interest. It is also possible to obtain the enforcement by
concluding a contract about the settlement of mutual claims between the
Ministry of Finance and a creditor.
THE LAW
The applicants complained of the non-enforcement
of the final domestic judgments indicated in paragraph 5 above. They 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. JOINDER OF THE APPLICATIONS
Given their common factual and legal background, the Court decides that these
five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
A. Admissibility
1. The submissions of the parties
The Government maintained that the present
applications were inadmissible because the domestic judgments under
consideration have already been enforced or will be enforced shortly pursuant
to the relevant settlement scheme.
. The
applicants diagreed.
2. The Court’s assessment
(a) As regards Mr Milan Momić,
Mr Živan Anđić and Mr Hašim Delić
. The Court notes that the judgments in favour of Mr
Milan Momić, Mr Živan Anđić and Mr
Hašim Delić have recently been fully enforced (paragraph 9 above).
In view of that, it is necessary to examine
whether those applicants could still claim to be
victims within the meaning of Article 34 of the Convention. The Court has
always held that a decision or measure favourable to an applicant is not in
principle sufficient to deprive him of his victim status unless the national
authorities have acknowledged the alleged breach and afforded appropriate and
sufficient redress (see Scordino v. Italy
(no. 1) [GC], no. 36813/97, §§ 180 and 193, ECHR 2006-V).
One of the features of such redress is the amount awarded by the national
authorities (see Kudić v. Bosnia and Herzegovina, no. 28971/05, § 17,
9 December 2008). While it is true that the national authorities expressly
acknowledged the breach alleged in the present case, the applicants were not
able to obtain any compensation in respect of the delayed enforcement of the
judgments (paragraph 7 above). Therefore, they may still claim to be victims within
the meaning of Article 34 of the Convention in relation to the period during
which the judgments remained unenforced (see Dubenko v. Ukraine,
no. 74221/01, § 36, 11 January 2005).
The Court further notes that the applications
are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention nor inadmissible on any other grounds. It accordingly declares
them admissible.
(b) As regards Ms Ismihana
Kalem and Mr Marinko Tomčić
The Court notes that the judgments in favour of
these applicants have not yet been fully enforced. As these applications are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention
or inadmissible on any other grounds, they must be declared admissible.
B. Merits
1. As regards Mr Milan Momić,
Mr Živan Anđić and Mr Hašim Delić
The applicants essentially
maintained that the principle of the rule of law, which Bosnia and Herzegovina had
undertook to respect when it ratified the Convention, required that every
judgment be enforced without delay.
. The
Government argued that some delays in the enforcement of the domestic judgments
in question were necessary given the number of similar domestic judgments and
the size of the Republika Srpska’s public debt.
. The
general principles relating to the non-enforcement of domestic judgments were
set out in Jeličić v. Bosnia and
Herzegovina, no. 41183/02, §§ 38-39, ECHR 2006-XII.
Notably, the Court has held that it is not open to authorities to cite lack of
funds as an excuse for not honouring a judgment debt (see also R. Kačapor and Others v. Serbia, nos. 2269/06 et al., § 114, 15 January 2008).
. The
Court notes that the domestic judgments under consideration in the present case
remained unenforced between six and almost eight years. Such delays were in the
past considered to be excessive (Jeličić, cited above, § 40; Čolić
and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, § 15; and Runić and Others v. Bosnia and
Herzegovina, nos. 28735/06 et al., 15 November 2011, § 21). The
Court does not see any reason to depart from that jurisprudence.
. Accordingly, there has
been a breach of Article 6 of the Convention and of Article 1 of Protocol No. 1
to the Convention in respect of Mr Milan Momić,
Mr Živan Anđić and Mr Hašim Delić.
2. As regards Ms Ismihana Kalem
and Mr Marinko Tomčić
While the applicants invited the Court to apply
the Čolić and Others jurisprudence to their case, the
Government sought to distinguish the two cases. They maintained that the final
judgments in the present case did not fall into the category of war damage, but
instead represented general obligations of the Republika
Srpska which were paid in cash in accordance with the relevant settlement
plan. The Government further submitted that due to the size of the Republika Srpska’s public debt, postponement in the
enforcement was justified as otherwise macroeconomic stability and fiscal
sustainability would be jeopardised.
The Court notes that the present case is similar
- although not identical - to Čolić and Others (cited above).
The enforcement of the final judgments under consideration in the present
case was also suspended and a similar repayment scheme was envisaged by the Domestic
Debt Act 2004 for both categories of judgments: they were to be enforced
through the issuance of government bonds. It was only on 7 April 2009, following
a judgment of the Constitutional Court of the Republika
Srpska, that the Domestic Debt Act 2004 was amended in that the
enforcement of the judgments representing general obligations was allowed in
cash (paragraph 13 above). Nevertheless, the final and enforceable
judgments in favour of Ms Ismihana Kalem and Mr Marinko
Tomčić have not yet been fully enforced.
The Court therefore does not see any reason to depart from the Čolić
and Others jurisprudence. Since the final judgments under consideration in
the present case have not yet been fully enforced and the situation has already
lasted between six and almost eight years, there has been a breach of Article 6
of the Convention and Article 1 of Protocol No. 1 to the Convention in respect
of Ms Ismihana Kalem and Mr Marinko Tomčić.
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
Mr Milan Momić
claimed the payment of outstanding judgment debt in respect of pecuniary
damage and approximately 25,000 euros (EUR) in respect of non-pecuniary damage.
The Government considered the claims unsubstantiated. The
Court notes that in the meantime the final judgment in favour of this applicant
has been fully enforced. The Court, therefore, rejects the claim for pecuniary
damage. As regards non-pecuniary damage, the Court considers that the
applicant sustained some non-pecuniary loss arising from the breaches of the
Convention found in this case. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, and having regard to the amounts
awarded in Čolić and Others (cited above, § 21), it awards Mr
Milan Momić EUR 1,500
in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.
The other applicants did not claim any damage.
B. Costs and expenses
Mr Milan Momić
claimed BAM 5,076.10 (approximately EUR 2,595) for the costs and
expenses incurred before the domestic courts and before the Court. Mr Hašim Delić submitted his claim for costs and
expenses in the amount of EUR 1,079 outside the time-limit set by the Court.
The Court will, nonetheless, examine it as it would appear that the applicant’s
delay was due to a late delivery of the Court’s letter. The Government considered
the amounts claimed to be excessive. According to the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum (see, for example, Iatridis v. Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
As regards Mr Milan Momić,
the Court notes that the applicant’s representative submitted an initial
application and, at the request of the Court, written pleadings in one of the
official languages of Bosnia and Herzegovina. Having regard to the tariff fixed
by the local bar associations, which the Court considers reasonable in the
circumstances of this case, the applicant is entitled to approximately EUR
1,700. In addition, the Court awards the sum of EUR 100 for secretarial and
other expenses. The Court therefore awards Mr Milan Momić
EUR 1,800 in total under this head, plus any tax that may be chargeable.
As regards Mr Hašim Delić, the Court notes that the applicant’s representative
submitted an initial application and, at the request of the Court, written
pleadings in one of the official languages of Bosnia and Herzegovina.
Therefore, Mr Hašim Delić’s costs and expenses should be met in full.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 to the Convention due to
the delayed enforcement of final domestic judgments in respect of Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić;
4. Holds that there has been a violation of
Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention
due to the non-enforcement of final domestic judgments in respect of Ms Ismihana Kalem and Mr Marinko Tomčić;
5. Holds
(a) that the respondent State
is to secure, within three months, full enforcement of the domestic judgments
in respect of Ms Ismihana Kalem and Mr Marinko
Tomčić;
(b) that the respondent State is to pay, within
three months, the following amounts, to be converted into convertible marks at
the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros), plus
any tax that may be chargeable, to Mr Milan Momić in respect of non-pecuniary damage;
(ii) EUR 1,800 (one thousand eight hundred euros),
plus any tax that may be chargeable, to Mr Milan Momić in respect of costs and expenses; and
(iii) EUR 1,079 (one thousand seventy nine euros), plus
any tax that may be chargeable, to Mr Hašim Delić
in respect of costs and expenses.
(c) 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;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George
Nicolaou
Deputy Registrar President
