FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34379/03
by Spasoje LUKIĆ and Others
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 18 November 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 17 October 2003,
Having regard to the partial decision of 9 January 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Spasoje Lukić, Ms Jovanka Lukić, Mr Svetozar Lukić and Mr Aleksandar Lukić, are citizens of Bosnia and Herzegovina who were born in 1939, 1954, 1977 and 1979 respectively and live in Doboj. They were represented before the Court by Mr S. Lopandić, a lawyer practising in Doboj. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Prior to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicants deposited foreign currency in their bank accounts at the then Jugobanka Sarajevo Ekspozitura Doboj. In Bosnia and Herzegovina, as well as in other successor States of the former SFRY, such savings are commonly referred to as “old” foreign-currency savings (for the relevant background information see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-...).
Following several unsuccessful attempts to withdraw their funds, the applicants initiated court proceedings seeking the recovery of their entire “old” foreign-currency savings and accrued interest.
By a decision of the Doboj Court of First Instance of 23 July 1993, the Jugobanka Banja Luka Ekspozitura Doboj (the legal successor of the Jugobanka Sarajevo Ekspozitura Doboj) was ordered to pay the applicants 7,741.99 German marks, 22.03 US dollars and 3,087.57 Swiss francs together with default interest on the above amounts at the statutory rate from 18 December 1992. The judgment entered into force on 25 August 1993. On 17 November 1993 the Doboj Court of First Instance issued a writ of execution (rješenje o izvršenju). The execution proceedings were stayed between 11 May 1998 and 2 April 2001.
On 3 April 2001 the domestic Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 23 July 1993 and ordered the Republika Srpska to ensure full enforcement thereof without further delay. The Human Rights Chamber further considered that any pecuniary damage would be compensated through payment of default interest as provided by the judgment in issue. It therefore rejected the applicants’ claim for compensation for pecuniary damage. The applicants did not claim compensation for non-pecuniary damage.
On 17 April 2002 the Republika Srpska took over the judgment debt, pursuant to section 20 of the Opening Balance Sheets Act 1998.
On 12 March 2004 the Republika Srpska paid the principal debt in the amount of 11,562.80 convertible marks (BAM). On 19 July 2005 the applicants were paid default interest in the amount of BAM 12,625.93.
B. Relevant law and practice
1. Relevant domestic law and practice concerning default interest
The Default Interest Rate Act 2001 (Zakon o visini stope zatezne kamate; published in the Official Gazette of the Republika Srpska (“OG RS”) no. 19/01 of 11 May 2001; amendments published in OG RS no. 52/06 of 17 May 2006) entered into force on 19 May 2001. It sets the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in any currency. According to section 3 of this Act, default interest is calculated on the basis of the official retail price growth rate (stopa rasta cijena na malo) plus another 0.05% daily (fiksna stopa). Inflation in the Republika Srpska, as measured by the official retail price growth rate, was relatively slow in the years from 2001 to 2004. The relevant figures were as follows: 6.5% in 2001, 1.7% in 2002, 1.8% in 2003 and 1.9% in 2004 (see the Annual Report of the Central Bank of Bosnia and Herzegovina for 2006, p. 123).
As to the period before the entry into force of the Default Interest Rate Act 2001, the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in a foreign currency is the rate applicable to overnight foreign-currency deposits (see, for example, judgment of the Supreme Court of the Republika Srpska no. Rev-281/04 of 21 February 2006). According to an official report submitted by the respondent Government, at the request of the Court, in another case (Kudić v. Bosnia and Herzegovina, no. 28971/05), the relevant figures for the years from 1992 (when the default period started in the present case) to 2001 (when the Default Interest Rate Act 2001 entered into force) were as follows: 4.06% in 1992, 2.82% in 1993, 2.43% in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998, 2.78% in 1999, 2.40% in 2000 and 2.20% in 2001).
2. Other relevant law and practice
For other relevant law and practice see the admissibility decision in Jeličić, cited above; the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006‑...; and Pejaković and Others v. Bosnia and Herzegovina, nos. 337/04, 36022/04 and 45219/04, 18 December 2007.
THE LAW
Without invoking any particular provision of the Convention, the applicants complained of the non-enforcement of a final and enforceable judgment of 23 July 1993 in their favour. This complaint was communicated to the Government under 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 of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government submitted that the principal debt had been paid on 12 March 2004 and default interest on 19 July 2005. Since the domestic Human Rights Chamber had expressly acknowledged the alleged breach of the Convention, the Government maintained that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention.
The applicants agreed that the principal debt had been fully paid on 12 March 2004, but denied that the amount paid on 19 July 2005 constituted full interest. They submitted that the default interest should have been paid at the annual rate of 15% and that they should thus receive an additional amount of BAM 8,000.
The Court notes that the applicants were entitled to receive, besides the principal debt, default interest at the statutory rate from 18 December 1992. In the years before the entry into force of the Default Interest Rate Act 2001, the statutory rate was, contrary to what the applicants claimed, between 2.20% and 4.06% yearly. From 19 May 2001 (when the Default Interest Rate Act 2001 entered into force) to 12 March 2004 (when the principal debt was paid in full), the statutory rate was slightly above 18% yearly. Since the applicants failed to demonstrate that the domestic authorities had applied the wrong statutory rate or that they had wrongly calculated default interest in any other manner, the Court concludes that the judgment in issue was fully enforced on 19 July 2005.
Turning to the applicants’ victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged the breach (at least in substance) and afforded redress for it (see the admissibility decision in Jeličić, cited above). It is further recalled that redress afforded by the national authorities must be appropriate and sufficient (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006).
In the present case, it has not been disputed that the domestic Human Rights Chamber expressly acknowledged the alleged breach of the Convention without awarding any damages. Nevertheless, since the applicants were compensated for pecuniary damage through payment of default interest and failed to claim compensation for non-pecuniary damage before the Human Rights Chamber, the Court considers that the acknowledgment of a violation was, in itself, appropriate and sufficient redress for the purposes of Article 34 of the Convention.
In these circumstances, the applicants can no longer claim to be victims of the alleged breach. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy