FOURTH SECTION
CASE OF IGNJATIĆ
AND OTHERS
v. BOSNIA AND HERZEGOVINA
(Applications nos.
6179/08, 12453/10, 17809/10 and 17208/11)
JUDGMENT
STRASBOURG
15 January 2013
This judgment is final but it may be subject to editorial
revision.
In the case of Ignjatić 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 four applications
(nos. 6179/08, 12453/10, 17809/10 and 17208/11) 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 16
citizens of Bosnia and Herzegovina, Mr Nenad Ignjatić, Ms Marija
Ignjatić, Ms Biljana Ignjatić, Ms Ivana Ignjatić, Mr Duško
Škorić, Ms Đuja Škorić, Mr Dejan Škorić, Ms Danijela
Škorić, Mr Đuro Marić, Ms Gospana Marić, Ms Stana
Marić, Ms Olivera Marić, Mr Savo Ostojić, Ms Zora Ostojić,
Mr Bojan Ostojić and Ms Tanja Ostojić (“the applicants”), between 22
January 2008 27 January 2011.
The Ignjatićs and the Ostojićs were
represented by Ms Radmila Plavšić and Mr Ranko
Vulić, lawyers practising in Banja Luka. The Škorićs and the
Marićs were represented by Mr Đorđe Marić, a lawyer practising
in Banja Luka. The Government of Bosnia and Herzegovina (“the Government”) were
represented by their Agent, Ms M. Mijić.
This case is, like Čolić and Others
v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, and Runić and Others v. Bosnia and Herzegovina,
nos. 28735/06 et al., 15
November 2011, about the
non-enforcement of final and enforceable domestic judgments awarding war
damages to the applicants.
On 30 August 2010 (application no.
6179/08) and on 4 July 2011 (applications nos. 12453/10, 17809/10 and 17208/11)
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 live in Bosnia
and Herzegovina.
By four judgments of the Banja Luka
Court of First Instance of 22 July 1999, 29 January 2002 (application no.
12453/10), 29 January 2002 (application no. 17809/10) and 31 October 2002,
which became final on 5 January 2001, 12 January 2005, 22 November 2004
and 26 January 2005, respectively, the Republika Srpska (an Entity of Bosnia
and Herzegovina) was ordered to pay, within 15 days, the following amounts in
convertible marks (BAM) in respect of war damage
together with default interest at the statutory rate:
(i) BAM
26,000 in respect of non-pecuniary damage to the Ignjatićs;
(ii) BAM
42,000 in respect of non-pecuniary damage and BAM 1,998 in respect of
legal costs to the Škorićs;
(iii) BAM 47,000 in
respect of non-pecuniary damage to the Marićs;
(iv) BAM
29,000 in respect of non-pecuniary damage to the Ostojićs.
The Banja Luka Court of First Instance issued
writs of execution (rješenje o izvršenju) on 20 April 2001, 8 September
2003, 19 April 2005, 14 April 2005 and 5 April 2006, respectively.
The applicants complained of non-enforcement to
the Human Rights Chamber or to the Constitutional Court of Bosnia and Herzegovina.
On 8 March 2006 the Human Rights Commission (the legal successor of
the Human Rights Chamber) found a breach of Article 6 of the Convention and
Article 1 of Protocol No. 1 in the case of the Ignjatićs. On 20 December
2005 the Constitutional Court ruled likewise in the case of the Škorićs
and the Marićs. 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 15 April 2009 the Constitutional
Court dismissed the case of the Ostojićs due
to the change of circumstances following amendments to the Domestic Debt Act
2004.
. On 16 June 2010, 26 November 2009 and 14
October 2009, respectively, the Banja Luka Court of First Instance accepted the
debtor’s appeals in the cases of the Škorićs, the Marićs and the
Ostojićs and altered its previous writs of executions: it ordered that
only the legal costs were to be paid in cash, while the principal debt and
default interest were to be paid in government bonds.
It would appear that legal costs were paid to
the Škorićs and the Marićs.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice were
outlined in Čolić and Others (cited above, §§ 10-12) and Runić
and Others (cited above, § 11). It should be noted that on 8 June 2011 the Constitutional Court found a breach of Article 6 of the Convention in the case in which, like
in the cases of the Škorićs, the Marićs and the Ostojićs (see
paragraph 9), the court in the enforcement
proceedings ordered that the judgment debt was to be paid in government bonds.
The Constitutional Court ordered the Republika Srpska
to pay the judgment debt in cash without further delay (see decision
no. AP-2504/08).
On 13 January 2012 the Domestic Debt Act 2012
entered into force, thereby repealing the Domestic Debt Act 2004.
As regards the payment of war damage, it envisages the same solution as the old
Act, with the change in the maturity of government bonds which is now 13 years
instead of 14 years. The new Act is, however, irrelevant for the present
case since the applicants did not accept issuance of bonds in lieu of
cash as means of enforcement.
THE LAW
The applicants complained of the non-enforcement
of the final domestic judgments indicated in paragraph 6 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
four 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
The Court notes that the applications are not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention
and that they are not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
The Government submitted that in the case of the
Škorićs, the Marićs and the Ostojićs the competent domestic
court had ordered in the enforcement proceedings that the principal judgment debt
and default interest were to be paid in government bonds. The judgments in
question had not yet been enforced because those applicants had refused to
cooperate with the Ministry of Finance of the Republika
Srpska.
The applicants essentially maintained that they sought payment
of war damage in cash, as it was ordered by the final judgments in their
favour.
The present case is similar to Čolić
and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, in which the Court found violation of Article 6 and Article
1 of Protocol No. 1 to the Convention because of the non-enforcement of
domestic judgments ordering a payment of war damage. The applicants in the
present case, like those in Čolić and Others, did not accept
government bonds in lieu of cash as a means of enforcement. Furthemore,
as regards the Škorićs, the Marićs and the Ostojićs, the Court
notes that the Constitutional Court had found a breach of Article 6 in an
identical case, where the domestic court in the enforcement proceedings ordered
that the principal judgement debt and default interest were to be paid in
government bonds. The Court sees no reason to depart from that approach.
Since the final judgments under consideration in the present
case have not yet been fully enforced and the situation has already lasted between
ten and seven years (since the ratification of the Convention by the respondent
State), the Court concludes, for the same reasons set out in Čolić
and Others (cited above, § 15), that there has been a breach of Article 6
of the Convention and Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
In respect of pecuniary damage, the applicants
sought the payment of the outstanding judgment debt. The Court reiterates that
the most appropriate form of redress in non-enforcement cases is indeed to
ensure full enforcement of the domestic judgments in question (see Jeličić v. Bosnia
and Herzegovina, no. 41183/02, § 53, ECHR 2006-XII, and Pejaković
and Others v. Bosnia and Herzegovina, nos. 337/04 et al., § 31,
18 December 2007). This principle equally applies to the present case.
The Škorićs and the
Marićs claimed 1,000 euros (EUR), and the Ostojićs claimed EUR 5,000
in respect of non-pecuniary damage. The Ignjatićs did not claim
non-pecuniary damage. The Government considered the amounts claimed to be
excessive and unjustified. The Court considers that the applicants 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), the Court thus awards the applicants the
following amounts in respect of non-pecuniary damage, plus any tax that may be
chargeable: EUR 1,000 in total to the Škorićs, EUR
1,000 in total to the Marićs, and EUR 1,500 in total to the Ostojićs.
B. Costs and expenses
The Ostojićs
also claimed BAM 7,020 (approximately EUR 3,500) for the costs and expenses
incurred before the domestic courts and before the Court. The Government considered
the amount 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). The Court
notes that the applicants’ 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 the Ostojićs EUR 1,800 in total, plus any tax that may be
chargeable.
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;
4. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
5. Holds
(a) that the respondent State is to secure
enforcement of the domestic judgments under consideration in the present case
within three months, and, in addition, to pay, within the same period, the following
amounts, to be converted into convertible marks at the rate applicable at the
date of settlement:
(i) EUR 1,000 (one thousand euros) per application
to the Škorićs and the Marićs, plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) in
total to the Ostojićs, plus any tax that may
be chargeable, in respect of non-pecuniary damage; and
(iii) EUR 1,800 (one thousand eight hundred euros)
to the Ostojićs, plus any tax that may be
chargeable, in respect of costs and expenses.
(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;
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
