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FOURTH
SECTION
CASE OF KUDIĆ v. BOSNIA AND HERZEGOVINA
(Application
no. 28971/05)
JUDGMENT
STRASBOURG
9 December 2008
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 Kudić v.
Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28971/05) 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 two citizens of Bosnia and Herzegovina, Mr
Enver Kudić and Ms Mesuda Kudić (“the applicants”),
on 26 July 2005.
- The
applicants were represented by Mr M. Spaho, a lawyer practising in
Sarajevo. The Government of Bosnia and Herzegovina (“the
Government”) were represented by their Agent, Ms M. Mijić.
- On
29 May 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1928 and 1933 respectively and live in Bihać.
- Prior
to the dissolution of the former Socialist Federal Republic of
Yugoslavia (“the SFRY”) the applicants deposited foreign
currency in their bank accounts at the Privredna banka Sarajevo
Glavna filijala Bihać. In Bosnia and Herzegovina, as well as in
other successor States of the former SFRY, such savings are commonly
referred to as “old” foreign-currency savings (for the
relevant background information see Jeličić v. Bosnia
and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).
- Following
several unsuccessful attempts to withdraw their funds, the applicants
initiated court proceedings seeking the recovery of their entire
“old” foreign-currency savings and accrued interest.
- By a decision of the Bihać Municipal Court of 3
December 1993, the Privredna banka Sarajevo Glavna filijala Bihać
was ordered to pay the applicants 54,469.42 German marks (DEM),
19,257.25 Swiss francs, 81.12 French francs, 60,120.49 Austrian
shillings, 185.61 Canadian dollars, 231.86 US dollars, 163.39 Dutch
guilders and 22,217.60 Italian liras, default interest on the above
amounts at the rate applicable to overnight deposits from private
individuals from 1 January 1992 and legal costs in the amount of DEM
1,940. The judgment entered into force on 12 June 1994.
- On
9 April 1997 the Bihać Municipal Court issued a writ of
execution (rješenje o izvršenju). The execution
proceedings were effectively stayed between 12 January 1998 and 12
September 2001.
- Meanwhile,
on 28 November 1997, the judgment debt became a public debt pursuant
to the Settlement of Claims Against the Federation of Bosnia and
Herzegovina Act 1997.
- On
6 April 2005 the Human Rights Commission within the Constitutional
Court of Bosnia and Herzegovina (“the Human Rights Commission”)
found a violation of Article 6 of the Convention and of Article 1 of
Protocol No. 1 to the Convention arising from a failure to enforce
the judgment of 3 December 1993. It ordered the Federation of Bosnia
and Herzegovina to ensure full enforcement of the judgment in issue
within two months, to pay the equivalent of 255 euros in respect of
non-pecuniary damage within three months and to pay default interest
after the expiry of the above time-limits at the annual rate of 10%.
- On
28 October 2005 the applicants received the compensation awarded by
the Human Rights Commission.
- The
judgment of 3 December 1993 was fully enforced on 5 June 2007
(the applicants were paid the principal debt, default interest and
legal costs in the amounts specified in the judgment).
II. RELEVANT LAW AND PRACTICE
- For
relevant law and practice see the admissibility decision in Jeličić,
cited above; Suljagić v. Bosnia and Herzegovina (dec.),
no. 27912/02, 20 June 2006; the judgment in Jeličić
v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006 ...;
and Pejaković and Others v. Bosnia and Herzegovina, nos.
337/04, 36022/04 and 45219/04, 18 December 2007.
THE LAW
- The
applicants complained of the protracted non-enforcement of a final
and enforceable judgment in their favour. 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. ADMISSIBILITY
- The Government submitted that the applicants could no
longer claim to be victims within the meaning of Article 34 of the
Convention since the judgment in issue had been enforced and the
Human Rights Commission had acknowledged the alleged breach and
awarded compensation.
- The applicants disagreed that the compensation awarded
by the Human Rights Commission constituted appropriate and sufficient
redress.
- According to the Court's settled case-law, a decision
or measure favourable to the applicant is not in principle sufficient
to deprive him of his status as a “victim” unless the
national authorities have acknowledged the breach (at least in
substance) and afforded redress for it (see the admissibility
decision in Jeličić, cited above). It is further
recalled that redress afforded by the national authorities must be
appropriate and sufficient (see Višnjevac v. Bosnia
and Herzegovina (dec.), no. 2333/04, 24 October
2006).
As
the Court has already held in length-of-proceedings cases, one of the
characteristics of sufficient redress which may remove an applicant's
victim status relates to the amount awarded as a result of using the
domestic remedy (see Cocchiarella v. Italy [GC],
no. 64886/01, § 93, ECHR 2006-..., or Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 202, ECHR 2006 - ...).
Since enforcement proceedings are regarded as an integral part of the
“trial” for the purposes of Article 6 of the Convention
(see, as a recent authority, Wasserman v.
Russia (no. 2), no. 21071/05, § 51,
10 April 2008), the principles developed in the context of
length-of-proceedings cases are also applicable in the situation
where an applicant complains of the protracted non-enforcement of a
final and enforceable judgment in his favour (as in the present
case).
- Turning
to the instant case, the Court observes that at the time when the
Human Rights Commission's decision was given the enforcement
proceedings had already been pending for more than two years and
eight months after the date of ratification of the Convention by
Bosnia and Herzegovina. The just satisfaction awarded by the Human
Rights Commission is not in reasonable proportion with what the Court
would have been likely to award under Article 41 of the Convention in
respect of the same period (as illustrated in the judgment in
Jeličić, cited above). It therefore cannot be
regarded as adequate in the circumstances of the case (see, by
analogy, the principles established in Cocchiarella, cited
above, §§ 65-107, or Scordino, cited above, §§
173-216). Furthermore, the enforcement proceedings continued for more
than two years after the Human Rights Commission's decision.
The Government's objection must thus be dismissed.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible. In accordance with
its decision to apply Article 29 § 3 of the
Convention (see paragraph 3 above), the Court will immediately
consider the merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The Court notes that the present case is practically
identical to Jeličić (cited above) and Pejaković
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 judgment in issue in the present
case (almost five 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.
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
- The
applicants claimed 5,000 euros (EUR) each in respect of non-pecuniary
damage.
- The
Government considered the amount claimed to be excessive.
- The
Court considers it clear that the applicants sustained some
non-pecuniary loss arising from the violations of the Convention
found in the present case, for which they should be compensated.
Having regard to the amounts awarded in comparable cases (see
Jeličić, cited above, and Pejaković and Others,
cited above) and to the amount of compensation already awarded to the
applicants (see paragraph 8 above) and making its assessment on an
equitable basis, as required by Article 41 of the Convention, the
Court awards the applicants a total of EUR 1,300 plus any tax that
may be chargeable under this head.
B. Costs and expenses
- The
applicants did not claim costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(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 1,300 (one
thousand three hundred euros) in total, plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
