European Court of Human Rights

Information Note on the Court’s case-law No. 80

November 2005

Jeličić v. Bosnia and Herzegovina (dec.) - 41183/02

Decision 15.11.2005 [Section IV]

Article 35

Article 35-2

Same as matter submitted to other procedure

Human Rights Chamber for Bosnia and Herzegovina a “domestic” rather than “international” body: preliminary objection dismissed

 

Article 35-1

Exhaustion of domestic remedies

Human Rights Chamber for Bosnia and Herzegovina a “domestic” remedy

 

In 1983 the applicant deposited a certain amount of German marks in two foreign-currency savings accounts at a bank located in what is now the Republika Srpska. She later attempted to withdraw her savings on several occasions to no avail. The bank explained that her money had been re-deposited with the National Bank in Belgrade prior to the dissolution of the Socialist Federal Republic of Yugoslavia.

In 1995 the Human Rights Chamber for Bosnia and Herzegovina was set up by the Agreement on Human Rights (Annex 6 to the 1995 Dayton Peace Agreement) in order to assist Bosnia and Herzegovina and its entities in honouring their obligations under that Agreement, namely to secure to all persons within their jurisdiction the highest level of internationally recognised human rights (including those provided in the European Convention on Human Rights).

In 1997 the applicant brought a civil action to recover her savings and in 1998 a first-instance court found in her favour. In 2000 the Human Rights Chamber found a violation of Article 6 of the Convention and of

Article 1 of Protocol No. 1 arising from the failure to enforce the 1998 judgment. The Republika Srpska was ordered to ensure full enforcement without further delay but its Payment Bureau refused to enforce the judgment relying on various legislation enacted between 1996 and 1999. In 2002 the privatisation of the applicant’s bank was completed and the applicant’s foreign-currency deposit became a public debt of the Republika Srpska.

Article 35(2)(b): In order to determine whether the Human Rights Chamber was or was not an “international” body the Court took as its starting point the legal character of the instrument founding this body, but also considered the Chamber’s composition, its competence, its place (if any) in the existing legal system as well as its funding. True, the Chamber had been set up as a transitional measure, pending Bosnia and Herzegovina’s accession to the Council of Europe, and there was no possibility of appeal against a Chamber’s decision to the Constitutional Court of Bosnia and Herzegovina or to any other court in Bosnia and Herzegovina. The Chamber nevertheless constituted a particular part of the legal system of Bosnia and Herzegovina. While the Chamber had been set up pursuant to an international treaty, various factors noted by the Court allowed it to consider that the proceedings before the Chamber had not been “international” within the meaning of Article 35(2)(b) and, further, that proceedings before the Chamber should be considered a “domestic” remedy within the meaning of Article 35(1). The Government’s objection was therefore dismissed.

Article 35(1): An applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible. In the event of there being a number of remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In the present case, the applicant had pursued an appeal before the Chamber which the Court had found to constitute a “domestic” remedy within the meaning of Article 35(1). The Chamber’s decisions had, in general, been enforced and the fact that the Chamber’s decision in the instant case had not been enforced did not render that remedy ineffective. Even assuming that an appeal to the Constitutional Court for Bosnia and Herzegovina could be considered to be an effective domestic remedy in the present case within the meaning of Article 35(1), the applicant had been entitled to choose between two effective domestic remedies and her application could not be rejected because of that choice.

Admissible under Article 6(1) of the Convention and Article 1 of Protocol No. 1.

 

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