CASE OF PANORAMA LTD AND MILIČIĆ v. BOSNIA AND HERZEGOVINA

FOURTH SECTION

CASE OF PANORAMA LTD AND MILIČIĆ v. BOSNIA AND HERZEGOVINA

(Applications nos. 69997/10 and 74793/11)

JUDGMENT

STRASBOURG

25 July 2017

FINAL

25/10/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Panorama Ltd and Miličić v. Bosnia and Herzegovina,

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

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Georges Ravarani,
Péter Paczolay, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 4 July 2017,

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

PROCEDURE

1. The case originated in two applications (nos. 69997/10 and 74793/11) 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 Panorama Ltd, a limited liability company with its registered seat in Brčko District (“the applicant company”, or “the first applicant”), and Mr Đuro Miličić, a citizen of Bosnia and Herzegovina, (“the second applicant”), on 23 November 2010 and 18 November 2011, respectively.

2. The applicant company was initially represented by Mr N. Konjić, a lawyer practising in Tuzla. Since 1 March 2016 it has been represented by Mr E. Suljić, a lawyer practising in Sarajevo. The second applicant was represented by Ms S. Redžepović, a lawyer practising in Orašje. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent at the time, Ms Z. Ibrahimović.

3. The applicants complained, in particular, about the non-enforcement of final domestic judgments in their favour, relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

4. On 16 March 2015 the complaints concerning non-enforcement were communicated to the Government and the remainder of the applications were declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The facts concerning the first applicant

1. Civil proceedings

5. On 22 December 1998 the first applicant lodged a compensation claim with the Sarajevo Municipal Court, seeking damages against the Federation of Bosnia and Herzegovina (“the Federation”) for goods seized during the 1992-95 war.

6. On 10 May 2007 the Sarajevo Municipal Court ordered the Federation to pay the first applicant 521,556.20 convertible marks (BAM – approximately 266,370 euros (EUR)) in respect of pecuniary damage, together with default interest at the statutory rate from April 1992, and legal costs, in accordance with the relevant provisions of the Civil Obligations Act of 1978.

7. On 23 January 2009 the Sarajevo Cantonal Court allowed the Federation’s appeal in part and amended the judgment of 10 May 2007 in respect of the part concerning default interest. It ordered that the interest should be calculated from February 1996. The rest of the first-instance judgment was upheld and it became final on the same day.

8. On an unspecified date the Federation lodged an appeal on points of law with the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) against the judgment of 23 January 2009. On 10 June 2010 the Supreme Court dismissed the appeal. It held, in particular, that the Sarajevo Cantonal Court had correctly applied the Civil Obligations Act of 1978 as regards default interest.

2. Enforcement proceedings

9. On 4 March 2009 the Sarajevo Municipal Court issued an enforcement order. The enforcement was to be carried out at the debtor’s expense.

10. On 28 May 2009 the Sarajevo Municipal Court dismissed the debtor’s objection and upheld the enforcement order of 4 March 2009.

11. On 16 March 2010 the debtor’s bank informed the enforcement court that the applicant had received BAM 24,244.78 in respect of legal costs.

12. On 9 December 2011 the applicant received BAM 521,556.20 in respect of the principal debt.

13. On 28 January 2013 the Sarajevo Municipal Court requested information from the bank about the status of the enforcement.

14. On 14 February 2013 the bank informed the Sarajevo Municipal Court that it did not consider that the enforcement order of 4 March 2009 had been fully implemented (because the interest due had not been paid).

3. Proceedings before the Constitutional Court

15. On 17 August 2010 the first applicant lodged an appeal with the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), complaining about the non-enforcement of the final judgment of 10 May 2007.

16. On 7 November and 13 December 2012 the first applicant informed the Constitutional Court that the principal debt had been paid on 9 December 2011 but that the default interest remained unsettled.

17. Invited to submit their comments on the first applicant’s appeal, the Federal Ministry of Finance argued that the War Damage Act of 2001 had declared that war damage constituted a part of public debt to which default interest did not apply. Thus, there was no legal basis for the payment of default interest to the first applicant.

18. On 12 June 2013 the Constitutional Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention on account of the excessive length of the enforcement proceedings. It ordered the Municipal Court to conclude the enforcement proceedings without delay. However, the Constitutional Court did not examine the issue of the amount of default interest.

In so far as relevant to the case before the Court, its reasoning was as follows:

“39. ... from the material in the case file it is evident that the impugned enforcement proceedings were not (i) completed or (ii) terminated by means of a final procedural decision rejecting the appellant’s request for the enforcement. Moreover, they were not suspended for any of the reasons prescribed by the Enforcement Procedure Act of 2003 ... Under the Enforcement Procedure Act of 2003, the enforcement court’s duty does not end once an enforcement order has been issued and delivered to the competent authority for enforcement.

40. Therefore, the failure of the Municipal Court to ... terminate the enforcement proceedings in one of the ways prescribed by [the Enforcement Procedure Act of 2003] ... without any justification based on the relevant law has led to an unlawful interference with the appellant’s right to the peaceful enjoyment of his possessions under Article II/3.k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention.”

19. Neither the judgment of 10 May 2007 (the amount due in respect of default interest) nor the Constitutional Court’s decision of 12 June 2013 has been fully enforced until the present day according to the last available information.

B. The facts concerning the second applicant

1. Civil proceedings

20. The second applicant was born in 1950 and lives in Orašje.

21. On 5 June 2001 the second applicant lodged a compensation claim with the Orašje Municipal Court, seeking damages against the Federation in respect for property owned by him that had been destroyed during the 1992-95 war.

22. On 28 May 2007 the Orašje Municipal Court ordered the Federation to pay the second applicant BAM 70,000 (approximately EUR 35,260) in respect of pecuniary damage, together with default interest at the statutory rate from April 2003 and legal costs, in accordance with the relevant provisions of the Civil Obligations Act of 1978.

23. That judgment became final on 7 November 2007.

2. Enforcement proceedings

24. On 14 November 2007 the second applicant lodged a request for the enforcement of the judgment of 28 May 2007 with the Orašje Municipal Court.

25. On 14 December 2007 the Orašje Municipal Court issued an enforcement order. The enforcement was to be carried out at the debtor’s expense.

26. On 13 February 2008 the court dismissed the debtor’s objection and upheld the enforcement order of 14 December 2007.

27. On 26 October 2009 the second applicant was issued government bonds in lieu of cash in respect of the principal debt, in accordance with the Domestic Debt Act of 2004 (see paragraph 42 below).

28. In March 2010 the second applicant received BAM 2,477.25 in respect of legal costs.

29. On 10 December 2010 the bank informed the Orašje Municipal Court that it could not make any payments from the debtor’s account without the approval of the Federal Ministry of Finance.

30. On 4 November 2011 the Federal Ministry of Finance informed the second applicant that, in accordance with the amendments to the Domestic Debt Act of 2004 (see paragraph 42 below), he would receive payment in cash for the nominal value of those of his government bonds with which he had not traded on the stock exchange market, reduced by the amount paid in respect of the interest earned on bonds.

31. On 5 December 2011 the second applicant received BAM 66,499.98 in respect of the principal debt. The second applicant acknowledged that that payment had fully settled the principal debt.

32. On 17 May 2012 the Orašje Municipal Court partially suspended the enforcement proceedings in view of the payments made in 2010 and 2011.

33. On 12 June 2012 the Ministry of Finance informed the Orašje Municipal Court that the judgment of 28 May 2007 had been fully enforced as regards the principal debt and legal costs, and that there was no legal basis for the payment of default interest.

34. On 5 April 2013 the Orašje Municipal Court instructed the second applicant to bring a civil action for damages against the bank under the ordinary rules of tort law for failure to comply with the execution order of 14 December 2007 and to fully enforce the judgment of 28 May 2007.

35. On 2 April 2014 the Orašje Municipal Court amended the execution order of 14 December 2007 in respect of the means of enforcement in that it ordered that the enforcement be executed with funds in accounts held by the debtor in two different banks.

3. Proceedings before the Constitutional Court

36. On 3 January 2009 the second applicant lodged an appeal with the Constitutional Court, complaining about the non-enforcement of the final judgment of 28 May 2007.

37. On 8 June 2011 the Constitutional Court held that there had been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the case of the second applicant and in three other cases on account of the excessive delay in the enforcement in respect of each case. It also held that the enforcement schedule under the Domestic Debt Act of 2004, which at the time stipulated that final judgments should be enforced by the payment of war damages in governments bonds in lieu of cash, had placed a disproportionate burden on the appellants. In its reasoning the Constitutional Court referred to its earlier decisions concerning the same matter. It ordered the Federation to enforce the final judgments in question without further delay.

38. On 16 January 2013 the Constitutional Court concluded that its decision of 8 June 2011 had been enforced.

39. The judgment of 28 May 2007 (the amount due in respect of default interest), however, has not been hitherto fully enforced.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Legislation on war damage

40. In 2001 the Federation created a general compensation scheme for war damage under the War Damage Act of 2001 (Zakon o utvrđivanju i ostvarivanju potraživanja nastalih za vrijeme ratnog stanja i neposredne ratne opasnosti, Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 43/01, and the Decree on Public Debt (Uredba o načinu utvrđivanja i realiziranja javnog duga Federacije Bosne i Hercegovine nastalog za vrijeme ratnog stanja i neposredne ratne opasnosti, OG FBH no. 17/02; compare Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, and Đurić and Others v. Bosnia and Herzegovina, nos. 79867/12 et al., 20 January 2015, concerning war damage in Republika Srpska). The claims in respect of war damage were declared a part of the public debt of the Federation to which default interest did not apply (section 6 of the War Damage Act of 2001).

41. The enforcement of final judgments awarding war damages has been suspended since 16 October 1998, pursuant to the Postponement of Enforcement Act of 1998 (Zakon o privremenoj obustavi od izvršenja potraživanja nastalih za vrijeme ratnog stanja i neposredne ratne opasnosti, OG FBH no. 39/98) and the Temporary Postponement of Enforcement Act of 2004 (Zakon o privremenom odlaganju od izvršenja potraživanja na osnovu izvršnih odluka na teret budžeta Federacije Bosne i Hercegovine, OG FBH no. 9/04).

42. The Domestic Debt Act of 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjih obaveza Federacije Bosne i Hercegovine, OG FBH nos. 66/04, 49/05, 35/06, 31/08, 32/09, 65/09, 42/11 and 35/14) introduced a settlement plan for the enforcement of final judgments ordering the payment of war damages (see also the Decision on the emission of bonds of the Federation of Bosnia and Herzegovina for claims of physical and legal persons concerning war damage, Odluka o emisiji obveznica Federacije Bosne i Hercegovine po osnovu ratnih potraživanja fizičkih i pravih lica, OG FBH no. 47/09). The Domestic Debt Act stipulated that a principal debt should be paid in government bonds and that legal costs should be settled in cash. The maturity of the bonds would be fourteen years. They were to be amortised in ten annual instalments, would earn interest at an annual rate of 2.5% and would be tradable on the stock exchange market. Default interest awarded by final judgments was written off (section 17(4) of the Domestic Debt Act of 2004).

43. Subsequently, following numerous decisions of the Constitutional Court finding that such a legislative solution was contrary to Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention – including the decision in the second applicant’s case (see paragraph 37 above) and decisions nos. AP 703/04 of 23 March 2005, AP 1084/06 of 11 March 2008 and AP 1307/08 of 9 July 2010 – the Domestic Debt Act of 2004 underwent several amendments. The most important one, which was introduced in November 2011, provided that final judgments should be enforced in cash. The provision concerning default interest remained unchanged.

B. Civil Obligations Act of 1978

44. Section 277 (1) of the Civil Obligations Act of 1978 (Zakon o obligacionim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/8, and Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92, 13/93 and 13/94) provides that in the event of a delay in the enforcement a debtor must pay default interest at the statutory rate, in addition to the principal debt.

C. The case-law of the Supreme Court and the Constitutional Court

45. In a decision of 14 September 2004, in another war damage case similar to the present one, the Supreme Court rejected an appeal on points of law submitted by the Federation. In so far as relevant to the case before the Court, its reasoning was as follows:

“... The lower courts correctly applied the relevant law and provided detailed reasons for their decisions, which this court accepts.

Objections contained in the appeal that the War Damage Act of 2001 should have been applied are groundless ...

That Act prescribes the procedure for the implementation of war damage claims; that procedure therefore falls under procedural, rather than substantive law. Accordingly, provisions under which war damage was declared a part of the public debt of the Federation to which default interest did not apply do not affect the [civil] procedure in which war damage claims are being determined, but are applicable in the enforcement stage.

... In view of the above, the debtor’s objection – that the second-instance court should have applied the War Damage Act of 2001 – is unsubstantiated.

As it is not a substantive law, it could not have been applied at this stage of the proceedings, irrespective of the fact that it came into legal force before the second-instance judgment was made ... ”

46. In a decision of 20 December 2005 concerning compensation for war damage in Republika Srpska (no. AP 774/04), the Constitutional Court considered that default interest awarded by final judgments constituted “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

47. In a later case, similar to the present ones, the Constitutional Court upheld the enforcement court’s conclusion that the debtor’s objections based on provisions concerning default interest were manifestly ill-founded (decision no. AP 3940/13 of 7 October 2014). In so far as relevant to the case before the Court, its reasoning was as follows:

“28. The Constitutional Court notes that the debtor’s objection in the enforcement proceedings concerning the application of the War Damage Act of 2001 and the Domestic Debt Act of 2004 [on default interest], which the appellant sees as an obstacle to the full enforcement of the final judgment [in his favour], were already examined and dismissed as ill-founded by the Municipal Court. The banks were ordered to continue with the enforcement ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

48. Given their common factual and legal background, the Court decides to join these two applications, pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

49. The applicants complained about the non-enforcement of the final domestic judgments in their favour. They relied on Article 6 § 1 of the Convention which, 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.”

A. Admissibility

1. The Government’s objections as to the admissibility

50. The Government argued that Article 6 § 1 was not applicable to the present case because the right which the applicants had sought to enforce did not have a basis in domestic law. The War Damage Act of 2001 and the Domestic Debt Act of 2004, which provided that default interest did not apply to claims for war damages and that default interest awarded by final judgments would be written off in the respective enforcement proceedings, were already in force at the time that the civil courts had decided the applicants’ compensation claims.

51. The Government further submitted that the second applicant had failed to exhaust domestic remedies because he should have appealed to the Constitutional Court again following the amendments to the relevant legislation in November 2011. The Constitutional Court’s decision of 8 June 2011 was not relevant to his present complaints concerning default interest.

52. Тhe applicants disagreed. In particular, as regards the Government’s second objection, the second applicant submitted that he had used all the remedies available to him.

2. The Court’s assessment

(a) Compatibility ratione materiae

53. The Court reiterates that Article 6 § 1 extends only to “disputes” over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law. It does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States (see, inter alia, Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001‑V). The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned. The Court’s starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. It is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation (see Boulois v. Luxembourg [GC], no. 37575/04, §§ 90-92, ECHR 2012, and the cases cited therein). Other criteria which may be taken into consideration by the Court include the recognition of the alleged right in similar circumstances by the domestic courts or the fact that the latter examined the merits of the applicant’s request (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 41, ECHR 2007‑II).

54. Turning to the present case, the Court notes that the applicants’ right to default interest was recognised by the domestic courts. It is true, as the Government rightly pointed out, that the War Damage Act of 2001 and the Domestic Debt Act of 2004 were in force at the time the domestic courts examined the applicants’ claims. The Court notes, however, that the courts decided to examine the applicants’ claims under the general rules of tort law and not under these two Acts. As already stated above, the Court also has to look at the interpretation of domestic law by the domestic courts when deciding whether a civil right exists or not.

55. Having regard to the above considerations, the Court concludes that Article 6 § 1 is applicable to the present case.

(b) Exhaustion of domestic remedies

56. The Court reiterates that the application of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, the Court has recognised that Article 35 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case. This means, amongst other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see among other authorities, Kurić and Others v. Slovenia [GC], no. 26828/06, § 286, ECHR 2012 (extracts), and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 220-225, ECHR 2014 (extracts), and the cases cited therein).

57. Turning to the present case, the Court notes that the second applicant’s constitutional appeal essentially concerned the enforcement scheme under the Domestic Debt Act of 2004, which was in force at the time (see paragraph 37 above). The Court further notes that the first applicant’s constitutional appeal was decided in 2013, that is to say after the legislative changes to which the Government referred, and that even though he clearly formulated his complaint concerning default interest the Constitutional Court failed to examine that issue (see paragraphs 16 and 18 above). Furthermore, in a later decision concerning war damage, the Constitutional Court merely upheld the reasoning of the enforcement court concerning default interest, without giving its own authoritative interpretation of this matter (see paragraph 47 above).

58. Therefore, it has not been shown that in this particular matter a new appeal to the Constitutional Court was capable of providing redress in respect of the second applicant’s complaint and of offering a reasonable prospect of success. In these circumstances, the Court considers that the Government’s objection on grounds of failure to exhaust domestic remedies cannot be upheld (see, mutatis mutandis, Zornić v. Bosnia and Herzegovina, no. 3681/06, § 21, 15 July 2014, and Hadžimejlić and Others v. Bosnia and Herzegovina, nos. 3427/13 and 2 others, § 46, 3 November 2015).

3. Conclusion

59. 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.

B. Merits

1. The parties’ submissions

60. The applicants maintained that their civil rights had been established by the domestic courts in the judgments of 10 and 28 May 2007, which remained unenforced.

61. The Government maintained that the final judgments in the applicants’ favour had been fully enforced. The applicants had received payments in respect of principal debt and legal costs. Default interest could not have been paid because it had been written off, pursuant to the Domestic Debt Act of 2004.

2. The Court’s assessment

62. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal: in this way, it embodies the “right to court”, of which the right of access, that is to say the right to institute proceedings before the courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail the procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions. To construe Article 6 as being concerned exclusively with access to the courts and the conduct of proceedings would indeed be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports 1997-II, and Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999‑V).

63. The Court reiterates that one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that when the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 44, ECHR 2006‑XII).

64. The Court further notes that the second applicant was instructed by the enforcement court to bring a civil action for damages against the bank under the ordinary rules of tort law for its failure to fully enforce the judgment in his favour. In this connection the Court reiterates that requiring an applicant to pursue another set of civil proceedings after he has already obtained a final judgment in his favour would place an excessive burden on him (see, mutatis mutandis, Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004, and Đukić v. Bosnia and Herzegovina, no. 4543/09, § 33, 19 June 2012). It is clear that more than eight and almost ten years have passed since the respective domestic decisions in issue became final and they have not yet been fully enforced. Accordingly, the Court concludes that there has been a breach of Article 6 § 1 of the Convention in the present case (see Jeličić, cited above, §§ 38-46 and 48-49; Milisavljević v. Bosnia and Herzegovina, no. 7435/04, § 27, 3 March 2009; and Đukić, cited above, § 33).

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

65. The applicants further complained that the authorities’ prolonged failure to comply with the binding and enforceable judgments in their favour violated their right to the peaceful enjoyment of their possessions guaranteed by Article 1 of Protocol No. 1 to the Convention, which 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.”

A. Admissibility

66. In line with their submissions concerning Article 6 § 1 of the Convention, the Government argued that Article 1 of Protocol No. 1 to the Convention was inapplicable to the present case as the applicants had not had a legitimate expectation under domestic law of receiving payment of default interest. They relied, in particular, on Kopecký v. Slovakia ([GC], no. 44912/98, § 56, ECHR 2004‑IX). The Government further submitted that the present case was different from the one examined by the Constitutional Court in its decision of 20 December 2005 (see paragraph 45 above) because a lex specialis concerning default interest had already been in force when the present applicants’ compensation claims had been examined.

67. The applicants reiterated that their right to default interest had been established in the final domestic judgments.

68. Contrary to the Government’s argument, the Court is of the opinion that the precedent established by the Kopecký judgment cannot be applied to the present case. In that case the applicant’s restitution claim had been a conditional one from the outset and the question of whether or not he had complied with the statutory requirements was to be determined in the ensuing judicial proceedings. The courts had ultimately found that the applicant had not complied with the statutory requirements. The Court therefore concluded that the applicant’s claim in that case had not been sufficiently established to qualify as an “asset” attracting the protection of Article 1 of Protocol No. 1 (see Kopecký, cited above, § 58).

69. In the present case, however, the applicants’ “asset” within the meaning of Article 1 of Protocol No. 1 was established in the final judgments of the competent domestic courts (see, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III). It is true that a lex specialis was already in force at the time that the applicants’ claims were examined. However, as already stated above, the domestic courts, although aware of the lex specialis in question, decided to apply the general rules of tort law.

70. 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.

B. Merits

1. The parties’ submissions

71. The applicants reiterated that the full enforcement of the domestic judgments under consideration required payment of default interest.

72. The Government maintained that the final judgments in the applicants’ favour had been fully enforced.

2. The Court’s assessment

73. The Court reiterates that an applicant’s inability to obtain the execution of a final judgment in his or her favour constitutes an interference with his or her right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov, cited above, § 40, and Jeličić, cited above, § 48). The final judgments under consideration in the present case undoubtedly created for the applicants an enforceable claim protected by Article 1 of Protocol No. 1.

74. For the reasons set out above in relation to Article 6 § 1, the Court further considers that the interference with the applicants’ possessions was not justified in the circumstances of the present case. Therefore, there has also been a violation of Article 1 of Protocol No. 1 to the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

75. 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.”

76. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

77. It must, however, be noted that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see, Apostol v. Georgia, no. 40765/02, §§ 71-73, ECHR 2006, and Marčić and Others v. Serbia, no. 17556/05, §§ 64-65, 30 October 2007).

78. Having regard to its finding in the instant case, the Court considers that the respondent State must secure full enforcement of the judgments of 10 and 28 May 2007 by way of paying the applicants default interest awarded by these judgments (see, mutatis mutanids, Pralica v. Bosnia and Herzegovina, no. 38945/05, § 20, 27 January 2009).

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 § 1 of the Convention;

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5. Holds that the respondent State is to secure payment of default interest ordered by final domestic judgments under consideration in the present case, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention.

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena TsirliGanna Yudkivska
RegistrarPresident

 

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