European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF MOMIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

 

(Applications nos. 1441/07, 32382/07, 8159/08, 37282/08 and 19511/10)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

15 January 2013

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Momić and Others v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          George Nicolaou, President,
          Zdravka Kalaydjieva,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 11 December 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in five applications (nos. 1441/07, 32382/07, 8159/08, 37282/08 and 19511/10) 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 five citizens of Bosnia and Herzegovina, Mr Milan Momić, Mr Živan Anđić, Ms Ismihana Kalem, Mr Hašim Delić and Mr Marinko Tomčić (“the applicants”), between 21 December 2006 and 24 March 2010.




  Mr Milan Momić was represented by Mr S. Marić, a lawyer practising in Banja Luka. Ms Ismihana Kalem was represented by Mr G. Marić, a lawyer practising in Banja Luka. Mr Hašim Delić was represented by Mr S. Bilić, a lawyer practising in Derventa. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.




  On 30 August 2010 (applications nos. 1441/07, 32382/07, 8159/08, and 37282/08) and on 4 July 2011 (application no. 19511/10) the President of the Fourth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




  The applicants were born in 1949, 1951, 1961, 1933 and 1977, respectively and live in Bosnia and Herzegovina.




  By five judgments of different courts of first instance of 25 April 2002, 23 September 2005, 7 October 2002, 8 September 2003 and 24 December 2002, which became final respectively on 9 March 2005, 23 September 2005, 12 July 2005, 6 April 2005 and 24 January 2006, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, the following amounts in convertible marks (BAM)[1]:

(i) BAM 26,994.86 in respect of capitalised annuity to Mr Milan Momić;

  (ii) BAM 87,479.19 in respect of pecuniary damage for lost income to Mr Živan Anđić;

  (iii) BAM 2,235 in respect of pecuniary damage together with default interest at the statutory rate calculated from the start of the proceedings until the final payment and BAM 4,586 in respect of legal costs to Ms Ismihana Kalem;

  (iv) BAM 7,525 in respect of pecuniary damage together with default interest at the statutory rate calculated from the start of the proceedings until the final payment and BAM 1,400 in respect of legal costs to Mr Hašim Delić; and

  (v) BAM 11,500 in resepct of non-pecuniary damage together with default interest at the statutory rate calculated from the start of the proceedings until the final payment and BAM 1,425.90 in respect of legal costs to  Mr Marinko Tomčić.




  The Banja Luka Court of First Instance issued writs of execution (rješenje o izvršenju) on 4 July 2005, 12 December 2005, 17 October 2005, 3 October 2005 and 27 April 2006.




  The applicants complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 12 April 2006, 14 March 2006, 9 May 2006 and 13 December 2007 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in the cases of Mr Milan Momić, Mr Živan Anđić, Ms Ismihana Kalem and Mr Hašim Delić. The applicants did not claim compensation, but even if they had done so, their claim would have most likely been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, § 195; AP 1211/06 of 13 December 2007, § 79; and AP 244/08 of 8 December 2010, § 37). On 24 June 2009 the Constitutional Court dismissed the case of Mr Marinko Tomčić due to the change of circumstances following amendments to the Domestic Debt Act 2004.




.  On 22 December 2008 Mr MarinkoTomčić was issued government bonds in lieu of cash in respect of the principal debt and associated default interest accrued until 23 July 2004 in accordance with the relevant provisions of the Domestic Debt Act 2004 (see “Relevant domestic law and practice” below).




  On 22 December 2011 the final judgment in respect of Mr Hašim Delić was fully enforced in cash and in March 2012 the final judgments in favour of Mr Milan Momić and Mr Živan Anđić were also fully enforced in cash.




  The final judgment in favour of Ms Ismihana Kalem remains unenforced to this day.

II. RELEVANT DOMESTIC LAW AND PRACTICE




  The judgments under consideration in the present case fall under a special legal regime of the Republika Srpska’s general obligations. Their enforcement was suspended since 29 December 2003 pursuant to the Temporary Postponement of Enforcement Act 2003[2] and Domestic Debt Act 2004[3] until 7 April 2009 (paragraph 13 below). In accordance with the Domestic Debt Act 2004 the general obligations cover, inter alia, a debt arising from the final and enforceable domestic judgments given in respect of civil actions against the Republika Srpska brought in the period between 20 June 1996 and 31 December 2002, in the total amount of BAM 25,000,000, excluding the final judgments concerning war damage and old foreign-currency savings. Under an initial settlement plant envisaged by that Act, the principal debt and associated default interest, accrued until 23 July 2004 when it entered into force, were to be paid in government bonds. They were to be amortised in ten annual instalments and to earn interest at an annual rate of 1.5%.




  While the Constitutional Court initially considered this solution to be incompatible with Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention (see decision AP 774/04 of 20 December 2005), it decided that the matter had been resolved following a decision of the Constitutional Court of the Republika Srpska of 15 January 2009 which declared certain provisions of the Domestic Debt Act 2004 unconstitutional (see decision AP 37/08 of 24 June 2009).




  On 7 April 2009 the Domestic Act 2004 was changed in that the Republika Srpskaʼs debt arising from the final and enforceable judgments representing general obligations would be paid in cash together with the associated default interest accrued until the full enforcement.

In accordance with the current settlement plan[4], the judgments will be enforced within five years starting in 2010, in order in which they were received at the Ministry of Finance of the Republika Srpska and after the submission of the necessary documents by the creditors. In respect of the creditors who were issued government bonds, the difference in accrued default interest is to be compensated. It is possible to conclude an agreement with the Ministry of Finance and thus obtain a prior execution of the judgement if one accepts payment in annual instalments or is willing to forfeit the amount due in respect of default interest. It is also possible to obtain the enforcement by concluding a contract about the settlement of mutual claims between the Ministry of Finance and a creditor.

THE LAW




  The applicants complained of the non-enforcement of the final domestic judgments indicated in paragraph 5 above. 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.  JOINDER OF THE APPLICATIONS




  Given their common factual and legal background, the Court decides that these five applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

A.  Admissibility

1.  The submissions of the parties




  The Government maintained that the present applications were inadmissible because the domestic judgments under consideration have already been enforced or will be enforced shortly pursuant to the relevant settlement scheme.




.  The applicants diagreed.

2.  The Court’s assessment

(a)  As regards Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić

 




.  The Court notes that the judgments in favour of Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić have recently been fully enforced (paragraph 9 above).




  In view of that, it is necessary to examine whether those applicants could still claim to be victims within the meaning of Article 34 of the Convention. The Court has always held that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his victim status unless the national authorities have acknowledged the alleged breach and afforded appropriate and sufficient redress (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 180 and 193, ECHR 2006-V). One of the features of such redress is the amount awarded by the national authorities (see Kudić v. Bosnia and Herzegovina, no. 28971/05, § 17, 9 December 2008). While it is true that the national authorities expressly acknowledged the breach alleged in the present case, the applicants were not able to obtain any compensation in respect of the delayed enforcement of the judgments (paragraph 7 above). Therefore, they may still claim to be victims within the meaning of Article 34 of the Convention in relation to the period during which the judgments remained unenforced (see Dubenko v. Ukraine, no. 74221/01, § 36, 11 January 2005).




  The Court further notes that the applications are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It accordingly declares them admissible.

(b)  As regards Ms Ismihana Kalem and Mr Marinko Tomčić




  The Court notes that the judgments in favour of these applicants have not yet been fully enforced. As these applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, they must be declared admissible.

B.  Merits

1.  As regards Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić




  The applicants essentially maintained that the principle of the rule of law, which Bosnia and Herzegovina had undertook to respect when it ratified the Convention, required that every judgment be enforced without delay.




.  The Government argued that some delays in the enforcement of the domestic judgments in question were necessary given the number of similar domestic judgments and the size of the Republika Srpska’s public debt.




.  The general principles relating to the non-enforcement of domestic judgments were set out in Jeličić v. Bosnia and Herzegovina, no. 41183/02, §§ 38-39, ECHR 2006-XII. Notably, the Court has held that it is not open to authorities to cite lack of funds as an excuse for not honouring a judgment debt (see also R. Kačapor and Others v. Serbia, nos. 2269/06 et al., § 114, 15 January 2008).




.  The Court notes that the domestic judgments under consideration in the present case remained unenforced between six and almost eight years. Such delays were in the past considered to be excessive (Jeličić, cited above, § 40; Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, § 15; and Runić and Others v. Bosnia and Herzegovina, nos. 28735/06 et al., 15 November 2011, § 21). The Court does not see any reason to depart from that jurisprudence.




.  Accordingly, there has been a breach of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention in respect of Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić.

2.  As regards Ms Ismihana Kalem and Mr Marinko Tomčić




   While the applicants invited the Court to apply the Čolić and Others jurisprudence to their case, the Government sought to distinguish the two cases. They maintained that the final judgments in the present case did not fall into the category of war damage, but instead represented general obligations of the Republika Srpska which were paid in cash in accordance with the relevant settlement plan. The Government further submitted that due to the size of the Republika Srpska’s public debt, postponement in the enforcement was justified as otherwise macroeconomic stability and fiscal sustainability would be jeopardised.




  The Court notes that the present case is similar - although not identical - to Čolić and Others (cited above). The enforcement of the final judgments under consideration in the present case was also suspended and a similar repayment scheme was envisaged by the Domestic Debt Act 2004 for both categories of judgments: they were to be enforced through the issuance of government bonds. It was only on 7 April 2009, following a judgment of the Constitutional Court of the Republika Srpska, that the Domestic Debt Act 2004 was amended in that the enforcement of the judgments representing general obligations was allowed in cash (paragraph 13 above). Nevertheless, the final and enforceable judgments in favour of Ms Ismihana Kalem and Mr Marinko Tomčić have not yet been fully enforced.

The Court therefore does not see any reason to depart from the Čolić and Others jurisprudence. Since the final judgments under consideration in the present case have not yet been fully enforced and the situation has already lasted between six and almost eight years, there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of Ms Ismihana Kalem and Mr Marinko Tomčić.

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




   Mr Milan Momić claimed the payment of outstanding judgment debt in respect of pecuniary damage and approximately 25,000 euros (EUR) in respect of non-pecuniary damage. The Government considered the claims unsubstantiated. The Court notes that in the meantime the final judgment in favour of this applicant has been fully enforced. The Court, therefore, rejects the claim for pecuniary damage. As regards non-pecuniary damage, the Court considers that the applicant 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, and having regard to the amounts awarded in Čolić and Others (cited above, § 21), it awards Mr Milan Momić EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.




  The other applicants did not claim any damage.

B.  Costs and expenses




  Mr Milan Momić claimed BAM 5,076.10 (approximately EUR 2,595) for the costs and expenses incurred before the domestic courts and before the Court. Mr Hašim Delić submitted his claim for costs and expenses in the amount of EUR 1,079 outside the time-limit set by the Court. The Court will, nonetheless, examine it as it would appear that the applicant’s delay was due to a late delivery of the Court’s letter. The Government considered the amounts claimed 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 are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).




  As regards Mr Milan Momić, the Court notes that the applicant’s representative submitted an initial application and, at the request of the Court, written pleadings in one of the official languages of Bosnia and Herzegovina. Having regard to the tariff fixed by the local bar associations, which the Court considers reasonable in the circumstances of this case, the applicant is entitled to approximately EUR 1,700. In addition, the Court awards the sum of EUR 100 for secretarial and other expenses. The Court therefore awards Mr Milan Momić EUR 1,800 in total under this head, plus any tax that may be chargeable.

As regards Mr Hašim Delić, the Court notes that the applicant’s representative submitted an initial application and, at the request of the Court, written pleadings in one of the official languages of Bosnia and Herzegovina. Therefore, Mr Hašim Delić’s costs and expenses should be met in full.

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 UNANIMOUSLY

1.  Decides to join the applications;

 

2.   Declares the applications admissible;

 

3.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention due to the delayed enforcement of final domestic judgments in respect of Mr Milan Momić, Mr Živan Anđić and Mr Hašim Delić;

 

4.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention due to the non-enforcement of final domestic judgments in respect of Ms Ismihana Kalem and Mr Marinko Tomčić;

 

5.  Holds

(a)  that the respondent State is to secure, within three months, full enforcement of the domestic judgments in respect of Ms Ismihana Kalem and Mr Marinko Tomčić;

(b)  that the respondent State is to pay, within three months, the following amounts, to be converted into convertible marks at the rate applicable at the date of settlement:

(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, to Mr Milan Momić in respect of non-pecuniary damage;

(ii)  EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, to Mr Milan Momić in respect of costs and expenses; and

(iii)  EUR 1,079 (one thousand seventy nine euros), plus any tax that may be chargeable, to Mr Hašim Delić in respect of costs and expenses.

(c)  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;

 

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                      George Nicolaou
Deputy Registrar                                                                       President




---

1. The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.

[2] Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, Official Gazette of the Republika Srpska (“OG RS”) nos. 110/03 and 63/04.

[3] Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, OG RS nos. 63/04, 47/06, 68/07, 17/08, 64/08 and 34/09.

[4] Odluka o usvajanju Akcionog plana za izmirenje opštih obaveza po pravosnažnim i izvršnim sudskim odlukama, OG RS  no. 93/09.