CASE OF MANDIĆ AND POPOVIĆ
v. BOSNIA AND HERZEGOVINA
(Applications nos. 73944/13 and 78987/13)
19 December 2017
This judgment is final but it may be subject to editorial revision.
In the cases of Mandić and Popović v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 28 November 2017,
Delivers the following judgment, which was adopted on that date:
1. The cases originated in two applications (nos. 73944/13 and 78987/13) 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 three citizens of Bosnia and Herzegovina, Ms Orijana Mandić, Mr Drago Popović and Mr Predrag Popović, respectively on 5 and 22 November 2013.
2. The applicants were represented by Mr I. Sjerikov, a lawyer practicing in Banja Luka. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms B. Skalonjić.
3. On 23 November 2016 both applications were communicated to the Government.
THE CIRCUMSTANCES OF THE CASE
4. The applicant in application no. 73944/13, Ms Orijana Mandić, and the applicants in application no. 78987/13, Mr Drago Popović and Mr Predrag Popović, were born in 1975, 1942 and 1962 respectively and live in Bosnia and Herzegovina.
5. By two judgments of the Banja Luka Court of First Instance of 17 October 2008 and 29 May 2009, which became final on 12 February 2009 and 30 October 2009 respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay the following amounts:
(i) 3,010 convertible marks (BAM) in respect of pecuniary damage together with default interest calculated from 3 August 2000 until final payment, and BAM 1,225 in respect of legal costs, together with default interest calculated from 17 October 2008 until final payment, to the applicant in application no. 73944/13, Ms Orijana Mandić;
(ii) BAM 3,656 in respect of pecuniary damage together with default interest calculated from 15 May 2001 until final payment, and BAM 3,308 in respect of legal costs, together with default interest calculated from 30 October 2009 until final payment, jointly to the applicants in application no. 78987/13, Mr Drago and Predrag Popović.
6. The Banja Luka Court of First Instance issued writs of execution (rješenje o izvršenju) on 9 June 2009 and 31 March 2010.
7. On 30 July 2014 the final judgment in respect of Ms Orijana Mandić was fully enforced in cash. On 14 December 2015 and 16 December 2015 the final judgment in respect of Mr Drago and Predrag Popović was also fully enforced in cash.
I. JOINDER OF THE APPLICATIONS
8. Given their common factual and legal background, the Court decides that these two 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
9. The applicants complained that the delayed enforcement of the final and enforceable domestic judgments, indicated in paragraph 5 above, violated their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
10. The relevant provisions of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention read 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
“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.”
11. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
12. The general principles relating to the non-enforcement or delayed enforcement of final of domestic judgments were set out in Jeličić v. Bosnia and Herzegovina (no. 41183/02, §§ 38-39, ECHR 2006-XII). A delay in the enforcement of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1 (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III, and Teteriny v. Russia, no. 11931/03, § 41, 30 June 2005). 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 and 5 others, § 114, 15 January 2008).
13. The Court has already found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to the one in the present case (see Momić and Others v. Bosnia and Herzegovina [Committee], nos. 1441/07 and 4 Others, 15 January 2013, and Milinković v. Bosnia and Herzegovina [Committee], no. 21175/13, 8 July 2014).
14. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, and to the fact that the final judgments under consideration in the present cases have not been enforced, respectively, for more than five years and one month and for more than five years and eight months, the Court considers that in the instant case there has accordingly been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. 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.”
16. Ms Orijana Mandić claimed 1,000 euros (EUR) in respect of non-pecuniary damage, while Mr Drago and Predrag Popović jointly claimed 1,000 euros (EUR) in respect of non-pecuniary damage. The Government contested these claims. The Court accepts that the applicants have sustained some non-pecuniary loss arising from the breaches of the Convention found in this case which cannot be sufficiently compensated by the finding of a violation alone. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicants the entire amounts claimed.
B. Costs and expenses
17. The applicants did not claim any costs and expenses, and so there is no call to award them any sum on this account.
C. Default interest
18. 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 Ms Orijana Mandić, Mr Drago Popović and Mr Predrag Popović;
(a) that the respondent State is to pay, within three months, EUR 1,000 (one thousand euros) per application, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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.
Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Carlo
Deputy Registrar President
. The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.