CASE OF JELIČIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 41183/02)
In the case of Jeličić v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Ján Šikuta, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 10 October 2006,
Delivers the following judgment, which was adopted on that date:
There appeared before the Court:
(a) for the Government
Ms Z. Ibrahimović, Acting Agent,
Ms M. Mijić, Acting Deputy Agent;
(b) for the applicant
Mr P. Radulović, Counsel,
Mr S. Nišić, Adviser.
The Court heard addresses by Ms Ibrahimović and Mr Radulović, as well as their answers to questions put by Judge Mijović.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. Statutory prevention of enforcement of judgments ordering the release of “old” foreign-currency savings
(a) The Foreign-Currency Transactions Act 1996 (Zakon o deviznom poslovanju, OG RS no. 15/96 of 8 July 1996, amendments to which were published in OG RS no. 10/97 of 30 April 1997);
(b) The Postponement of Enforcement Act 2002 (Zakon o odlaganju od izvršenja sudskih odluka na teret sredstava budžeta Republike Srpske po osnovu isplate naknade materijalne i nematerijalne štete nastale uslijed ratnih dejstava i po osnovu isplate stare devizne štednje, OG RS no. 25/02 of 20 May 2002, amendments to which were published in OG RS no. 51/03 of 1 July 2003);
(c) The Foreign-Currency Transactions Act 2003 (Zakon o deviznom poslovanju, OG RS no. 96/03 of 24 November 2003);
(d) The Temporary Postponement of Enforcement Act 2003 (Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, OG RS no. 110/03 of 20 December 2003);
(e) The Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, OG RS no. 63/04 of 15 July 2004, amendments to which were published in OG RS no. 47/06 of 11 May 2006); and
(f) The Old Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare devizne štednje, Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 28/06 of 14 April 2006 - “the 2006 Act”).
B. Liability for “old” foreign-currency savings
C. Other relevant legislation concerning “old” foreign-currency savings
1. Legislation of Bosnia and Herzegovina
“(1) This Act defines the procedure, manner and deadlines for the fulfilment of the obligations of Bosnia and Herzegovina arising from old foreign-currency savings deposited in local banks in the territory of Bosnia and Herzegovina.
(2) While Bosnia and Herzegovina shall be responsible for the fulfilment of obligations arising from old foreign-currency savings, the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District of Bosnia and Herzegovina shall provide the means.
(4) In accordance with the 2001 Agreement on Succession Issues, successor States to the former Socialist Federal Republic of Yugoslavia shall be liable for foreign-currency accounts opened at banks which had their seat in their respective territories. Bosnia and Herzegovina shall provide assistance, within the scope of its international activities, to the holders of such foreign-currency accounts ...
(5) Bosnia and Herzegovina shall fulfil its obligations defined in paragraphs 1 and 2 above following a verification process.”
“(1) Under this Act, old foreign-currency savings are foreign-currency savings in banks located in the territory of Bosnia and Herzegovina as at 31 December 1991, including interest earned until that date, less any payment after that date and any funds transferred to special privatisation accounts.
(2) Old foreign-currency savings defined in paragraph 1 above shall not include foreign-currency savings in branch offices located in the territory of Bosnia and Herzegovina of the Ljubljanska banka, Invest banka or other foreign banks.”
“According to preliminary data ... old foreign-currency savings amount to 1,979,000,000 Bosnian markas . The amount shall be determined in the verification process.”
“Any interest accrued after 1 January 1992 but not paid shall be cancelled. Interest for the period between 1 January 1992 and the entry into force of this Act shall be calculated afresh at an annual rate of 0.5%.”
“The fulfilment of obligations arising from old foreign-currency savings, if not verified in accordance with this Act, can only be requested in court proceedings.”
(2) Following the verification process, each claimant shall be provided with a certificate which identifies him or her and the amount of his or her old foreign-currency savings.
(3) The certificate referred to in paragraph 2 above ... shall include, inter alia, the following:
(c) a statement that the claimant will renounce any legal action following a cash payment;
(5) Following the verification process, a written decision shall be given to each claimant.
(6) It shall be permitted to appeal against a [first-instance] decision to the [competent second-instance body]. It shall be permitted to pursue an administrative dispute before the competent court against a [second-instance] decision.
(7) The legislation concerning administrative procedure of the Entities and District shall apply to the verification process.”
“An application for verification can be submitted by [16 October 2006] and the verification process shall be completed by [15 January 2007].”
(2) Should the claimant accept the amount determined in the verification process, the claimant shall sign a verification certificate. Following the claimant’s waiver of the right to appeal, a maximum of 100 Bosnian markas , or the total amount of savings lower than 100 Bosnian markas, shall be paid ...
(3) Furthermore, by the end of 2007 a maximum of 1,000 Bosnian markas , or the total amount of savings lower than 1,000 Bosnian markas, shall be paid. The remaining amount shall be reimbursed in State bonds in accordance with this Act ...
“... All State bonds shall be issued at the same time ... at the latest by 31 March 2008 on the following conditions:
(a) they shall become due within no more than thirteen years and at the latest by 31 December 2020 ...;
(b) they shall earn interest at an annual rate of 2.5%;
(c) they shall be redeemable before their maturity.”
“(1) Final judicial decisions concerning old foreign-currency savings shall also be subject to verification ...
(2) ... The provisions of this Act concerning the cancellation of interest, cash payments and State bonds shall apply.”
“The competent court shall of its own motion submit any pending case to the verification process in accordance with this Act.”
2. Legislation of the Republika Srpska
(a) Privatisation of Companies Act 1998 (Zakon o privatizaciji državnog kapitala u preduzećima, OG RS no. 24/98 of 15 July 1998, amendments to which were published in OG RS nos. 62/02 of 7 October 2002, 38/03 of 30 May 2003, 65/03 of 11 August 2003 and 109/05 of 16 November 2005)
Section 19(1) and (2) (as amended on 19 August 2003)
“A person who has ‘old’ foreign-currency savings in a bank located in the Republika Srpska and who is a citizen of the Republika Srpska at the date of the entry into force of this Act shall be entitled to coupons for the purchase of shares pursuant to this Act.
A person who is entitled to coupons in accordance with this section may decide to convert into coupons his or her entire savings or a part thereof.”
The privatisation coupons acquired in accordance with the above provisions were transferable; this included the possibility of selling them on the secondary market (section 22(2)). Any conversion into privatisation coupons was irrevocable (section 25(3)).
(b) Privatisation of Business Premises and Garages Act 2004 (Zakon o privatizaciji poslovnih zgrada, poslovnih prostorija i garaža, OG RS no. 98/04 of 4 November 2004)
D. Non-enforcement of the decisions of the former Human Rights Chamber
“Any official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“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. ...”
A. The parties’ submissions
B. Third-party submissions
C. The Court’s assessment
The Court disagrees. It considers that the situation of the applicant in the present case is significantly different from that of the majority of “old” foreign-currency savers who have not obtained any judgment ordering the release of their funds.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“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.”
Therefore, there has also been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 of the Convention;
2. Holds that there has been a violation of Article 1 of Protocol No. 1;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, which should be converted into Bosnian markas at the rate applicable on the date of settlement:
(i) EUR 163,460 (one hundred and sixty-three thousand four hundred and sixty euros) in respect of pecuniary damage;
(ii) EUR 4,000 (four thousand euros) in respect of non-pecuniary damage; and
(iii) any tax that may be chargeable on the above amounts;
(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;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza