Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia”

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 157

November 2012

Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” - 60642/08

Judgment 6.11.2012 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Inability to recover “old” foreign-currency savings following dissolution of former SFRY: violation

Article 46

Pilot judgment

General measures

Slovenia and Serbia required to take measures to enable applicants and all others in their position to recover “old” foreign-currency savings

[This case was referred to the Grand Chamber on 18 March 2013]

Facts – The applicants are citizens of Bosnia and Herzegovina. Until 1989-90, the former Socialist Federal Republic of Yugoslavia (SFRY) made it attractive for its citizens to deposit foreign currency with its banks by high interest rates and a State guarantee in the event of bankruptcy or “manifest insolvency”. Depositors were also entitled to withdraw their savings with accrued interest at any time. Ms Ališić and Mr Sadžak deposited foreign currency at what was then the Ljubljanska Banka Sarajevo and Mr Šahdanović at the Tuzla branch of Investbanka. Following reforms in 1989-90, Ljubljanska Banka Sarajevo became a branch of Ljubljanska Banka Ljubljana, which took over the former’s rights, assets and liabilities. Investbanka became an independent bank with headquarters in Serbia and branches, including the Tuzla branch, in Bosnia and Herzegovina. During this period, the convertibility of the dinar and very favourable exchange rates led to massive withdrawals of foreign currency from commercial banks which prompted the SFRY to take emergency measures to restrict such withdrawals. After the break-up of the SFRY in 1991-92, the “old” foreign-currency deposits remained frozen in the successor States, who however agreed to repay them to domestic banks. In Bosnia and Herzegovina, the Constitutional Court examined numerous individual complaints concerning failures to repay “old” foreign-currency savings at the domestic branches of Ljubljanska Banka Ljubljana and Investbanka. The Constitutional Court found no liability on the part of Bosnia and Herzegovina or its Entities and instead ordered the State to help the clients of those branches to recover their savings from Slovenia and Serbia respectively. In the framework of the negotiations for the Agreement on Succession Issues, negotiations regarding the distribution of the SFRY’s guarantees of “old” foreign-currency savings were held in 2001 and 2002. As the successor States could not reach an agreement, however, in 2002 the Bank for International Settlements (“the BIS”) informed them that it would have no further involvement in the matter. The applicants complained that they had been unable to withdraw their foreign-currency savings.

Law – Article 1 of Protocol No. 1: As regards the period before the dissolution of the SFRY, the State guarantee for the “old” foreign-currency could only be activated at the request of a bank and liability had not therefore shifted from the banks to the SFRY. Consequently, Ljubljanska Banka Ljubljana, based in Slovenia, and Investbanka, based in Serbia, had remained liable for “old” foreign-currency savings in their branches, irrespective of their location, until the dissolution of the SFRY.

As regards the period after dissolution, the Slovenian Government had nationalised Ljubljanska Banka Ljubljana and transferred most of its assets to a new bank, while at the same time confirming that the old Ljubljanska Banka remained liable for “old” foreign-currency savings in its branches in the other successor States. Indeed Slovenia had become the sole shareholder of the old Ljubljanska Banka, which was administered by a Government agency. In addition, Slovenia was to a large extent responsible for the bank’s inability to service its debts (as it had transferred most of its assets to another bank) and most of the funds of the Sarajevo branch of Ljubljanska Banka Ljubljana had in all probability ended up in Slovenia.

As to Investbanka, it had remained liable for “old” foreign-currency savings at its branches in the other successor States until January 2002, when a Serbian court had made a bankruptcy order against that bank and the State guarantee of “old” foreign-currency savings in the bank and its branches had been activated. Moreover, Investbanka was either entirely or to a large extent socially owned. The Court had held in comparable cases against Serbia that the State was liable for debts of socially-owned companies as they were closely controlled by a Government agency. Furthermore, most of the funds of Investbanka’s Tuzla branch had in all likelihood ended up in Serbia.

Therefore, as regards the period after the dissolution of the SFRY, there had been sufficient grounds to deem Slovenia liable for the bank’s debts to Ms Ališić and Mr Sadžak, and Serbia liable for the bank’s debt to Mr Šahdanović as it was clear that Slovenia and Serbia respectively controlled those banks.

As to the applicants’ inability to freely dispose of their “old” foreign-currency savings since 1991-92, the explanation of the Serbian and Slovenian Governments for the delay essentially concerned their duty to negotiate that question in good faith with other the successor States, as required by international law. Any unilateral solution would, in their view, have been contrary to that duty. However, the duty to negotiate did not prevent the successor States from adopting interim measures to protect the savers’ interests. The Croatian Government had repaid a large part of its citizens’ “old” foreign-currency savings in Ljubljanska Banka Ljubljana’s Zagreb branch and the Macedonian Government had repaid the total amount of “old” foreign currency savings in the Skopje branch of that bank. At the same time, those two Governments had never abandoned their position that the Slovenian Government should eventually be held liable and continued to claim compensation at the inter-State level (notably, within the context of the succession negotiations). Although certain delays could be justified in exceptional circumstances, the applicants’ continued inability to freely dispose of their savings despite the collapse of the BIS negotiations in 2002 and the lack of any meaningful negotiations concerning that issue thereafter had been contrary to Article 1 of Protocol No. 1.

Conclusion: violation by Slovenia with regard to Ms Ališić and Mr Sadžak (six votes to one); violation by Serbia with regard to Mr Šahdanović (unanimously); no violation as regards the other respondent States (unanimously).

Article 13: Concerning the Sarajevo branch of the old Ljubljanska banka, none of the remedies available to the applicants in Slovenia could have provided sufficient redress or offered reasonable prospects of success. The provision limiting the State’s liability to “old” foreign currency savings in the old Ljubljanska banka was not subject to review by the Constitutional Court. As to the possibility of a civil action in the Croatian courts, the Slovenian Government had not given any example of a successful outcome for a Sarajevo branch saver there. Turning to the Tuzla branch of Investbanka, the Court observed that although hundreds of clients of Bosnian-Herzegovinian branches of Investbanka had lodged claims with the competent bankruptcy court in Serbia, none of them had so far been successful. Moreover, the Serbian Government had failed to show that any of the judgments obtained in the Serbian courts ordering the banks to pay their “old” foreign-currency savings had in fact been enforced. The applicants had thus had no effective remedy at their disposal in Slovenia or Serbia for their complaint under Article 1 of Protocol No. 1.

Article 46: The Court considered it appropriate to apply the pilot-judgment procedure, as there were more than 1,650 similar applications, concerning over 8,000 applicants, pending before it. Considering the systemic situation identified, general measures were necessary at the national level: notably, Slovenia and Serbia were required to take all necessary measures within six months from the date the Court’s judgment became final to enable the applicants and all others in their position to be paid back their “old” foreign-currency savings under the same conditions as depositors with such savings in domestic branches of Slovenian and Serbian banks. Although it was not necessary to order that adequate redress be awarded to all persons affected by past delays, if either Serbia or Slovenia failed to apply the general measures indicated by the Court, it could reconsider that issue in an appropriate future case against the State in question. Serbia and Slovenia could only exclude from their repayment schemes persons who had been paid their entire “old” foreign currency savings by other successor States on humanitarian or other grounds. The Court adjourned the examination of all similar cases for six months from the date on which its judgment became final without prejudice to its power at any moment to declare inadmissible any such case or to strike it out of its list.

Article 41: Serbia was to pay Mr Šahdanović EUR 4,000 and Slovenia the same amount to Ms Ališić and Mr Sadžak in respect of non-pecuniary damage.

(See also: Kovačić and Others v. Slovenia [GC], 44574/98, 45133/98 and 48316/99, 3 October 2008, Information Note 112); Suljagić v. Bosnia and Herzegovina, 27912/02, 3 November 2009, Information Note 124)

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