European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF MIŠKOVIĆ v. BOSNIA AND HERZEGOVINA

 

(Application no. 7194/12)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

 

8 July 2014

 

 

 

 

 

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

 




In the case of Mišković 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 17 June 2014,

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

PROCEDURE

1.  The case originated in an application (no. 7194/12) 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 Radmila Mišković (“the applicant”), on 24 December 2011.

2.  The applicant was represented by Mr Đ. Marić, a lawyer practising in Banja Luka. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

3.   The case is, like Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009 and Runić and Others v. Bosnia and Herzegovina, nos. 28735/06 et al., 5 November 2011, about the non-enforcement of a final and enforceable domestic judgment awarding war damages to the applicant.

4.  On 14 March 2013 the application was communicated to the Government.

5.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant lives in Bosnia and Herzegovina.

7.  By a judgment of the Prijedor Court of First Instance of 24 November 2000 which became final on 12 January 2001, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, 7,000 convertible marks (BAM)[1] in respect of non-pecuniary damage and BAM 600 in respect of pecuniary damage together with default interest at the statutory rate to the applicant.

8.  The Banja Luka Court of First Instance issued a writ of execution (rješenje o izvršenju) on 24 August 2001.

9.  The applicant complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 20 December 2005 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The applicant did not claim compensation, but even if she had done so, her claim would most likely have 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; AP 224/08 of 8 December 2010, §37).

10.  After the extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), on 25 April 2012 the applicant informed the authorities that she agreed to be paid the principal debt and default interest in bonds. Government bonds were then issued to the applicant on 31 May 2012. On 17 September 2012 the applicant sold all of her bonds on the Stock Exchange.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

11.  The relevant domestic law and practice were outlined in Čolić and Others (cited above, § 10-12) and Runić and Others (cited above, § 11).

THE LAW

12.  The applicant complained of the non-enforcement of the judgment indicated in paragraph 7 above. She 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 or property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

A.  Admissibility

13.  The Government submitted that the applicant could no longer claim to be victim within meaning of Article 34 of the Convention after the domestic judgment in question had been enforced in government bonds. The applicant disagreed.

14.  The Court recalls that in its leading judgment concerning this issue (Čolić and Others, cited above) it found a breach of Article 6 and of Article 1 of Protocol No. 1 regardless of the fact that those applicants had also been offered government bonds in lieu of cash as a means of enforcement. The respondent State enforced the judgments under consideration in that case in cash and undertook to so enforce a number of other similar judgments (see Momić and Others v. Bosnia and Herzegovina (dec.), no. 28730/06, 17 May 2011). However, it should be emphasised that none of the applicants in those cases, unlike the present applicant, had accepted government bonds. The present case must therefore be distinguished from Čolić and Others jurisprudence. Given further that the applicant had already sold her bonds on the Stock Exchange (see paragraph 10 above), the Court considers the impugned domestic judgments to have been enforced.

15.  That being said, 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 applicant was not able to obtain any compensation in respect of the delayed enforcement of the judgment (see paragraph 9 above). Therefore, she may still claim to be victim within the meaning of Article 34 of the Convention in relation to the period during which the judgment remained unenforced (see Dubenko  v. Ukraine, no. 74221/01, § 36, 11 January 2005). The Court thus rejects the Government’s objection.

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

B.  Merits

16.  The Court notes that the present case is practically identical to Runić and Others (cited above) in which the Court found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1. Considering the length of the period of non-enforcement of the judgments in issue (almost 10 years after the date of ratification of the Convention by Bosnia and Herzegovina), and having examined all relevant circumstances, the Court does not see any reason to depart from its previous case-law.

There has accordingly been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  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

18.  The applicant claimed 2,000 euros (EUR) in respect of non-pecuniary damage. The Government submitted that the claim was unsubstantiated. 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 the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

B.  Costs and expenses

19.  The applicant also claimed EUR 500 for the costs and expenses incurred before the domestic courts and before the Court. The Government considered the amount 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).

20.  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, the applicant’s costs and expenses should be met in full.

C.  Default interest

21.  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.  Declares the application admissible;

 

2.  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 a final domestic judgment;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, 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, in respect of non-pecuniary damage; and

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 8 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                      George Nicolaou
Deputy Registrar                                                                       President

 




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[1] The convertible mark (BAM) uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583