SECOND SECTION
DECISION
Application no. 32472/03
by Mlađen ŠEKEROVIĆ
against Serbia
The European Court of Human Rights (Second Section), sitting on 4 January 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 13 August 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mlađen Šekerović, is a citizen of Bosnia and Herzegovina who was born in 1932 and lives in Tuzla.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In January 1991 the applicant opened a foreign currency savings account with a Belgrade-based bank called “Jugoslovenska izvozna i kreditna banka” (“the Bank”), in particular its branch in Tuzla, Bosnia and Herzegovina.
On 19 February 1991 he deposited 4,959.98 German Marks (“DEM”) in this account for a period of one year with an annual interest rate stipulated at 6.95%.
On 15 April 1992 the applicant had a total of 5,146.28 DEM on his foreign currency savings account.
By 29 October 1993 he appears to have requested the Bank to release his funds on several occasions but the requests were rejected each time.
On 16 May 1994 the First Municipal Court in Belgrade ruled in favour of the applicant. In so doing, it recognised him as a “depositor” and ordered the Bank to respect his rights as such (“[omogući] ostvarivanje svih prava po osnovu devizne štednje knjižice”). Since this judgment was not appealed, it became final and subsequently enforceable.
On an unspecified date the applicant issued enforcement proceedings before the Fourth Municipal Court in Belgrade.
On 12 September 1996 the said court ordered the Bank to register the interest due in the applicant’s account and pay his litigation costs.
On 11 November 1996 the Bank registered the interest from 1993 to 1995, on 20 February 1996 the interest for 1996, and on 18 May 1998 the interest for 1997.
In addition, on 14 June 1994, 4 January 1995 and 18 May 1995, the Bank paid the applicant 30 DEM, 180 DEM and 150 DEM, respectively, all converted into Yugoslav Dinars.
Following the financial collapse of numerous banks in Serbia, in 1998 the respondent State, then the Federal Republic of Yugoslavia (hereinafter “the FRY”), adopted a specific Act accepting to convert the foreign currency deposits in these banks, including the bank at issue in the present case, into a “public debt” and then went on to set the time-frame and the amounts to be paid back to their former clients. This Act also explicitly provided that foreign currency-related judicial enforcement proceedings against the said banks were to be discontinued (“obustavljeni”) (see at B.1. below).
On 26 July 2000 the Commercial Court in Belgrade opened insolvency proceedings in respect of the bank in question.
On 4 May 2001 the applicant filed a submission with the Yugoslav Central Bank (“Narodna banka Jugoslavije”), seeking clarification of his legal situation.
On 7 May 2001 and 25 June 2001, he appears to have requested the Bank to allow him to withdraw a certain amount of his foreign currency savings.
On 23 August 2001 the Yugoslav Central Bank informed the applicant that the status of foreign currency deposits was regulated in accordance with the 1998 Act mentioned above. It specifically noted that all persons with a registered residence (“prebivalište”) in one of the republics of the former Socialist Federal Republic of Yugoslavia (hereinafter “the SFRY”) apart from the Republic of Serbia and the Republic of Montenegro, who had their foreign currency savings deposited with an “authorised bank” based in one of the said two republics, could only exercise their rights in accordance with this Act “under the condition of reciprocity”. Since the Government of the FRY had not adopted implementing regulations in this respect, the applicant, as a person with a registered residence in Bosnia and Herzegovina, was not entitled to have his foreign currency deposits released.
On 5 September 2001 the applicant again addressed the Fourth Municipal Court, seeking the continuation of the enforcement proceedings.
On 6 December 2001 he sent a letter to the President of that court requesting the same - instantaneously or in instalments.
In 2002 the respondent State repealed the above-mentioned 1998 Foreign Currency Savings Act and adopted a new law. This new legislation, however, explicitly acknowledged as part of the public debt all deposits previously recognised as such, modified the time-frame for honouring the debt in question and specified amended amounts to be paid annually. The 2002 Act also reaffirmed that all foreign currency related judicial enforcement proceedings against the said banks were to be discontinued (see at B.2. below).
On 25 September 2002 the applicant sent a letter to the Federal Ministry of Justice requesting that his foreign currency savings be released together with the interest accrued, and warned that he would otherwise file an application with this Court.
On 26 September 2002 he sent a letter to the Embassy of Bosnia and Herzegovina in Belgrade, seeking assistance concerning his foreign currency savings.
In October of 2002 the Ambassador of Bosnia and Herzegovina informed the applicant that, according to the Yugoslav Central Bank, his legal status was regulated by the 2002 Foreign Currency Savings Act mentioned above. This meant, in particular, that as a citizen of Bosnia and Herzegovina he could only obtain his deposits in a manner “to be agreed upon among the successor States” of the former SFRY.
On 25 November 2002 the applicant repeated his request previously addressed to the Ministry of Justice and yet again threatened a lawsuit before this Court.
On 17 March 2003 the applicant filed a motion with the Court of Serbia and Montenegro (“Sud Srbije i Crne Gore”). Therein he complained about the non-enforcement of the final judgment adopted by the First Municipal Court on 16 May 1994, as well as the failure of the competent State authorities to release his foreign currency savings.
B. Relevant domestic and international law
1. Act on the Settlement of Obligations Arising from the Citizens’ Foreign Currency Savings (Zakon o izmirenju obaveza po osnovu devizne štednje građana; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 59/98, 44/99 and 53/01)
Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with the “authorised banks” before 18 March 1995, including explicitly the deposits in the bank at issue in the present case (“Jugoslovenska izvozna i kreditna banka”), were to become public debts.
Under Articles 2 and 10, the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
In accordance with Article 21, all individuals with a registered residence in one of the republics of the former SFRY, apart from the Republic of Serbia and the Republic of Montenegro, who had deposited their foreign currency savings with an “authorised bank” based in one of those two republics, could only exercise their rights in accordance with this Act “under the condition of reciprocity” and provided the Federal Government did not decide otherwise.
Article 22 stated that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act [were to be] discontinued.”
2. Act on the Settlement of the Public Debt of the FRY Arising from the Citizens’ Foreign Currency Savings (Zakon o regulisanju javnog duga Savezne Republike Jugoslavije po osnovu devizne štednje građana; published in OG FRY no. 36/02)
This Act repeals the Act described at B.1. above. However, it explicitly acknowledges as part of the public debt all deposits previously recognised as such, modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually.
Pursuant to Article 13, the banks’ clients can make use of their deposits converted into Government bonds in order to pay taxes or, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, for the payment of medical treatment, medication and funeral costs.
In accordance with Articles 10 and 11, former clients of the banks in question may also sell the said bonds on the stock exchange or to other banks or individuals in the amount of their entire foreign currency savings, or only a part of these savings, and thus immediately obtain their funds in cash. Such trading is exempt from all taxation.
Under Article 21 § 1, citizens of former Yugoslav republics, now nationals of new independent States, who have deposited their foreign currency savings with the “authorised banks” based in Serbia and Montenegro, as well as citizens of Serbia and Montenegro who have deposited such savings with the branch offices of these banks located in the territory of one of the former republics of the SFRY, up until their “secession”, may “exercise their rights to their foreign currency savings in a manner to be agreed upon among the successor States [of the former SFRY]”.
Pursuant to Article 21 § 2, however, other foreign nationals (non- citizens of Slovenia, Croatia, Bosnia and Herzegovina, as well as “the Former Yugoslav Republic of Macedonia”) who have deposited their savings with the banks in question, are entitled to benefit from this legislation.
Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.”
This Act has been in force since 4 July 2002.
3. Succession of the SFRY (Agreement on Succession Issues signed in Vienna on 29 June 2001)
Article 12
“This Agreement shall enter into force thirty days after the deposit of the fifth instrument of ratification. The Depositary shall notify the successor States, and the Office of the High Representative, of the date of entry into force ... ”
Annex C, Article 2
“... (3) Other financial liabilities include:
(a) guarantees by the SFRY or its National Bank of Yugoslavia of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed independence; and
(b) guarantees by the SFRY of savings deposited before certain dates with the Post Office Savings Bank at its branches in any of the Republics of the SFRY.”
Annex C, Article 7
“Guarantees by the SFRY or its NBY of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed its independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals. This negotiation shall take place under the auspices of the Bank for International Settlements.”
All successor States have ratified the Agreement, Croatia being the last country to do so, on 3 March 2004.
COMPLAINTS
The applicant complains about the non-enforcement of the final judgment adopted by the First Municipal Court in Belgrade on 16 May 1994. He further complains that he cannot use his foreign currency savings together with the interest accrued. The applicant, however, does not invoke a specific provision of the Convention or Protocols.
THE LAW
On 14 March 2006 the Court decided that notice of the application should be given to the respondent Government and that the Government should be invited to submit written observations on the admissibility and the merits of the applicant’s complaints.
On 30 June 2006 the Government’s observations were transmitted to the applicant, who was invited to appoint a legal representative and submit his observations by 11 August 2006.
Having received no reply, by a registered letter of 29 September 2006, the Court reminded the applicant that he had failed to comply with the above instructions and that no extension of the time-limit had been requested. The applicant, however, was also provided with an additional opportunity to appoint a legal representative and submit his observations, by 27 October 2006, and warned, in accordance with Article 37 § 1 (a) of the Convention, that the Court might strike his case out of its list of cases should it conclude that he did not intend to pursue the application.
The Court’s letter of 29 September 2006 was received by the applicant personally on 7 October 2006 but again there was no response.
In view of the above and having regard to Article 37 § 1 (a) of the Convention, the Court considers that the applicant does not intend to pursue the application. 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 would require the examination of the application to be continued.
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
S. DolléJ.-P. costa
RegistrarPresident
Full & Egal Universal Law Academy