FOURTH SECTION
CASE OF MILINKOVIĆ v. BOSNIA AND HERZEGOVINA
(Application no. 21175/13)
JUDGMENT
STRASBOURG
8 July 2014
This judgment is final. It may be subject to editorial revision.
In the case of Milinković 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. 21175/13) 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 a citizen of Bosnia and Herzegovina, Mr Dragan Milinković (“the applicant”), on 13 February 2013.
2. The applicant was represented by Ms R. Plavšić, 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 Momić and Others v. Bosnia and Herzegovina, nos. 1441/07 et al., 15 January 2013, about the non-enforcement of a final and enforceable domestic judgment which falls under a special legal regime of the Republika Srpska’s general obligations.
4. On 7 May 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 was born in 1977 and lives in Banja Luka.
7. By a judgment of the Banja Luka Court of First Instance of 23 February 2009 which became final on 11 May 2009, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, 34,000 convertible marks (BAM)[1] in respect of non-pecuniary damage together with default interest at the statutory rate and BAM 4,667 in respect of legal costs 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 29 June 2009.
9. The applicant complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 16 January 2013 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
10. The final judgment in favour of the applicant remains unenforced to this day.
II. RELEVANT DOMESTIC LAW
11. The relevant domestic law and practice were outlined in Momić and Others (cited above, §§ 11-13).
THE LAW
12. The applicant complained of the non-enforcement of the judgement indicated in paragraph 7 above. He 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 Court 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. Accordingly, it must be declared admissible.
B. Merits
14. While the applicant invited the Court to apply the Čolić and Others jurisprudence (see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009) to his case, the Government sought to distinguish between the two cases. They maintained that the final judgment 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.
15. The Court notes that the present case is practically identical to Momić and Others (cited above) in which it found a violation of Article 6 and Article 1 of Protocol No. 1. Since the final judgment under consideration in the present case has not yet been enforced and the situation has already lasted more than five years, 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
16. 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
17. The applicant claimed the payment of judgment debt in respect of pecuniary damage and 5,000 euros (EUR) in respect of non-pecuniary damage. The Government considered the claims unsubstantiated. 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-IX and Pejaković v. Bosnia and Herzegovina, nos. 337/04 et al., §31, 18 December 2007). This principle equally applies to the present case. 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 the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.
B. Costs and expenses
18. The applicant also claimed BAM 2,340 (approximately EUR 1,200) 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).
19. 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 cost and expenses should be met in full.
C. Default interest
20. 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 non-enforcement of a final domestic judgment;
3. Holds
(a) that the respondent State is to secure, within three months, full enforcement of the domestic judgment in the applicant’s favour;
(b) 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 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the applicant, 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;
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 AracıGeorge Nicolaou
Deputy RegistrarPresident
[1] The convertible mark (BAM) uses the same fixed exchange rate to the euro that the German mark has: EUR 1 = BAM 1.95583
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