CASE OF ĆOSIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

FOURTH SECTION

CASE OF ĆOSIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

(Applications nos. 31864/06, 16570/07, 17780/10, 17824/10, 31717/10, 47332/10 and 17291/11)

JUDGMENT

STRASBOURG

22 January 2013

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

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

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

Päivi Hirvelä, President,
Ledi Bianku,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 18 December 2012,

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

PROCEDURE

1. The case originated in seven applications (nos. 31864/06, 16570/07, 17780/10, 17824/10, 31717/10, 47332/10 and 17291/11) 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 23 citizens of Bosnia and Herzegovina, Mr Blagoja Ćosić, Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Mr Slavoljub Đorđević, Mr Goran Paripović, Ms Gordana Paripović, Ms Anđa Paripović, Ms Mara Paripović, Mr Zoran Paripović, Ms Jela Voćkić, Mr Ilija Voćkić, Ms Stevanija Simić, Mr Dušan Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms Slađana Migerl, Ms Mara Lazić, Ms Branka Lazić-Marković, Mr Milić Lazić, Ms Mara Đilas, Mr Zoran Đilas and Mr Željko Đilas, (“the applicants”), between 19 July 2006 and 21 January 2011.

2. Ms Borka Vođević and Mr Slavoljub Đorđević were represented by Mr Goran Marić, a lawyer practising in Banja Luka. The Paripovićs, the Voćkićs, the Simićs, Ms Slađana Migerl, the Lazićs and Ms Branka Lazić-Marković were represented by Mr Đorđe Marić, a lawyer practising in Banja Luka. The Đilas were represented by Ms Radmila Plavšić and Mr Ranko Vulić, lawyers practising in Banja Luka. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

3. This 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., 15 November 2011, about the non-enforcement of final and enforceable domestic judgments awarding war damages to the applicants.

4. On 30 August 2010 (applications nos. 31864/06, 16570/07 and 47332/10) and on 4 July 2011 (applications nos. 17780/10, 17824/10, 31717/10 and 17291/11) 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

5. The applicants live in Bosnia and Herzegovina.

6. By seven judgments of different courts of first instance of 18 May 2000, 29 February 2000, 17 December 1999, 24 March 2000, 5 April 2001, 25 April 2000 and 14 November 2001, which became final on 15 June 2000, 13 October 2000, 16 July 2002, 26 July 2001, 25 May 2001, 13 July 2001 and 9 September 2004, respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, the following amounts in convertible marks (BAM)[1] in respect of war damage together with default interest at the statutory rate:

(i) BAM 15,000 in respect of non-pecuniary damage and BAM 1,776 in respect of pecuniary damage to the Ćosićs and Ms Sanja Alaša;

(ii) BAM 16,000 in respect of non-pecuniary damage and BAM 2,000 in respect of pecuniary damage to Ms Borka Vođević and Mr Slavoljub Đorđević;

(iii) BAM 35,000 in respect of non-pecuniary damage, BAM 2,000 in respect of pecuniary damage and BAM 1,860 in respect of legal costs to the Paripovićs;

(iv) BAM 10,000 in respect of non-pecuniary damage, BAM 1,500 in respect of pecuniary damage and BAM 403 in respect of legal costs to the Voćkićs;

(v) BAM 25,000 in respect of non-pecuniary damage, BAM 1,500 in respect of pecuniary damage and BAM 3,360 in respect of legal costs to the Simićs and Ms Slađana Migerl;

(vi) BAM 14,000 in respect of non-pecuniary damage, BAM 1,500 in respect of pecuniary damage and BAM 1,400 in respect of legal costs to the Lazićs and Ms Branka Lazić-Marković; and

(vii) BAM 26,000 in respect of non-pecuniary damage, BAM 2,000 in respect of pecuniary damage and BAM 2,009 in respect of legal costs to the Đilas.

7. The Banja Luka Court of First Instance issued writs of execution (rješenje o izvršenju) on 20 December 2001, 8 November 2000, 23 April 2003, 16 November 2001, 24 August 2001, 2 November 2001 and 21 December 2006, respectively.

8. The applicants 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 in the cases of the Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Mr Slavoljub Đorđević, the Paripovićs, the Voćkićs, the Simićs, Ms Slađana Migerl, the Lazićs and Ms Branka Lazić-Marković. 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 15 April 2009 the Constitutional Court dismissed the case of the Đilas due to the change of circumstances following amendments to the Domestic Debt Act 2004.

9. 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), between 26 April 2007 and 13 May 2011 some of the applicants informed the authorities that they agreed to be paid only the legal costs in cash and the principal debt and default interest in bonds. Government bonds were then issued on the following dates to the following applicants:

(i) on 15 December 2008 to Mr Blagoja Ćosić (the application was lodged on19 July 2006); Mr Goran Paripović, Ms Gordana Paripović, Ms Mara Paripović, Mr Zoran Paripović (the application was lodged on 19 February 2010); Ms Jela Voćkić (the application was lodged on 19 February 2010); Ms Stevanija Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms Slađana Migerl (the application was lodged on 8 March 2010); and Mr Milić Lazić (the application was lodged on 13 February 2009);

(ii) on 15 June 2010 to Mr Slavoljub Đorđević (the application was lodged on 10 March 2007); and

(iii) on 9 June 2011 to Ms Mara Đilas (the application was lodged on 21 January 2011).

10. Mr Slavoljub Đorđević and Ms Mara Đilas have already sold all of their bonds on the Stock Exchange.

11. Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas were not issued government bonds.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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

13. On 13 January 2012 the Domestic Debt Act 2012[2] entered into force, thereby repealing the Domestic Debt Act 2004[3]. As regards the payment of war damage, it envisages the same solution as the old Act, with the change in the maturity of government bonds which is now 13 years instead of 14 years. The new Act is, however, irrelevant for the present case: as regards those applicants who were issued government bonds, the applicable provisions are those from the Domestic Debt Act 2004, which was in force at the time the bonds were issued; and the other applicants did not accept issuance of bonds in lieu of cash as means of enforcement, therefore, the new Act is also irrelevant.

THE LAW

14. The applicants complained of the non-enforcement of the judgments indicated in paragraph 6 above. The case was examined by the Court under Article 6 of the Convention and Article 1 of Protocol No. 1.

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

15. Given their common factual and legal background, the Court decides that these seven 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. As regards Ms Anđa Paripović and Mr Ilija Voćkić

16. In their observations of 9 December 2010 the Government informed the Court that Ms Anđa Paripović (application no. 17780/10) had died on 28 January 2001 and Mr Ilija Voćkić (application no. 17824/10) had died in February 2007. The information was sent to the applicants’ representative who did not dispute it. The Court notes that the applicants’ deaths occurred before the applications in their names were brought before it. The Court reiterates that a deceased person cannot lodge an application, even through a representative (see Kaya and Polat v. Turkey (dec.), nos. 2794/05 and 40345/05, 21 October 2008). In these circumstances, the Court concludes that the applications nos. 17780/10 and 17824/10, in so far as they were brought on behalf of Ms Anđa Paripović and Mr Ilija Voćkić, are incompatible ratione personae with the provisions of the Convention and its Protocols and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. As regards Mr Dušan Simić and Ms Mara Lazić

17. In their observations of 9 December 2010 and 12 December 2011, the Government informed the Court that Mr Dušan Simić (application no. 3171/10) and Ms Mara Lazić (application no. 47332/10) had died on unspecified dates. That information was sent to the applicants’ representative on 16 February 2011 and 30 January 2012. He did not dispute that fact nor did he provide exact date of deaths. Moreover, the Court did not receive any statement from the applicants’ potential heirs or close family members expressing the wish to pursue their cases. In these circumstances, the Court concludes that it is no longer justified to continue the examination of the applications nos. 3171/10 and 47332/10 in so far as they were brought by Mr Dušan Simić and Ms Mara Lazić within the meaning of Article 37 § 1 (c) of the Convention. Furthermore, the Court finds no reasons of a general nature, as defined in Article 37 § 1 in fine, which would require the examination of these complaints by virtue of that Article (contrast Karner v. Austria, no. 40016/98, §§ 20-28, ECHR 2003‑IX). It therefore decides to strike the applications nos. 3171/10 and 47332/10 out of its list of cases in so far as they were brought by Mr Dušan Simić and Ms Mara Lazić (see Erol Direkçi and Ergül Direkçi v. Turkey (dec.), no. 47826/99, 31 March 2005).

3. As regards Ms Stevanija Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms Slađana Migerl; Ms Jela Voćkić; and Mr Goran Paripović, Ms Gordana Paripović, Ms Mara Paripović and Mr Zoran Paripović

18. The Government argued that the present applications were submitted outside of the six-month time-limit. Alternatively, the Government submitted that, in view of the full enforcement of domestic judgements in question, the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention.

19. The applicants disagreed.

20. The Court reiterates that the purpose of the six-month rule is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V). Where the alleged violation constitutes a continuing situation against which no domestic remedy is available, such as the non-enforcement of final and enforceable domestic judgments in the present cases, the six-month period starts to run from the end of the continuing situation (see Arežina v. Bosnia and Herzegovina (dec.), nos. 66816/09 et al., 3 July 2012).

Furthermore, in Runić and Others (cited above, § 15, in which the applicants, like in the present case, had accepted government bonds in lieu of cash as means of enforcement) the Court held that domestic judgments ordering payment of war damage had been fully enforced by the issuance of government’s bonds. Therefore, having in mind the dates of introduction of applications nos. 17780/10, 17824/10 and 31717/10, and the dates of enforcement of domestic judgments in question (as indicated above) it is clear that they have been submitted outside of the six-month time-limit.

In the light of the foregoing, the Court considers that Ms Stevanija Simić, Ms Mirjana Simić, Ms Dragana Simić, Ms Slađana Migerl (application no. 31717/10); Ms Jela Voćkić (application no. 17824/10); and Mr Goran Paripović, Ms Gordana Paripović, Ms Mara Paripović and Mr Zoran Paripović (application no. 17780/10) have failed to comply with the six-month rule. The applications nos. 17780/10, 17824/10 and 31717/10, in so far as they were submitted by these applicants, must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

4. As regards Mr Blagoja Ćosić, Mr Slavoljub Đorđević, Mr Milić Lazić and Ms Mara Đilas

21. The Government submitted that these applicants could no longer claim to be victims within the meaning of Article 34 of the Convention after the domestic judgments in question had been enforced partly in cash (the legal costs) and partly in government bonds (the principal debt and the associated default interest). The applicants disagreed.

22. 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 applicants, had accepted government bonds. The present case must therefore be distinguished from the Čolić and Others jurisprudence. Given further that some of the present applicants have already sold their bonds on the Stock Exchange (paragraph 10 above) and that the legal costs awarded to them have already been paid in cash, the Court considers the impugned domestic judgments to have been enforced.

23. 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 applicants were not able to obtain any compensation in respect of the delayed enforcement of the judgments (paragraph 8 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 thus rejects the Government’s objection.

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.

5. As regards Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas

24. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. As regards Mr Blagoja Ćosić, Mr Slavoljub Đorđević, Mr Milić Lazić and Ms Mara Đilas

25. The Court notes that the present case, in respect of these applicants, is practically identical to Runić and Others (cited above) in which the Court found a violation of Article 6 of the Convention as well as a violation of Article 1 of Protocol No. 1 to the Convention. Considering the length of the period of non-enforcement of the judgments in issue (between more than six and eight 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 in respect of Mr Blagoja Ćosić, Mr Slavoljub Đorđević, Mr Milić Lazić and Ms Mara Đilas.

2. As regards Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas

26. The Court notes that the present case, in respect of these applicants, is identical to Čolić and Others (cited above), in which the Court found violation of Article 6 and Article 1 of Protocol No. 1, due to the non-enforcement of final and enforceable domestic judgments awarding war damages to the applicants.

The Court does not see any reason to depart from that jurisprudence. Since the final judgments in favour of these applicants have not yet been enforced and the situation has already lasted between ten and eight years (since the ratification of the Convention by the respondent State), the Court concludes, for the same reasons as set out in Čolić and Others (cited above, § 15), that there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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

28. In respect of pecuniary damage, Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas sought the payment of the outstanding judgment debt. The Court reiterates that the most appropriate form of redress in non-enforcement cases is indeed to ensure full enforcement of the domestic judgments in question (see Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR 2006‑XII, and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04 et al., § 31, 18 December 2007). This principle equally applies to the present case.

29. The Ćosićs claimed 20,000 euros (EUR) in respect of non-pecuniary damage and the Đilas claimed EUR 5,000 in respect of non-pecuniary damage. The Government considered the amount claimed 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, and having regard to the amounts awarded in Čolić and Others (cited above, § 21), it awards EUR 1,500 per application to the Ćosićs (application no. 31864/06) and the Đilas (application no. 17291/11), in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

30. The Đilas also claimed BAM 7,020 (approximately EUR 3,500) for the costs and expenses incurred before the domestic courts and before the Court. The Government considered the amount claimed to be excessive.

31. 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). The Court notes that the applicants’ 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 the Đilas EUR 1,800 in total under this head, plus any tax that may be chargeable.

C. Default interest

32. 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. Decides to strike the applications nos. 3171/10 and 47332/10 out of its list of cases in respect of Mr Dušan Simić and Ms Mara Lazić;

3. Declares the applications nos. 17780/10, 17824/10 and 31717/10 inadmissible;

4. Declares the application no. 47332/10 in respect of Ms Branka Lazić-Marković and Mr Milić Lazić, and the other three applications admissible;

5. 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 Blagoja Ćosić, Mr Slavoljub Đorđević, Mr Milić Lazić and Ms Mara Đilas;

6. 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 Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas;

7. Holds

(a) that the respondent State is to secure, within three months, enforcement of the domestic judgments in respect of Mr Dado Ćosić, Ms Sanja Alaša, Ms Borka Vođević, Ms Branka Lazić-Marković, Mr Zoran Đilas and Mr Željko Đilas;

(b) and in addition, to pay, within the same period, 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) per application to the Ćosićs and the Đilas, plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(ii) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, to the Đilas 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;

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

Done in English, and notified in writing on 22 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident

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

[2]1. Zakon o unutrašnjem dugu Republike Srpske, Official Gazette  of the Republika Srpska no. 1/12.

[3]2. Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, Official Gazette of the Republika Srpska nos. 63/04, 47/06, 68/07, 17/08, 64/08 and 34/09.

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