In the case of Ćosić and Others v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
The case originated in seven applications
(nos. 31864/06, 16570/07, 17780/10, 17824/10, 31717/10, 47332/10 and 17291/11)
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 23 citizens of Bosnia and Herzegovina,
Mr Blagoja Ćosić, Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević,
Mr Slavoljub Đorđević, Mr Goran Paripović, Ms Gordana
Paripović, Ms Anđa Paripović, Ms Mara Paripović, Mr Zoran
Paripović, Ms Jela Voćkić, Mr Ilija Voćkić, Ms
Stevanija Simić, Mr Dušan Simić, Ms Mirjana Simić, Ms Dragana
Simić, Ms Slađana Migerl, Ms Mara Lazić, Ms Branka
Lazić-Marković, Mr Milić Lazić, Ms Mara Đilas, Mr
Zoran Đilas and Mr Željko Đilas, (“the applicants”), between 19 July
2006 and 21 January 2011.
Ms Borka Vođević and Mr Slavoljub
Đorđević were represented by Mr Goran Marić, a lawyer
practising in Banja Luka. The Paripovićs, the Voćkićs, the
Simićs, Ms Slađana Migerl, the Lazićs and Ms Branka
Lazić-Marković were represented by Mr Đorđe Marić, a
lawyer practising in Banja Luka. The Đilas were represented by Ms Radmila
Plavšić and Mr Ranko Vulić, lawyers 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 (applications nos. 31864/06,
16570/07 and 47332/10) and on 4 July 2011 (applications nos. 17780/10,
17824/10, 31717/10 and 17291/11) 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 seven judgments
of different courts of first instance of 18 May 2000, 29 February
2000, 17 December 1999, 24 March 2000, 5 April 2001, 25 April 2000 and 14
November 2001, which became final on 15 June 2000, 13 October 2000, 16 July
2002, 26 July 2001, 25 May 2001, 13 July 2001 and 9 September 2004, 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 15,000 in respect of non-pecuniary damage
and BAM 1,776 in respect of pecuniary damage to the Ćosićs and
Ms Sanja Alaša;
(ii) BAM 16,000 in respect of non-pecuniary damage
and BAM 2,000 in respect of pecuniary damage to Ms Borka Vođević
and Mr Slavoljub Đorđević;
(iii) BAM 35,000 in respect of non-pecuniary
damage, BAM 2,000 in respect of pecuniary damage and BAM 1,860 in respect
of legal costs to the Paripovićs;
(iv) BAM 10,000 in respect of non-pecuniary damage,
BAM 1,500 in respect of pecuniary damage and BAM 403 in respect of legal costs
to the Voćkićs;
(v) BAM 25,000 in respect of non-pecuniary damage,
BAM 1,500 in respect of pecuniary damage and BAM 3,360 in respect of legal
costs to the Simićs and Ms Slađana Migerl;
(vi) BAM 14,000 in respect of non-pecuniary damage,
BAM 1,500 in respect of pecuniary damage and BAM 1,400 in respect of legal
costs to the Lazićs and Ms Branka Lazić-Marković; and
(vii) BAM 26,000 in respect of non-pecuniary
damage, BAM 2,000 in respect of pecuniary damage and BAM 2,009 in respect
of legal costs to the Đilas.
The Banja Luka Court of First Instance issued
writs of execution (rješenje o izvršenju) on 20 December 2001, 8
November 2000, 23 April 2003, 16 November 2001, 24 August 2001, 2 November 2001
and 21 December 2006, respectively.
The applicants complained of
non-enforcement to the Constitutional Court of Bosnia and
Herzegovina (“the Constitutional Court”). On 20 December 2005 the
Constitutional Court found a breach of Article 6 of the Convention and Article
1 of Protocol No. 1 in the cases of the Ćosić, Ms Sanja Alaša,
Ms Borka Vođević, Mr Slavoljub Đorđević, the
Paripovićs, the Voćkićs, the Simićs, Ms Slađana
Migerl, the Lazićs and Ms Branka Lazić-Marković. 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 Đilas due to
the change of circumstances following amendments to the Domestic Debt Act 2004.
After the extensive information campaign
explaining the available options for the settlement of the Republika Srpska’s
public debt (including its debt arising from domestic judgments), between 26
April 2007 and 13 May 2011 some of the applicants informed the authorities
that they agreed to be paid only the legal costs in cash and the principal debt
and default interest in bonds. Government bonds were then issued on the
following dates to the following applicants:
(i) on 15 December 2008 to Mr Blagoja
Ćosić (the application was lodged on19 July 2006); Mr Goran
Paripović, Ms Gordana Paripović, Ms Mara Paripović, Mr
Zoran Paripović (the application was lodged on 19 February 2010); Ms
Jela Voćkić (the application was lodged on 19 February 2010); Ms
Stevanija Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms
Slađana Migerl (the application was lodged on 8 March 2010); and Mr Milić
Lazić (the application was lodged on 13 February 2009);
(ii) on 15 June 2010 to Mr Slavoljub Đorđević (the application was lodged on
10 March 2007); and
(iii) on 9 June 2011 to Ms Mara Đilas (the application
was lodged on 21 January 2011).
. Mr Slavoljub Đorđević
and Ms Mara Đilas have already sold all of their bonds on the Stock
Exchange.
. Mr
Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms
Branka Lazić-Marković, Mr Zoran
Đilas and Mr Željko Đilas were not issued
government bonds.
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).
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: as regards those applicants who were issued government bonds, the
applicable provisions are those from the Domestic Debt Act 2004, which was in
force at the time the bonds were issued; and the other applicants did not
accept issuance of bonds in lieu of cash as means of enforcement,
therefore, the new Act is also irrelevant.
THE LAW
The applicants complained of the non-enforcement
of the judgments indicated in paragraph 6 above.
The case was examined by the Court under Article 6 of the Convention and
Article 1 of Protocol No. 1.
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
seven 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. As regards Ms Anđa Paripović and Mr Ilija
Voćkić
In their observations of 9 December 2010 the
Government informed the Court that Ms Anđa Paripović (application no.
17780/10) had died on 28 January 2001 and Mr Ilija Voćkić
(application no. 17824/10) had died in February 2007. The information was sent
to the applicants’ representative who did not dispute it. The Court notes that
the applicants’ deaths occurred before the applications in their names were
brought before it. The Court reiterates that a deceased person cannot lodge an
application, even through a representative
(see Kaya and Polat v. Turkey (dec.), nos. 2794/05 and 40345/05,
21 October 2008). In these circumstances, the Court concludes that the
applications nos. 17780/10 and 17824/10, in so far as they were brought on
behalf of Ms Anđa Paripović and Mr Ilija Voćkić, are incompatible
ratione personae with the provisions of the Convention and its Protocols
and must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. As regards Mr Dušan Simić and Ms Mara
Lazić
In their observations of 9 December 2010 and 12
December 2011, the Government informed the Court that Mr Dušan Simić (application
no. 3171/10) and Ms Mara Lazić (application no. 47332/10) had died on
unspecified dates. That information was sent to the applicants’ representative
on 16 February 2011 and 30 January 2012. He did not dispute that fact nor did
he provide exact date of deaths. Moreover, the Court did not receive any
statement from the applicants’ potential heirs or close family members
expressing the wish to
pursue their cases. In these circumstances, the Court concludes that it is no
longer justified to continue the examination of the applications nos. 3171/10
and 47332/10 in so far as they were brought by Mr Dušan Simić and Ms Mara
Lazić within the meaning of Article 37 § 1 (c) of the
Convention. Furthermore, the Court finds no reasons of a general nature, as
defined in Article 37 § 1 in fine,
which would require the examination of these complaints by virtue of that
Article (contrast Karner v. Austria, no. 40016/98, §§ 20-28, ECHR 2003-IX).
It therefore decides to strike the applications nos. 3171/10 and 47332/10 out
of its list of cases in so far as they were brought by Mr Dušan Simić and Ms
Mara Lazić (see Erol Direkçi and Ergül Direkçi v. Turkey (dec.), no. 47826/99, 31 March 2005).
3. As regards Ms Stevanija Simić, Ms Mirjana
Simić, Ms Dragana Simić, Ms Slađana Migerl; Ms Jela
Voćkić; and Mr Goran Paripović, Ms Gordana Paripović, Ms Mara Paripović and Mr Zoran Paripović
The Government argued that the present
applications were submitted outside of the six-month time-limit. Alternatively,
the Government submitted that, in view of the full enforcement of domestic
judgements in question, the applicants could no longer claim to be victims
within the meaning of Article 34 of the Convention.
The applicants disagreed.
The Court reiterates that the purpose of the
six-month rule is to promote security of the law and to ensure that cases
raising issues under the Convention are dealt with within a reasonable time.
Furthermore, it ought also to protect the authorities and other persons
concerned from being under any uncertainty for a prolonged period of time. The
rule also affords the prospective applicant time to consider whether to lodge
an application and, if so, to decide on the specific complaints and arguments
to be raised (see, for example, Worm
v. Austria, 29 August 1997, §§ 32-33, Reports
of Judgments and Decisions 1997-V). Where
the alleged violation constitutes a continuing situation against which no
domestic remedy is available, such as the non-enforcement of final and
enforceable domestic judgments in the present cases, the six-month period
starts to run from the end of the continuing situation (see Arežina v. Bosnia and Herzegovina (dec.), nos. 66816/09 et al., 3 July 2012).
Furthermore, in Runić
and Others (cited above, § 15, in which the applicants, like in the present
case, had accepted government bonds in lieu of cash as means of
enforcement) the Court held that domestic judgments ordering payment of war
damage had been fully enforced by the issuance of government’s bonds. Therefore,
having in mind the dates of introduction of applications nos. 17780/10, 17824/10
and 31717/10, and the dates of enforcement of domestic judgments in question
(as indicated above) it is clear that they have been submitted outside of the
six-month time-limit.
In the light of the foregoing, the Court considers that Ms
Stevanija Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms
Slađana Migerl (application no. 31717/10); Ms Jela Voćkić
(application no. 17824/10); and Mr Goran Paripović, Ms Gordana
Paripović, Ms Mara Paripović and Mr Zoran
Paripović (application no. 17780/10) have
failed to comply with the six-month rule. The applications nos.
17780/10, 17824/10 and 31717/10, in so far as they were submitted by these
applicants, must therefore be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
4. As regards Mr Blagoja Ćosić, Mr Slavoljub
Đorđević, Mr Milić Lazić and Ms Mara Đilas
The Government submitted that these applicants
could no longer claim to be victims within the meaning of Article 34 of the
Convention after the domestic judgments in question had been enforced partly in
cash (the legal costs) and partly in government bonds (the principal debt and
the associated default interest). The applicants disagreed.
The Court recalls that in its leading judgment
concerning this issue (Čolić and Others, cited above) it found
a breach of Article 6 and of Article 1 of Protocol No. 1 regardless of the
fact that those applicants had also been offered government bonds in lieu of
cash as a means of enforcement. The respondent State enforced the judgments
under consideration in that case in cash and undertook to so enforce a number
of other similar judgments (see Momić and Others v. Bosnia and
Herzegovina (dec.), no. 28730/06, 17 May 2011). However, it
should be emphasised that none of the applicants in those cases, unlike the
present applicants, had accepted government bonds. The present case must
therefore be distinguished from the Čolić and Others
jurisprudence. Given further that some of the present applicants have already sold
their bonds on the Stock Exchange (paragraph 10 above)
and that the legal costs awarded to them have already been paid in cash, the
Court considers the impugned domestic judgments to have been enforced.
That being said, 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 8 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 thus rejects the Government’s objection.
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.
5. As regards Mr Dado
Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka
Lazić-Marković, Mr Zoran Đilas and
Mr Željko Đilas
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
1. As regards Mr Blagoja Ćosić, Mr Slavoljub
Đorđević, Mr Milić Lazić and Ms Mara Đilas
The Court notes that the present case, in
respect of these applicants, is practically identical to Runić and
Others (cited above) in which the Court found a violation of Article 6 of
the Convention as well as a violation of Article 1 of Protocol No. 1 to the
Convention. Considering the length of the period
of non-enforcement of the judgments in issue (between more than six and
eight years after the date of ratification of the Convention by Bosnia and Herzegovina), and having examined all relevant
circumstances, the Court does not see any reason to depart from its previous case-law.
There has accordingly been a breach of Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention in respect of Mr
Blagoja Ćosić, Mr Slavoljub Đorđević, Mr Milić
Lazić and Ms Mara Đilas.
2. As regards Mr Dado
Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka
Lazić-Marković, Mr Zoran Đilas and
Mr Željko Đilas
The Court notes that the present case, in
respect of these applicants, is identical to Čolić and Others (cited
above), in which the Court found violation of Article 6 and Article 1 of
Protocol No. 1, due to the non-enforcement of final and enforceable domestic
judgments awarding war damages to the applicants.
The Court does not see any reason to depart from that jurisprudence.
Since the final judgments in favour of these applicants have not yet been
enforced and the situation has already lasted between ten and eight years
(since the ratification of the Convention by the respondent State), the Court
concludes, for the same reasons as 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, Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka
Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas 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 Ćosićs claimed 20,000 euros (EUR) in
respect of non-pecuniary damage and the Đilas claimed EUR 5,000 in respect
of non-pecuniary damage. The Government considered the amount 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), it awards EUR 1,500 per application to the Ćosićs
(application no. 31864/06) and the Đilas (application no. 17291/11), in respect
of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The Đilas 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 Đilas EUR 1,800 in total under this head, 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. Decides to strike the applications nos. 3171/10 and
47332/10 out of its list of cases in respect of Mr Dušan Simić and Ms Mara
Lazić;
3. Declares the applications nos. 17780/10, 17824/10 and
31717/10 inadmissible;
4. Declares the application no. 47332/10 in
respect of Ms Branka Lazić-Marković and Mr Milić Lazić, and
the other three applications admissible;
5. 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 Blagoja
Ćosić, Mr Slavoljub Đorđević, Mr Milić Lazić
and Ms Mara Đilas;
6. 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 Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka
Vođević, Ms Branka Lazić-Marković, Mr Zoran
Đilas and Mr Željko Đilas;
7. Holds
(a) that the respondent State
is to secure, within three months, enforcement of the domestic judgments
in respect of Mr Dado Ćosić, Ms Sanja
Alaša, Ms Borka Vođević, Ms
Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko
Đilas;
(b) 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 1,500 (one
thousand five hundred euros) per application to the Ćosićs and the
Đilas, plus any tax that may be chargeable, in respect of non-pecuniary
damage; and
(ii) EUR 1,800 (one thousand eight hundred euros),
plus any tax that may be chargeable, to the Đilas 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;
8. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi
Hirvelä
Deputy Registrar President
