FIFTH SECTION
DECISION
Application no. 15663/12
Živko KNEŽEVIĆ and Others
against Bosnia and Herzegovina
The European Court of Human Rights (Fifth Section), sitting on 14 March 2017 as a Chamber composed of:
Angelika Nußberger, President,
André Potocki,
Faris Vehabović,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 10 January 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Živko Knežević, Ms Stoja Knežević and Ms Nada Knežević, are citizens of Bosnia and Herzegovina who were born in 1946, 1951 and 1975 respectively and live in Čelinac. They were represented before the Court by Mr D. Prerad and Mr M. Prerad, lawyers practising in Banja Luka.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 19 October 2000 the Banja Luka Court of First Instance (“the Court of First Instance”) awarded war damages to the applicants and ordered the Republika Srpska (an Entity of Bosnia and Herzegovina) to pay each of the applicants within 15 days 6,000 convertible marks (BAM) in compensation for non-pecuniary damage and BAM 2,000 to the first applicant in respect of pecuniary damage. It also awarded default interest at the statutory rate and BAM 1,808 for legal costs.
4. On 12 April 2005 the Banja Luka District Court upheld the first‑instance judgment and it became final.
5. On 18 April 2006 the Court of First Instance issued an enforcement order.
6. As far as the Court is aware, the judgment has not been enforced to date.
B. The Courtʼs earlier judgments concerning the non-enforcement of final domestic judgments awarding war damages
7. On 10 November 2009 the Court adopted Čolić and Others v. Bosnia and Herzegovina (nos. 1218/07 et al.), a leading judgment concerning the non-enforcement of final domestic judgments awarding war damages. It held that the size of public debt could not justify the statutory suspension of enforcement of an entire category of final judgments and found that there had been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the excessive delay in enforcement. In view of the number of similar cases, the Court invited the respondent State, under Article 46 of the Convention, to solve the problem that had led to the finding of a violation by way of implementing appropriate general or individual measures or both (loc.cit., § 17).
8. In December 2010 the Republika Srpska introduced an Action Plan in order to implement the general measures ordered in Čolić and Others (see Đurić and Others v. Bosnia and Herzegovina, nos. 79867/12 et al., 20 January 2015, § 16). After identifying the exact number of non-enforced judgments and the aggregate debt, a settlement plan for enforcement was prepared in October 2012. It provided for the enforcement of final judgments by ordering the payment of war damages in cash within thirteen years starting from 2013, in the order in which they had been received at the Ministry of Finance of the Republika Srpska (“the Ministry of Finance”), provided the creditors had submitted the necessary documents. Furthermore, the Republika Srpska undertook to pay 50 euros (EUR) in respect of non-pecuniary damage for delayed enforcement. In July 2013 the time frame for enforcement was extended to twenty years, also starting from 2013.
9. On 20 January 2015 the Court adopted Đurić and Others (cited above), in which it examined the adequacy of the 2012 settlement plan.
The relevant part of Đurić and Others reads (§§ 30-31 and §§ 46-47):
"30. As regards the enforcement time frame, the Court takes the view that, while the system of staggering the enforcement of final judgments may be accepted in exceptional circumstances (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999‑V), the proposed time frame of 20 years is too long in the light of the lengthy delay which has already occurred. The Court is aware of the Republika Srpskaʼs significant public debt as well as of the number of non-enforced judgments and the number of cases pending before the domestic courts. It reiterates however that it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002‑III; Teteriny v. Russia, no. 11931/03, § 41, 30 June 2005; and Jeličić v. Bosnia and Herzegovina, no. 41183/02, §§ 39 and 42, ECHR 2006‑XII).
Moreover, it was the Republika Srpskaʼs legal system that allowed for the creation of such a high number of judgments awarding war damages: civil actions for war damages were brought under the ordinary rules of tort law (see paragraph 12 above). By the end of 2005 when the War Damage Act 2005 was introduced some 9,000 judgments became final (see paragraph 13 above). While a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights is inherent in the whole of the Convention, the consequence of the respondent State’s action in delaying for another 20 years the enforcement of these judgments is to impose an individual and excessive burden on the creditors concerned (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, Series A no. 52, §73). Some of the applicants in the present case obtained final judgments in their favour thirteen years ago (see paragraph 6 above) and they remain unenforced to the present day. There are many more in similar situations. It should be noted that around 400 similar cases are pending before this Court.
31. Furthemore, the Court accepts that the payment of compensation for non-pecuniary damage envisaged by the settlement plan is intended by the respondent State to constitute compliance with its obligations under the Convention and commends this gesture, and especially the settlement plan from October 2012. However, in view of the above considerations, the Court cannot but conclude that the Republika Srpska’s settlement plan, as extended in 2013, is not in accordance with Article 6 and Article 1 of Protocol No. 1 to the Convention.
...
46. In the present case the Court has found that the settlement plan for the enforcement of domestic judgments ordering the payment of war damages was not in accordance with Article 6 and Article 1 of Protocol No. 1. This violation affects many people (see paragraphs 16 and 18 above). Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46 of the Convention, the Court considers that in view of the nature of the violation found in the instant case, it would be appropriate to provide the respondent Government with some guidance as to what is required for the proper execution of the present judgment.
47. The Court, therefore, considers that the respondent State should amend the settlement plan within a reasonable time-limit, preferably within a year, of the date on which the present judgment becomes final. In view of the lengthy delay which has already occurred, the Court considers that a more appropriate enforcement interval should be introduced. In that respect, the Court finds that the interval proposed by the initial settlement plan, in October 2012 (see paragraph 28 above), was far more reasonable, at the time it was introduced. In any event, the Court considers that in the cases in which there had already been a delay of more than ten years, the judgments need to be enforced without further delay. Lastly, within the same time-limit, the respondent State should also undertake to pay default interest at the statutory rate in the event of a delay in the enforcement of judgments in accordance with the settlement plan as amended following this judgment.”
C. Relevant domestic law and practice
10. The relevant domestic law and practice were outlined in Đurić and Others (cited above, §§ 12-18).
11. On 15 September 2016 the Republika Srpska introduced a new settlement plan for the payment of war damages (Plan isplate obaveza po osnovu materijalne i nematerijalne štete nastale u periodu ratnih dejstava od 20. maja 1992. godine do 19. juna 1996. godine, koje se izmiruju u gotovini) in order to implement the general measures indicated in Đurić and Others (cited above, § 47). The aggregate debt was estimated at BAM 112,400,000. The plan provides for the enforcement of final judgments by the payment of war damages in cash within thirteen years, starting from 2016, in the order in which they were received at the Ministry of Finance. Judgments received by the end of 2004, where there had already been a delay of more than ten years at the time of the adoption of Đurić and Others (ibid., § 47), would be enforced in 2016, provided the creditors had submitted the necessary documents. For those who submit their documents later the judgments will be enforced in the ensuing period without delay. Furthermore, the Republika Srpska undertook to pay EUR 50 in respect of non-pecuniary damage for delayed enforcement and default interest at an annual rate of 0.5% in the event of a delay in the enforcement of judgments in accordance with the settlement plan. Final judgments received at the Ministry of Finance after 15 September 2016 will be enforced under the same conditions, after the enforcement of judgments included in the settlement plan.
D. Relevant Council of Europe documents
12. On 7 March 2017, at its 1280th meeting, the Committee of Ministers of the Council of Europe, in its supervisory function under the terms of Article 46 § 2 of the Convention, examined the state of implementation of Čolić and Others and Đurić and Others and adopted the following decision (see document no. CM/Del/Dec(2017)1280/H46-7):
“The Deputies
as regards individual measures
1. noted with satisfaction that in all the cases in this group the domestic court decisions have been enforced and that no other individual measures are required;
as regards general measures
2. welcomed the fact that the 2013 settlement plan, prepared for the execution of these judgments, was revised in 2016 with a view to complying with the findings of the European Court in the case of Đurić;
3. noted that the revised settlement plan provides for the execution of the unenforced decisions, together with payment of non-pecuniary damages in respect of the delay in enforcement and the default interest in the event of any further delay;
4. noted therefore with satisfaction that the revised settlement plan provides a global solution to the problem of non-enforcement of domestic court decisions relating to war damages;
5. encouraged the authorities to pursue their efforts to ensure that the settlement plan is implemented efficiently in line with the Court’s findings and Convention standards and invited them to provide information on the results obtained;
6. decided, on the basis of the progress achieved in the execution of this group of cases, to transfer it from enhanced supervision to the standard supervision procedure.”
COMPLAINTS
13. The applicants complained about the non-enforcement of the final domestic judgment in their favour. They invoked Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
14. The applicants alleged a breach of their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
Article 6 § 1, 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.”
15. The Court notes that in Đurić and Others it commended the settlement plan of October 2012 which envisaged an enforcement time frame of thirteen years (ibid., § 31). In the new settlement plan of 15 September 2016 the Republika Srpska has returned to that proposal. The plan provides for the enforcement of final judgments by the payment of war damages in cash within thirteen years, starting from 2016, in the order in which they were received at the Ministry of Finance. It has also ensured that final judgments are enforced without further delay in cases in which there had already been a delay in enforcement of more than ten years at the time of the adoption of Đurić and Others (ibid., § 47). Furthermore, it has taken other measures to comply with its obligations under Article 46 of the Convention. The obligation to pay compensation in respect of non-pecuniary damage and to pay default interest at an annual rate of 0.5% in the event of a delay in the enforcement envisaged in the new settlement plan are also in line with the Court’s recommendation in Đurić and Others. The Court therefore considers that the respondent State has implemented the general measures indicated in Đurić and Others in conformity with the Convention. That was also the opinion of the Committee of Ministers which considered that “the revised settlement plan provides a global solution to the problem of non-enforcement of domestic court decisions relating to war damages” (see paragraph 12 above).
16. The final judgment in the applicants’ favour will be enforced in accordance with the new settlement plan, which the Court considers to be in accordance with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. They will also receive compensation for non-pecuniary damage suffered on account of delayed enforcement.
17. In view of the above, the Court concludes that the matter has been resolved for the purposes of Article 37 § 1 (b) of the Convention (see Zadrić v. Bosnia and Herzegovina (dec.), no. 18804/04, 16 November 2010, and compare Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 77, ECHR 2007‑XIV) and finds that further examination of the present application is no longer justified. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. Accordingly, the application should be struck out of the list of cases.
18. This conclusion is, however, without any prejudice to the Court’s power pursuant to Article 37 § 2 of the Convention to restore the present or any other similar application to the list of cases if the circumstances, in particular the future implementation of the new settlement plan, justify such a course.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases.
Done in English and notified in writing on 6 April 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy