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MURTIC AND CERIMOVIC v. BOSNIA AND HERZEGOVINA - 6495/09 [2012] ECHR 1053 (19 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/1053.html
Cite as:
[2012] ECHR 1053
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FOURTH
SECTION
CASE OF MURTIĆ AND ĆERIMOVIĆ
v. BOSNIA AND
HERZEGOVINA
(Application
no. 6495/09)
JUDGMENT
STRASBOURG
19 June
2012
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 Murtić and
Ćerimović v. Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Ljiljana Mijović, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 29 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6495/09) 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
Fikret Murtić and Ms Raska Ćerimović (“the
applicants”), on 6 October 2005.
The
applicants were represented by J. Vukadin and V. Vukadin, lawyers
practising in Zagreb. The Bosnian-Herzegovinian Government (“the
Government”) were represented by their Deputy Agent,
Ms Z. Ibrahimović.
The
applicants complained, in particular, of the non-enforcement of a
decision of the Human Rights Chamber of 8 March 2002 in their favour.
On
7 May 2009 the application was communicated to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1963 and 1959 respectively and live in Velika
Kladuša.
They were both employed by Agrokomerc (“the
company”), an agricultural company based in Velika Kladuša.
In August 1991 the workers’ council of the company adopted a
decision on the issuance of internal shares to the company’s
employees as part of its reorganisation from a socially owned company
into a joint-stock company under the applicable regulations. It was
decided that one third of the employees’ salaries would be
allocated towards instalment payments for the internal shares to be
issued to them.
On 30 March 1993 the company’s management board issued a series
of resolutions authorising retention of earnings that resulted in an
increase in the company’s internal share capital. As a result
of these board resolutions, the internal share capital amounted to
80.9% of the company’s total share capital (the remainder being
held by the State). The reorganisation process continued until August
1994, when the management of the company was taken over by the State
following armed conflict in the north-western part of Bosnia and
Herzegovina (where Velika Kladuša is located) during the
1992-95 war. Following the State taking control of the company, the
applicants were effectively unable to exercise any of their rights as
shareholders, although the company continued to state the
privately-held internal share capital allotted to its employees on
its annual balance sheets, as well as the State-owned capital, until
30 June 1999.
On
7 August 1995 the applicants’ employment was suspended, as well
as that of many other employees of the company, and they were placed
on a waiting list for potential future employment by the new
management of the company. However, they were never subsequently
offered the opportunity to resume their employment.
On 20 June 2000 the applicants complained to the Human
Rights Chamber (a domestic human-rights body set up under Annex 6 to
the 1995 General Framework Agreement for Peace) in two separate
appeals.
On
7 March 2001, Revsar, an auditing and consulting company based in
Sarajevo, conducted an audit of the transfer of ownership of the
company. It held that the measures taken from 1991 until 1994 to
establish internal share capital had not been in accordance with the
law and that, therefore, such internal share capital had never been
formed. Consequently, it concluded that the company was 100%
State-owned.
On
31 July 2001 the Federation of Bosnia and Herzegovina issued a
decree
placing the company on the list of the companies under its control on
the basis of the State-owned capital.
On
8 February 2002 the Human Rights Chamber joined the applicants’
cases (see paragraph 8 above) and those of Mr M. Š.
and the Association for the Protection of Unemployed Shareholders of
Agrokomerc and adopted a single decision. It was delivered on
8 March 2002. The Human Rights Chamber held that the applicants had
acquired possessions, in the form of their paid-up internal shares in
the company, which were protected by law and found a violation of
Article 6 of the Convention and Article 1 of Protocol No. 1 to the
Convention.
The
reasons were set out in the decision, the relevant paragraphs of
which read as follows:
“290. In summary, the Chamber has concluded that
the applicants acquired protected “possessions” in their
paid internal shares in Agrokomerc for which payment was made on the
basis of: (a) permanent deposits; (b) allocation of parts of
salaries, either on monthly basis during the period of 1991 to 1994,
or on an annual basis for 1992; and (c) distribution of profits for
1992 in proportion to the amount of paid internal shares. The
decision on the results of the renewed Revsar audit of 7 March
2001, which cancelled all internal shares in favour of state capital
in Agrokomerc, deprived the applicants of these protected
possessions. In addition, by exercising effective exclusive control
over the management of Agrokomerc, the authorities of the Federation
further interfered with the rights of the applicants to participate
in the management and to share in the profits of Agrokomerc in
relation to their paid internal shares. In these respects the
Federation did not act “subject to the conditions provided by
law”. Consequently, the Chamber concludes that the Federation
has violated the rights of the applicants protected by Article 1 of
Protocol No. 1 to the Convention.
...
298. The applicants are correct that they have had no
real and effective means to participate in the establishment of the
ownership structure of Agrokomerc, as that has been established
through the performance of the audit, which was conducted exclusively
by the auditor Revsar [...]. There have been no actual or effective
proceedings in which the applicants have been invited to participate.
Under the law, the only way for the applicants to participate in the
establishment of the ownership structure of the company in which they
are shareholders has been to challenge the appointment of the auditor
and to challenge the results of the audit [...]. This has not proven
effective in this case. Moreover, the Chamber considers that this
type of process has not been adequate properly to allow the
applicants to have access to courts for the determination of their
civil rights, as guaranteed by Article 6 of the Convention”.
Furthermore, the Human Rights Chamber ordered the
Federation of Bosnia and Herzegovina to take all necessary steps to
recognise the applicants as holders of internal shares in relation to
the amount of their paid-up internal shares and to enable them to
exercise their right as shareholders to participate in the management
of the company. In particular, the Federation was ordered to: (i)
employ, at its own expense, internationally recognised auditors to
undertake an audit to determine the complete ownership structure of
the company, in compliance with International Accounting Standards
and International Auditing Standards; (ii) establish the value of the
applicants’ shares and have them formally registered; and (iii)
provide them with individual share certificates. Lastly, the Human
Rights Chamber ordered interim measures whereby certain procedures
and arrangements were put in place as regards the company’s
management until the adoption of the final audit report and the
convocation of a general meeting of the company’s shareholders.
On 28 November 2003 the Prague branch of Deloitte &
Touche produced an audit report, which found that 90.33% of the
company’s capital was State-owned, the remaining 9.67% being in
private ownership. In addition, only 3.34% of the total capital had
been assigned to individual private shareholders, whilst the
outstanding 6.33% remained unassigned. The value of the applicants’
shares had not been established. Consequently, they could not attend
the general meeting of the company’s shareholders which was to
be held on 16 March 2004.
On
7 May 2004 the Human Rights Commission (the legal successor of the
Human Rights Chamber) decided to lift the interim measures indicated
in the decision of 8 March 2002 (see paragraph 12 above), after
having received the final report on the completed audit from the
Federation of Bosnia and Herzegovina and a signed copy of the minutes
of the first general meeting of the company’s shareholders.
On
12 May 2005 the Bihać Cantonal Court registered the changes in
the ownership of the company resulting from its reorganisation.
On
14 February 2006 a general meeting of the company’s
shareholders adopted a resolution authorising the distribution of the
unassigned private share capital to individual shareholders (see
paragraph 13 above).
On 29 October 2007 the applicants were issued with
individual share certificates and their shares were formally
registered with the Securities Commission. It was established that
the first applicant was entitled to 451 shares with a market value of
4,510 convertible marks (BAM) and the second applicant to 1,086
shares with a market value of BAM 10,000. Consequently, the
applicants were also allowed to attend general meetings of the
company’s shareholders.
On 15 January 2009 the Constitutional Court of Bosnia
and Herzegovina (which became responsible for the supervision
of the execution of the Human Rights Chamber’s decisions after
the Human Rights Commission ceased to exist) concluded that the Human
Rights Chamber’s decision of 8 March 2002 had been fully
implemented.
II. RELEVANT DOMESTIC LAW
In accordance with Article 239 of the Criminal Code 2003 (Official
Gazette of Bosnia and Herzegovina, nos. 3/03, 37/03, 32/03, 54/04,
61/04, 30/05, 53/06, 55/06, 32/07 and 8/10), non-enforcement of a
decision of the Human Rights Chamber is a criminal offence:
“An official of the State, the Entities or the
Brčko District who refuses to enforce a final and enforceable
decision of the Constitutional Court of Bosnia and Herzegovina, the
Court of Bosnia and Herzegovina, the Human Rights Chamber or the
European Court of Human Rights, or who prevents the enforcement of
any such decision, or who frustrates the enforcement of any such
decision in some other way, shall be punished by imprisonment for a
term of between six months and five years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
The
applicants complained of the non-enforcement of the Human Rights
Chamber’s decision of 8 March 2002. They relied on Article 6 of
the Convention and Article 1 of Protocol No. 1 to the Convention.
Article
6, as far as relevant, reads as follows:
“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.”
A. Admissibility
The
Government submitted that the applicants could no longer claim to be
victims within the meaning of Article 34 of the Convention because
the decision in question had been fully enforced. The applicants
disagreed.
The
Court reiterates that it falls first to the national authorities to
redress any alleged violation of the Convention. In this regard, the
question of whether or not an applicant can claim to be a victim of
the violation alleged is relevant at all stages of the proceedings
under the Convention.
The
Court further reiterates 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, that there has been a
breach of the Convention and then afforded redress for that breach
(see, for example, Amuur v. France, 25 June 1996, § 36,
Reports of Judgments and Decisions 1996-III; Dalban v.
Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 180
and 193, ECHR 2006 V).
Turning
to the facts of the present case, the Court notes that the Human
Rights Chamber’s decision was fully enforced on 29 October 2007
(see paragraph 17 above). This was confirmed by the Constitutional
Court (see paragraph 18 above). However, the implementation did not
involve any acknowledgment of the violations alleged, nor did it
afford the applicants adequate redress. In these circumstances,
they may still claim to be victims within the meaning of Article 34
of the Convention in relation to the period during which the Human
Rights Chamber’s decision remained unenforced (see Dubenko
v. Ukraine, no. 74221/01, § 36, 11 January 2005; and
Runić and Others v. Bosnia and Herzegovina, nos.
28735/06, et al., § 16, 15 November
2011). The Court thus rejects the Government’s
objection.
The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
Government argued that all the necessary steps for the implementation
of the Human Rights Chamber’s decision had been taken
diligently and promptly. They maintained that the length of time
taken to enforce the decision had not been excessive, bearing in mind
the complex financial and legal procedures that the enforcement had
required. In particular, after the audit to international standards
had been completed, the undistributed share capital, which had been
divided into 31,034.873 shares, had to be allocated to 7,000
individual shareholders. Moreover, before the shares could be
allocated and the shareholders registered with the Securities
Commission, the company had to be restructured in order to comply
with the existing regulations governing businesses.
The
Court reiterates that the execution of a judgment given by any court
must be regarded as an integral part of a “hearing” for
the purposes of Article 6 (see Hornsby v. Greece, no.18357/91,
§ 40, 19 March 1997). The Court also recalls its extensive
case-law concerning the non-enforcement or the delayed enforcement of
final domestic judgments (see, amongst many other cases, Jeličić
v. Bosnia and Herzegovina, no.
41183/02, §§ 38-39, ECHR 2006 XII; Tacea v.
Romania, no. 746/02, 29 September 2005; and Yuriy Nikolayevich
Ivanov v. Ukraine, no. 40450/04, §§ 51-57, 15 October
2009).
The
Court notes that the domestic decision in the present case ordered
the authorities to establish the value of the applicants’
shares, issue individual share certificates and register them with
the Securities Commission, so as to enable them to exercise their
rights as shareholders to participate in the management of the
company and in the distribution of profits. The Court observes in
that connection that the shares held by the applicants undoubtedly
had an economic value and constituted “possessions”
within the meaning of Article 1 of Protocol No. 1 (see Olczak v.
Poland (dec.), no. 30417/96, § 60, ECHR 2002 X; and
Sovtransavto Holding v. Ukraine, no. 48553/99, § 91, ECHR
2002 VII).
The
Court is aware that the implementation of the Human Rights Chamber’s
decision required a set of somewhat complex financial and legal
actions. It is also aware that some important documents concerning
the process of the company’s privatisation were missing or
destroyed due to the war and that its records had not been properly
kept for a period. That, however, cannot be a justification for a
delay of more than five years, the period for which the domestic
decision under consideration in the present case remained unenforced.
Such a delay has, in the past, been considered to be excessive (see
Jeličić, cited above, § 40; Kudić v.
Bosnia and Herzegovina, no. 28971/05, § 20, 9 December 2008;
Pralica v. Bosnia and Herzegovina, no. 38945/05, § 16, 27
January 2009; Čolić and Others v. Bosnia and
Herzegovina, nos. 1218/07 et al., § 15, 10 November
2009; and Runić and Others, cited above, §
21). The Court does not see any reason to depart from that
jurisprudence.
Accordingly,
there has been a violation of Article 6 of the Convention and of
Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants further complained that they did not have an effective
domestic remedy for their non-enforcement complaint. They relied on
Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government argued that there had not been a violation of Article 13
of the Convention in the present case, without developing this
argument further.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
Having
regard to its finding relating to Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention, the Court considers
that it is not necessary to examine whether, in this case, there has
also been a violation of Article 13 of 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 50,000 euros (EUR) each in respect of
non-pecuniary damage. The Government considered that amount 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, the Court awards the applicants EUR 3,600
each in respect of non-pecuniary damage, plus any tax that may be
chargeable thereon.
B. Costs and expenses
The
applicants did not claim any costs and expenses.
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
Declares the application admissible by a
majority;
Holds by six votes to one that there has been a
violation of Article 6 of the Convention;
Holds by six votes to one that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
Holds unanimously that there is no need to
examine the complaint under Article 13 of the Convention;
Holds by six votes to one
(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 3,600
(three thousand six hundred) each, in respect of non-pecuniary
damage, plus any tax that may be chargeable, 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 19 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Kalaydjieva is annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
I
regret that I am unable to join the majority in the present case in
their findings with regard to Article 6 and Article 1 of Protocol
No.1 to the Convention.
I
am not convinced that on 7 May 2009, when
the Court communicated the complaints of Mr
Murtic and Ms Cerimovic, the applicants could still be considered
victims of the authorities’ failure to enforce the Human Rights
Chamber’s decision of 2002, as alleged by them in their
application of 6 October 2005 (see paragraphs 1
and 4 of the judgment).
In
its decision the Human Rights Chamber found violations of their
rights to “possessions” within the meaning of Article 1
of Protocol No. 1, and to access to a court under Article 6 for the
purpose of determining the dispute concerning these “possessions”.
The Chamber imposed interim measures and ordered
the authorities to take steps to provide appropriate redress in
respect of the violations found; this implied a complicated procedure
of international audit in order to determine the value of the
applicants’ shares in “Agrokomerc” and to enter
their names in the register of shareholders. It is not contested that
these steps were undertaken shortly after the decision and were
completed by 29 October 2007, when the applicants’ rights as
shareholders were registered with the national Securities Commission,
nor that the applicants exercised their rights as shareholders
effectively thereafter. On 15 January 2009, several months prior to
communication of the applicants’ complaints by the Court, the
Constitutional Court of Bosnia and Herzegovina – responsible
for supervising execution of the decisions of the Human Rights
Chamber (see paragraph 18) – confirmed that it had been fully
implemented. In my understanding, this was sufficient to conclude
that the matters concerning enforcement of the decision were
resolved, at the latest, on 29 October 2007. The grounds on
which the applicants contest the full implementation of the impugned
decision were not specified (see paragraph 21).
In
so far as the applicants complain of the delay accumulated in the
enforcement process, I disagree with the somewhat automatic
application of the principles reached by the Court in earlier cases
against Bosnia and Herzegovina, listed in paragraph 29.
In my opinion, it should not be overlooked that, in contrast to those
cases, which concerned failure or delay in the payment of specific
amounts, the present case involved far more complicated enforcement
steps, such as an international audit for the purposes of determining
the applicant’s shares in a company - a process which no doubt
entails “somewhat complex financial and legal actions” in
all legal systems. In the instant case this process also involved
difficulties in connection with missing or destroyed documents, and
absent or improperly kept records from the war period (see paragraph
29). In the
absence of any specific inaction or delay in enforcement for which
the authorities were responsible, these difficulties are serious
enough to explain the impugned five-year delay in implementation of
the decision of the Human Rights Chamber. This situation should be
distinguished from that examined in the cases cited in paragraph 29,
where non-enforcement resulted from legislative amendments adopted to
avoid, modify or at least delay the enforcement of final decisions
ordering the payment of specified amounts to the affected
individuals. In my view these differences suffice to find no
violation of the applicants’ rights under Article 6 and Article
1 of Protocol No. 1.
In
so far as the applicants may be considered to
complain that the enforcement of the decision of the Human Rights
Chamber was not sufficient to redress the violations established by
that body, such a complaint seems not to be pertinent to its
enforcement, since the Human Rights Chamber’s 2002 decision
failed to order any compensation for the non-pecuniary damage
resulting from the violations of their rights to “possessions”
and access to court. This issue should be distinguished from the
question whether the applicants were entitled to any compensation for
the subsequent delay in the enforcement of the impugned decision. It
appears that in this regard the scope of the applicants’ case
as registered before the Court differed from that under parallel
examination by the Constitutional Court in supervising enforcement of
the Human Rights Chamber’s decision. One can only regret that,
having reached the Court in 2005, the applicants’ complaints
under the Convention were communicated to the respondent Government
only after the Constitutional Court’s decision of 2009, which
was not called to rule on the reasonableness of the delay in
implementation of the Human Rights Chamber’s decision as
adopted in 2002, but only on its completeness.
In this regard the applicants fail to explain whether they sought at
any time to obtain compensation for non-pecuniary damage arising from
the allegedly unreasonable delay. This raises issues as to the
admissibility of their complaints in respect of the existence of
appropriate domestic remedies capable of affording redress for the
alleged violation of their rights to enforcement of a final decision
without unreasonable delay. I am not convinced that the authorities
were given a chance to react to the complaints of delay and any
ensuing potential necessity to redress it.
However,
since in my opinion the circumstances of the present case disclose no
violation in respect of either non-enforcement of a final decision as
originally submitted, or unreasonable delay in such enforcement, as
subsequently maintained by the applicants, no issue arises as to the
appropriate redress for such violations. Thus, I agree with the
majority’s conclusions under Article
13, albeit for different reasons.
