Information Note on the Court’s case-law No. 114
December 2008
Kudić v. Bosnia and Herzegovina - 28971/05
Judgment 9.12.2008 [Section IV]
Article 34
Victim
Insufficient amount of non-pecuniary damage for non-enforcement of final judgment at domestic level: victim status upheld
Facts: In 1993, the applicants obtained a judgment in their favour ordering the repayment of their “old” foreign-currency savings. Since they were unable to obtain the amounts that had been awarded to them, they subsequently complained to the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina about the prolonged non-enforcement of the 1993 judgment. In April 2005 the Human Rights Commission found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising out of the failure to enforce that judgment, and ordered the Federation of Bosnia and Herzegovina to ensure its full enforcement within two months and to pay the applicants EUR 255 in respect of non-pecuniary damage. The judgment was fully enforced on 5 June 2007.
Law: Article 34 – The Government had submitted that the applicants could no longer claim to be victims since the judgment in issue had been enforced and the Human Rights Commission had acknowledged the alleged breach and awarded compensation. According to the Court's case-law, a decision or measure favourable to the applicant was not sufficient to deprive him of his status as a “victim” unless the national authorities had acknowledged the breach, at least in substance, and afforded appropriate and sufficient redress for it. As already held in length-of-proceedings cases, one of the characteristics of sufficient redress which may remove an applicant's victim status was the amount awarded as a result of using the domestic remedy. Since enforcement proceedings formed an integral part of the “trial” for the purposes of Article 6, the principles developed in the context of length-of-proceedings cases were found to be equally applicable in the situation where an applicant complained of the protracted non-enforcement of a final and enforceable judgment in his or her favour. In the applicants' case, the just satisfaction awarded by the Human Rights Commission was not in reasonable proportion to what the Court would have been likely to award them under Article 41 in respect of the same period and, moreover, had not sped up the enforcement, since the proceedings had continued for more than two years after the Human Rights Commission's decision. In view of the foregoing, the applicants could still claim to be victims of the alleged violations.
Article 6 § 1 and Article 1 of Protocol No. 1 – On account of the lengthy non-enforcement of the judgment in the applicants' case, the Court found violations of their right of access to court and of their right to the peaceful enjoyment of their possessions (compare Jeličić v. Bosnia and Herzegovina, no. 41183/02, judgment of 31 October 2006, Information Note no. 90).
Article 41 – EUR 1,300 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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