FOURTH SECTION
DECISION
Application no. 41925/06
Zufer MURATSPAHIĆ and Others
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 7 February 2012 as a Committee composed of:
George Nicolaou, President,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2006,
Having regard to the formal declarations accepting a friendly settlement of the case with respect to Ms Ranka Lasica and Mr Radomir Dobrilović, as well as the declaration relating to Mr Zufer Muratspahić submitted by the respondent Government on 13 May 2011 requesting the Court to strike his application out of the list of cases and the applicant’s reply,
Having deliberated, decides as follows:
PROCEDURE
The applicants, Mr Zufer Muratspahić, Ms Ranka Lasica and Mr Radomir Dobrilović, are citizens of Bosnia and Herzegovina who were born in 1956, 1955 and 1952 respectively and live in different towns in Bosnia and Herzegovina. The first applicant was represented before the Court by Jahić & Hadžagić, a law firm based in Sarajevo. The remaining applicants were represented before the Court by Mr O. Borovac, a lawyer practising in Sarajevo. 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.
Before the 1992-95 war in Bosnia and Herzegovina, the applicants lived in the same building in Goražde. The building burnt down during the war and the local authorities thereafter converted it into a social care home. As a result, the applicants have not been able to return to their pre-war homes.
On 15 December 2005 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (“the Commission”) held that the authorities had unlawfully interfered with the applicants’ rights enshrined in Article 8 of the Convention and Article 1 of Protocol No. 1. It ordered that the applicants either be allocated suitable replacement flats within three months or, failing such allocation, be paid the amount equivalent to the current price of such flats. Each of the applicants was also awarded 3,000 convertible marks (BAM) for non-pecuniary damage.
On 5 July 2006 the applicants were paid the compensation awarded (that is, BAM 3,000 each).
On 20 December 2006 the Commission held that the impugned decision had not yet been fully enforced. It referred the case to the competent public prosecutor (non-enforcement of the Commission’s decisions is a criminal offence).
It would appear that the decision of 15 December 2005 has not yet been fully enforced.
COMPLAINTS
The applicants complained of the non-enforcement of the decision of 15 December 2005. They relied on Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
A. As regards Ms Ranka Lasica and Mr Radomir Dobrilović
On 30 March 2011 the Court received the following declaration from the Government:
“I, Monika Mijić, the Agent, declare that the Government offer to pay ex gratia 35,000 euros to Mr Zufer Muratspahić, 35,000 euros to Mr Radomir Dobrilović and 41,000 euros to Ms Ranka Lasica with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
These sums, which are to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into convertible marks at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
The Court received the following declaration signed by two applicants, Ms Ranka Lasica and Mr Radomir Dobrilović:
“I, Omer Borovac, note that the Government are prepared to pay ex gratia 35,000 euros to Mr Radomir Dobrilović and 41,000 euros to Ms Ranka Lasica, our clients, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
These sums, which are to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into convertible marks at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
Having consulted my clients, I would inform you that they accept the proposal and waive any further claims against Bosnia and Herzegovina in respect of the facts giving rise to this application. They declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the Government and those applicants. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of their application (Article 37 § 1 in fine of the Convention) as regards Ms Ranka Lasica and Mr Radomir Dobrilović.
B. As regards Mr Zufer Muratspahić
Since Mr Zufer Muratspahić had refused to sign the friendly-settlement declaration mentioned above, by letter dated 13 May 2011 the Government informed the Court that they proposed to make a unilateral declaration with regard to that applicant. The declaration provided as follows:
“I, Monika Mijić, the Agent, declare that the Government are ready to accept that there had been a violation of the applicant’s rights guaranteed by the Convention due to non-enforcement of the Decision rendered by the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina in favour of the applicant and offer to pay ex gratia 31,500 euros to the applicant, Mr Zufer Muratspahić.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into convertible marks at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. The above sum will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
In a letter of 30 June 2011 the applicant expressed the view that the sum mentioned in the Government’s declaration was low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has established in many cases, including those brought against Bosnia and Herzegovina, its practice concerning complaints about the non-enforcement of domestic decisions (see Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006‑XII; Karanović v. Bosnia and Herzegovina, no. 39462/03, 20 November 2007; Milisavljević v. Bosnia and Herzegovina, no. 7435/04, 3 March 2009; and Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine) as regards Mr Zufer Muratspahić.
C. Conclusion
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration as regards Mr Zufer Muratspahić;
Decides to strike the application out of its list of cases.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy