FOURTH SECTION
DECISION
Application no. 77574/12
Miroslav SAMARDŽIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 1 April 2014 as a Committee composed of:
Päivi Hirvelä, President,
Nona Tsotsoria,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 November 2012,
Having regard to the declaration submitted by the respondent Government on 14 October 2013 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Miroslav Samardžić, is a citizen of Bosnia and Herzegovina who was born in 1957 and lives in Banja Luka. He was represented before the Court by Mr I. Sjerikov, a lawyer practising in Banja Luka.
The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.
The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention of the non-enforcement of final domestic judgment adopted in his favour against the Republika Srpska for war damage.
The application had been communicated to the Government.
THE LAW
After the failure of attempts to reach a friendly settlement, by a letter of 14 October 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I, Monika Mijić, the Agent, declare that the Government are ready to accept that there was a violation of the applicants’ rights guaranteed by the Convention due to non-enforcement of the domestic judgment rendered in favour of the applicant and offer to pay ex gratia a total sum of 900 euros to the applicant Miroslav Samardžić.
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. It will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. 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.
I further declare that the domestic authorities offer to secure full enforcement of the domestic judgments under consideration in this case in cash in four equal instalments to be paid in the following manner:
- the first instalment within nine months from the date of the notification of the decision taken by the Court to strike the case out of its list of cases;
- the second instalment within six months from the first payment;
- the third instalment within six months from the second payment; and
- the fourth instalment within six months from the third payment.
This will constitute the final resolution of the case.”
In a letter of 25 October 2013, the applicant informed the Court that he did not accept the Government’s declaration and wished the examination of his case to be continued.
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, in particular the Tahsin Acar judgment (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).
The Court has established in a number of cases, including those brought against Bosnia and Herzegovina, its practice concerning complaints of 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).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy