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SOBOTA-GAJIC v. BOSNIA AND HERZEGOVINA - 27966/06 [2007] ECHR 896 (6 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/896.html
Cite as:
[2007] ECHR 896
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FOURTH
SECTION
CASE OF
ŠOBOTA-GAJIĆ v. BOSNIA AND HERZEGOVINA
(Application
no. 27966/06)
JUDGMENT
STRASBOURG
6
November 2007
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 Šobota-Gajić v. Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Mrs L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mrs F. Araci, Deputy Section
Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27966/06) 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 a citizen of Bosnia and Herzegovina, Ms Verica
Šobota-Gajić (“the applicant”), on 27 May
2006.
The
applicant was represented by Ms S. Nikšić, a lawyer
practising in Gradiška. The Government of Bosnia and
Herzegovina (“the Government”) were represented by Ms M.
Mijić, Agent, and by Ms Z. Ibrahimović, Deputy Agent.
The
applicant alleged that the national authorities failed to discharge
their positive obligations to secure her rights under Article 8 of
the Convention.
On
7 December 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it was
decided to examine the merits of the application at the same time as
its admissibility. It was also decided to give priority to the
application in accordance with Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1964 and lives in the vicinity of Gradiška.
On
8 May 1992 she married Z.G. The couple had two children, a daughter
born in 1992 (“A”) and a son born in 1994 (“B”).
Following
an alleged episode of domestic violence, in the beginning of 2001 the
applicant left her husband. She succeeded in taking A whereas Z.G.
kept B.
On
15 May 2001 the applicant requested the Social Work Centre in
Gradiška (“Social Work Centre”) to award her
custody of the children, pending the resolution of attempts at
reconciliation. The Social Work Centre did not decide upon this
request until 28 February 2003 (see paragraph 11 below).
On 30 May 2002 the applicant initiated proceedings
before the Gradiška Court of First Instance seeking a divorce
from Z.G. and custody of the children. On 23 December 2002 she sought
interim measures in respect of custody, but she did not receive any
response in this connection.
In a judgment of 19 February 2003, the Gradiška
Court of First Instance granted the applicant a divorce and awarded
her custody of A and B. Z.G. appealed.
On 28 February 2003 the Social Work Centre granted the
applicant provisional custody of A and B pending the entry into force
of the judgment of 19 February 2003. It relied on section 91(1) of
the Family Act 1979 which was no longer in force (see paragraph 40
below). The decision was immediately enforceable.
On
12 March 2003 the applicant initiated proceedings for the enforcement
of the decision of 28 February 2003. On 18 March 2003 the Social
Work Centre forwarded the decision to the Department for General
Administration (Odjeljenje za opštu upravu; another
municipal body) for enforcement. Following a lengthy exchange of
letters with the Social Work Centre and an initial refusal to enforce
the decision, on 30 July 2003 the Department for General
Administration accepted to enforce it.
On 28 April 2003 the applicant complained to the Human
Rights Chamber, a domestic human-rights body (case no. CH/03/14055).
On
18 August and 26 September 2003 the Department for General
Administration carried out two unsuccessful attempts to enforce the
decision of 28 February 2003.
On 6 November 2003 the Human Rights Chamber found a
violation of Article 8 of the European Convention on Human Rights.
The decision reads, in the relevant part, as follows:
“64. The Chamber finds in these circumstances that
the proceedings failed to meet the standard of speed and efficiency
required under Article 8 of the Convention in order to secure the
applicant's right to respect for her family life. The Chamber
emphasises that it is essential in this field, if the family life of
parents and children is to be respected, that the remedies available
and the system for enforcing them should be clearly established by
law, that the authorities involved should be properly aware of the
law and that they should avoid undue delay and in particular deal
promptly with appeals and other requests which come before them and
respect applicable time limits. It is particularly unacceptable that
family life should be jeopardised by interdepartmental disputes over
administrative responsibilities, as has occurred here.
...
69. ... Since the applicant's rights have been violated
by inter alia the fact that the decision of the Social Work
Centre granting her provisional custody of the children has not been
enforced yet, the Chamber considers it appropriate to order the
respondent Party to take all necessary steps to execute the decision
of the Social Work Centre, as soon as possible but in no case later
than 5 January 2004.”
The
decision, in the operative provisions, ordered the Republika Srpska
“to take all necessary steps through its authorities, to
promptly execute the decision of the Social Work Centre, in any event
no later than 5 January 2004” and “to pay to the
applicant, by 5 January 2004, 2,500 Bosnian markas [the equivalent of
1,280 euros] by way of compensation for non-pecuniary damages”.
The decision was read out at a public hearing on 5 December 2003.
Having been taken by the full Chamber, it entered into force
immediately.
On
18 December 2003 the Department for General Administration handed
over B to the applicant. On the next day Z.G. abducted B.
On
22 December 2003 the applicant sought from the Department for General
Administration that the decision of 28 February 2003 be enforced
anew. On the same day she submitted a criminal complaint against Z.G.
On 16 January 2004 the Department for General
Administration concluded that the decision of 28 February 2003 had
been enforced and terminated the enforcement proceedings. On 17 March
2004 the competent Ministry upheld the first-instance decision of 16
January 2004. It would appear that the Supreme Court of the Republika
Srpska has not yet examined an application for judicial review
submitted by the applicant.
On
12 March 2004 the Republika Srpska paid the damages awarded by the
Human Rights Chamber.
On
23 April 2004 the competent public prosecutor, having been satisfied
that there was sufficient evidence that Z.G. had committed child
abduction, filed with the Gradiška Court of First Instance an
indictment for confirmation. On 20 May 2004 the Gradiška Court
of First Instance confirmed the indictment. Following an initial
appearance of Z.G, no further steps were taken prior to the death of
Z.G. on 14 January 2006.
On 7 September 2004 the judgment of 19 February 2003
entered into force having been upheld by the Banja Luka District
Court. The provisional decision of 28 February 2003 thereby ceased to
have effect.
On 14 January 2006 Z.G. died. B remained with D.B.,
his paternal grandmother.
On
16 January 2006 the applicant addressed again the Social Work Centre
seeking the return of B.
On
1 February 2006 B objected to being returned and the Social Work
Centre decided not to use coercion.
On
27 February 2006 the Social Work Centre decided not to award custody
of B to D.B. On 3 April 2006 the competent Ministry upheld the
first-instance decision of 27 February 2006.
On
2 March 2006 the Social Work Centre unsuccessfully attempted to
persuade D.B. to facilitate the return of B. According to the minutes
of the meeting, D.B. expressed, in the presence of B, her disgust for
the applicant and for the fact that she lived in the countryside.
D.B. was described as manipulative, possessive, authoritarian and
aggressive.
On 20 March 2006 a social worker submitted her expert
opinion to the Social Work Centre. It stated that Z.G. had hindered B
from seeing the applicant to the end of his life by, for example,
threatening school teachers who tolerated his occasional meetings
with the applicant at the school premises. The separation, coupled
with Z.G.'s regular attempts to instil into B negative feelings
towards the applicant, led to B becoming estranged from the
applicant. The report concluded that the return of B would
nevertheless be in B's best interests.
On
31 March 2006 the Gradiška Minor Offences
Court convicted D.B. of subjecting B to psychological violence
and ordered the Social Work Centre to secure the prompt return of B
with police assistance if necessary. The decision was immediately
enforceable.
On
4 April 2006 the Social Work Centre obtained another expert opinion
recommending the prompt return of B.
On
11 April 2006 the Banja Luka District Court upheld the decision of 31
March 2006.
On
25 April 2006 B again objected to being returned.
On
11 May 2006 the local police refused to provide assistance to the
Social Work Centre.
On
12 May 2006 B once again objected to being returned.
On 14 June 2006 the Social Work Centre closed the case
and instructed the applicant to initiate proceedings for the
enforcement of the judgment of 19 February 2003 before the competent
court. The applicant appealed insisting that the Social Work Centre
secure the return of her son. On 10 July 2006 the competent Ministry
upheld the first-instance decision of 14 June 2006. On 22 February
2007 the Banja Luka District Court, upon an application for judicial
review, upheld the second-instance decision of 10 July 2006.
On
7 August 2006 the Social Work Centre informed the Gradiška
Minor Offences Court that it was unable to enforce the
decision of 31 March 2006 because of the lack of necessary secondary
legislation.
On
22 August 2006 the applicant applied to the Gradiška Court of
First Instance for the decision of 31 March 2006 to be enforced. The
Gradiška Court of First Instance initially issued an execution
writ (on 8 September 2006), but it subsequently decided (on 10
January 2007) that the applicant should have sought from the Social
Work Centre that the impugned decision be enforced. The Gradiška
Court of First Instance accordingly quashed the execution writ of 8
September 2006.
On
29 September 2006 B again objected to being returned, but continued
to occasionally meet with the applicant at the school premises (on 26
October, 6 November and 19 December 2006).
On
22 January 2007 the Social Work Centre returned B to the applicant.
II. RELEVANT DOMESTIC LAW
Two
Acts regulate enforcement of judicial and administrative orders.
While judicial orders and administrative orders for the payment of
money are enforced by the courts pursuant to the Enforcement
Proceedings Act 2003 (Zakon o izvršnom postupku;
published in the Official Gazette of the Republika Srpska (“OG
RS”) no. 59/03 of 18 July 2003; amendments published in OG RS
nos. 85/03 of 23 October 2003 and 64/05 of 28 February 2005),
all other administrative orders are enforced by the administrative
bodies pursuant to the Administrative Proceedings Act 2002 (Zakon
o opštem upravnom postupku; published in OG RS no.
13/02 of 18 March 2002).
In
connection with judicial orders for the return of a child, section
228 of the Enforcement Proceedings Act 2003 provides for repeated
enforcement of one and the same order, if less than 60 days elapsed
before the child has been abducted again. On the contrary, no such
provision exists in connection with administrative orders for the
return of a child (such as the orders of the social work centres).
In accordance with the old Family Act 1979 (Porodični
zakon; published in the Official Gazette of the Socialist
Republic of Bosnia and Herzegovina (“OG SRBH”) no. 21/79;
amendments published in OG SRBH no. 44/89), in the course of
matrimonial proceedings, the social work centres were authorised to
make interim orders in respect of the custody of children (section
91(1) of this Act), whilst the divorce courts were authorised to make
interim orders in respect of the maintenance payments (section 77(1)
of this Act). Since 4 September 2002, when the new Family Act 2002
entered into force (Porodični zakon; published in OG RS
no. 54/02 of 27 August 2002), the divorce courts have been authorised
to make interim orders in respect of both custody and maintenance in
the course of matrimonial proceedings. The following are the relevant
provisions of the new Family Act 2002:
Section 74(1)
“In the course of matrimonial proceedings the
court may indicate interim measures in respect of custody and
maintenance of minor children ...”
Section 291
“The provisions of this Act concerning marriage,
parental responsibility, adoption, guardianship and maintenance shall
be applied in the proceedings pending before the court or the social
work centre on the date of the entry into force of this Act, unless a
first-instance decision was taken prior to that date.”
Pursuant
to section 3 of the Domestic Violence Act 2005 (Zakon o zaštiti
od nasilja u porodici; published in OG RS no. 118/05 of 21
December 2005), the social work centres, together with the police,
the public prosecutors and the courts, are under a duty to protect
the victims of domestic violence. Pursuant to section 19 of this Act,
the social work centres keep record of all personal protection
orders, monitor and report on enforcement thereof and propose
termination, continuation or conversion thereof.
Child abduction is punishable by a fine or
imprisonment for a term not exceeding two years (Article 205 § 1
of the Criminal Code 2003; Krivični zakon Republike Srpske;
published in OG RS no. 49/03 of 25 June 2003; amendments published in
OG RS nos. 108/04 of 14 December 2004, 37/06 of 5 April 2006 and
70/06 of 4 July 2006). If the suspended sentence is imposed, the
criminal court may order that the perpetrator return the child at
issue (Article 205 § 4 of this Code).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained under Article 8 of the Convention that the
national authorities had failed to take all reasonable measures to
facilitate her reunion with her son, regardless of several domestic
decisions in her favour. Article 8 reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Government invited the Court to examine separately the following
periods: (a) the period until the first hand-over of B which took
place on 18 December 2003; and (b) the period from B's abduction on
19 December 2003 until his definitive return to the applicant on 22
January 2007. In so far as the applicant complained about the former
period, her application was out of time. In so far as she complained
about the latter period, her application was inadmissible on
non-exhaustion grounds, by reason of her failure to complain to the
Constitutional Court of Bosnia and Herzegovina.
Alternatively,
the Government maintained, and the applicant disagreed, that,
following the return of B on 22 January 2007, the applicant could no
longer claim to be the victim of the alleged violation of the
Convention within the meaning of Article 34 of the Convention (even
assuming that she could have previously claimed so). In this
connection, they referred to the Human Rights Chamber's decision in
the present case acknowledging a breach of Article 8 of the
Convention and awarding damages.
To
begin with, the Court does not consider it appropriate to divide the
situation complained of in the manner suggested by the Government. It
is crucial in this connection that the applicant did not complain
under Article 6 of the Convention about non-enforcement of individual
domestic decisions. On the contrary, she complained under Article 8
of the Convention about the overall conduct of the national
authorities from her initial communication (on 15 May 2001) until the
definitive return of B (on 22 January 2007).
Given
that the applicant filed her application with the Court while the
impugned situation was ongoing, the objection of the Government
concerning the six-month time-limit must be rejected.
Secondly,
the Court notes that the Constitutional Court of Bosnia and
Herzegovina cannot examine a complaint that has already been examined
by the former Human Rights Chamber (see Jeličić v.
Bosnia and Herzegovina (dec.), no. 41183/02,
ECHR 2005 ...).
Having
obtained a decision of the Human Rights Chamber concerning the
impugned situation, the applicant was unable to complain about that
situation also to the Constitutional Court of Bosnia and Herzegovina.
Accordingly, the objection of the Government that the applicant
failed to exhaust all domestic remedies must also be rejected.
Thirdly,
in its judgment of 25 June 1996 in the case of Amuur v. France
the Court reiterated that “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, either expressly or in substance, and then afforded
redress for, the breach of the Convention” (Reports of
Judgments and Decisions 1996-III, p. 846, § 36). 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).
While
the impugned situation ended on 22 January 2007 and the domestic
Human Rights Chamber acknowledged a breach of Article 8 of the
Convention in respect of that situation, the Court finds that the sum
awarded (1,280 euros) no longer constitutes sufficient redress given,
notably, the continuation of the impugned situation for more than
three years after the award.
The
objection of the Government concerning the applicant's victim status
must thus also be dismissed.
Lastly, the Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The
parties disagreed as to whether the national authorities had
discharged their positive obligations to secure the applicant's
rights under Article 8 of the Convention. While the applicant
maintained that the national authorities had demonstrated
incompetence and an alarming lack of conscientiousness, the
Government pleaded that the national authorities had done all they
could given the obstinate attitude of B's father and paternal
grandmother and B's objections to being returned.
The Court finds it undisputed
that the relationship between the applicant and her son amounted to
“family life” within the meaning of Article 8 of the
Convention.
That
being so, it must be determined whether there has been a failure to
respect the applicant's family life. The Court reiterates that the
essential object of Article 8 is to protect the individual against
arbitrary action by the public authorities. There are in addition
positive obligations inherent in an effective “respect”
for family life (see Keegan v. Ireland, judgment of 26
May 1994, Series A no. 290, p. 19, § 49). In this
context, the Court has repeatedly held that Article 8 includes a
right for parents to have measures taken that will permit them to be
reunited with their children and an obligation on the national
authorities to take such action (see Eriksson v. Sweden,
judgment of 22 June 1989, Series A no. 156, pp. 26-27, § 71,
Margareta and Roger Andersson v. Sweden, judgment of 25
February 1992, Series A no. 226-A, p. 30, § 91, Olsson
v. Sweden (no. 2), judgment of 27 November 1992, Series
A no. 250, pp. 35-36, § 90, Hokkanen v. Finland,
judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55,
Ignaccolo-Zenide v. Romania, judgment of 25 January 2000, Reports
2000-I, p. 265, § 94, Nuutinen v. Finland,
judgment of 27 June 2000, Reports 2000-VIII, p. 83, §
127, and Sylvester v. Austria, nos. 36812/97
and 40104/98, § 58, 24 April 2003).
However, the national
authorities' obligation to take measures to facilitate reunion is not
absolute, since the reunion of a parent with children who have lived
for some time with the other parent may not be able to take place
immediately and may require preparatory measures to be taken. The
nature and extent of such preparation will depend on the
circumstances of each case, but the understanding and co-operation of
all concerned are always an important ingredient. Whilst national
authorities must do their utmost to facilitate such co-operation, any
obligation to apply coercion in this area must be limited since the
interests as well as the rights and freedoms of all concerned must be
taken into account, notably the children's interests and their rights
under Article 8 of the Convention. Where contacts with the parent
might appear to threaten those interests or interfere with those
rights, it is for the national authorities to strike a fair balance
between them (see Hokkanen,
cited above, p. 22, § 58, and Ignaccolo-Zenide,
cited above, p. 265, § 94).
The Court, therefore, has to
ascertain whether the national authorities took all such necessary
steps to facilitate reunion as could reasonably be demanded in the
special circumstances of the case (see Hokkanen,
cited above, p. 22, § 58, Ignaccolo-Zenide,
cited above, p. 266, § 96, and Nuutinen
v. Finland, cited above, pp. 83-84,
§ 128) and whether the national authorities struck a fair
balance between the interests of all persons concerned and the
general interest in ensuring respect for the rule of law (see
Nuutinen, cited above, § 129).
In
this connection, the Court also reiterates that, in a case like the
present one, the adequacy of a measure is to be judged by the
swiftness of its implementation as the passage of time can have
irremediable consequences for relations between the children and the
parent who does not live with them
(see, Ignaccolo-Zenide,
cited above, p. 267, § 102).
Turning to the instant case, the
Court notes that the applicant made her first submission to the
national authorities with a view to reuniting with her son on
15 May 2001. The actual reunion took place on 22 January 2007. The
impugned situation thus lasted more than four and a half years after
the ratification of the Convention by Bosnia and Herzegovina on
12 July 2002 (the period which falls within the Court's
jurisdiction ratione temporis).
At the date of the ratification of the Convention, the
proceedings before the competent Social Work Centre for the
determination of the applicant's custody rights must have been at an
advanced stage, as they had already been pending for almost one year
and two months. The actual decision was taken another seven months
after ratification – on 28 February 2003. The Social Work
Centre considered the reunion with the applicant to be in B's best
interests and, accordingly, awarded custody of B to the applicant. On
12 March 2003 the applicant initiated proceedings for the enforcement
of the decision as it was immediately enforceable. Nevertheless,
owing to interdepartmental disputes over administrative
responsibilities, the enforcement stage lasted more than nine months
(until 18 December 2003). Responsibility for the above delays cannot
be attributed to the applicant.
Z.G.
abducted B the day after his hand-over – on 19 December 2003.
Domestic law apparently does not provide for an administrative order
for the return of a child to be enforced more than once (it is
envisaged only in respect of judicial orders). In any case, the
administrative order of 28 February 2003 ceased to have effect on 7
September 2004, on the termination of the matrimonial proceedings.
On
22 December 2003 the applicant submitted a criminal complaint against
Z.G. The Government did not explain why the criminal proceedings had
remained at a preliminary stage until the death of Z.G. (that is,
more than two years after the abduction).
On 7 September 2004, while the criminal proceedings against Z.G. were
still pending, the judgment of 19 February 2003 entered into force.
It ordered, among other things, the return of B to the applicant.
While it is true that the applicant could have initiated proceedings
for the enforcement of that order, the Court considers that she was
not required to do so since she had already submitted a criminal
complaint which could have led to an order for the return of B
pursuant to Article 205 § 4 of the Criminal Code 2003 (see
paragraph 42 above).
The
situation significantly changed on 14 January 2006 when Z.G. died:
the criminal proceedings terminated and both parties pleaded that it
was no longer possible to initiate civil proceedings for the
enforcement of the judgment of 19 February 2003. However, even
assuming that the applicant could have initiated such civil
proceedings before the competent court, her failure to do so did not
result in any additional delays. Indeed, the competent Social Work
Centre continued attempting to secure the return of B, hampered at
that stage by Z.G.'s mother.
On
31 March 2006 the Gradiška Minor Offences
Court ordered the Social Work Centre to promptly secure the
return of B with police assistance if necessary. The order of 31
March 2006, although immediately enforceable, was not enforced until
22 January 2007. It triggered some confusion as to the responsibility
for enforcement: the Social Work Centre initially refused to enforce
the order (citing the lack of necessary secondary legislation) and
the Gradiška Court of First Instance issued an execution writ
on 8 September 2006, only to later decide that the Social Work Centre
was responsible after all. The local police also refused to provide
assistance, regardless of the clear instructions of the Gradiška
Minor Offences Court. There is again no indication that the
applicant contributed to any of these delays.
It
is true that the reunion of a parent with a child who has lived for
some time with the other parent may not be able to take place
immediately and without the necessary preparation, particularly in
the circumstances of B's case. However, there is no evidence that any
such preparatory work explained the above-noted delays by the
authorities.
There
has accordingly been a violation of Article 8 of the Convention.
II. 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
applicant claimed 100,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered the claimed amount to be excessive.
The
Court sees no reason to doubt that the applicant suffered distress as
a result of the violation found which justifies an award of
non-pecuniary damage. Having regard to the amounts awarded in
comparable cases (see, for example, KaradZić v. Croatia,
no. 35030/04, § 71, 15 December 2005 and Tomić v.
Serbia, no. 25959/06, § 121, 26 June 2007)
and to the amount of compensation already awarded to the applicant
(see paragraph 15 above) and making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant EUR 8,800 plus any tax that may be chargeable under
this head.
B. Costs and expenses
The
applicant also claimed almost EUR 9,000 for the costs and expenses
incurred in the domestic proceedings and EUR 3,000 for those incurred
in the proceedings before the Court. She submitted a relatively
detailed bill of costs.
The
Government considered the claimed amounts 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 were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
In
the present case, the Court agrees with the Government that the
amounts claimed by the applicant are excessive. Regard being had to
all the information in its possession and the above criteria, the
Court considers it reasonable to award the applicant EUR 3,000 for
the costs and expenses incurred domestically. As to the legal costs
incurred before it, the Court notes that the applicant's
representative submitted an initial application in one of the
official languages of Bosnia and Herzegovina and, at the request of
the Court, written pleadings in English. Having regard to the tariff
fixed by the local bar associations which the Court considers
reasonable in the circumstances of this case, she is entitled to
approximately EUR 1,600. In addition, the Court awards the sum of EUR
100 for the secretarial and other expenses (including translating six
pages from one of the official languages of Bosnia and Herzegovina
into English).
The
applicant should therefore receive EUR 4,700 in all plus any tax that
may be chargeable under this head.
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
8 of the Convention;
Holds
(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, EUR 8,800
(eight thousand eight hundred euros) in respect of non-pecuniary
damage and EUR 4,700 (four thousand seven hundred euros) in respect
of costs and expenses, plus any tax that may be chargeable;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Araci Josep Casadevall
Deputy Registrar President
