FOURTH SECTION
DECISION
Application no. 18804/04
by Josip ZADRIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 16 November 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 6 May 2004,
Having regard to the decision to apply the pilot-judgment procedure and to adjourn its consideration of applications deriving from the same systemic problem identified in the case of Suljagić v. Bosnia and Herzegovina (no. 27912/02, 3 November 2009),
Having deliberated, decides as follows:
THE FACTS
The applicant, Josip Zadrić, is a citizen of Bosnia and Herzegovina who was born in 1933 and lives in Hadžići. He was represented before the Court by Mr Zorislav Zadrić, a lawyer practising in Hadžići.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Prior to the dissolution of the Socialist Federal Republic of Yugoslavia (“the SFRY”) the applicant deposited foreign currency in his three bank accounts at the then Privredna banka Sarajevo – Osnovna banka Sarajevo (in what is today the Federation of Bosnia and Herzegovina). In Bosnia and Herzegovina, as well as in other successor States of the SFRY, such savings are commonly referred to as “old” foreign-currency deposits (for the relevant background information see Suljagić, cited above, §§ 6–19).
After several failed attempts to withdraw his funds, on 17 March 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace).
By a decision of 8 October 2003 (decision CH/98/377 et al.), the Human Rights Chamber found the legislation at the time to be contrary to Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests) and awarded the applicant 2,000 convertible marks (BAM)[1], to be deducted from his savings.
On 10 October 2006 the competent verification agency assessed the amount of the applicant’s “old” foreign-currency savings at BAM 37,820.52.
B. Relevant domestic law and practice
The relevant domestic law and practice were outlined in Suljagić (cited above, §§ 26-32).
COMPLAINT
The present case is fundamentally, like Suljagić, about the compliance of the domestic legislation on “old” foreign-currency savings with the conditions laid down by Article 1 of Protocol No. 1 to the Convention.
THE LAW
The object of the Court’s designating a case for a “pilot-judgment procedure” is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention right in question in the national legal order. One of the relevant factors considered by the Court in devising and applying that procedure has been the growing threat to the Convention system resulting from large numbers of repetitive cases that derive from, among other things, the same structural or systemic problem.
The pilot-judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned their Convention rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress but also, at the same time, making it unnecessary for the Court to adjudicate on large numbers of applications similar in substance which it would otherwise have to take to judgment (Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007‑XIV).
Turning to the present case, on 3 November 2009 the Court adopted a pilot judgment concerning “old” foreign-currency savings in banks based in Bosnia and Herzegovina (see Suljagić, cited above). While the Court considered the domestic legislation on “old” foreign-currency savings to be compatible as such with Article 1 of Protocol No. 1, it found a violation of that Article with respect to delays in the implementation of that legislation in the Federation of Bosnia and Herzegovina and the Brčko District. The relevant part of the pilot judgment (see § 55) reads as follows:
“Whereas the Court finds the current legislation as such compatible with Article 1 of Protocol No. 1, it agrees with the applicant that its state of implementation is unsatisfactory. While in the Republika Srpska no delays were alleged, the same is not true for the Federation of Bosnia and Herzegovina and the Brčko District. In the Brčko District, government bonds, although due on 31 March 2008, were issued only on 30 June 2009. In the Federation of Bosnia and Herzegovina, it appears that bonds, likewise due on 31 March 2008, have not yet been issued. As a result, the applicant is still unable to sell them on the Stock Exchange and thus obtain early cash payments (see paragraph 53 above). Moreover, the instalments due under the current legislation on 27 September 2008 were paid almost three months later (on 24 December 2008) in the Brčko District and almost eight months later (on 14 May 2009) in the Federation of Bosnia and Herzegovina. Similarly, the instalment due on 27 March 2009 was paid almost three months later (on 11 June 2009) in the Brčko District and has not yet been paid in the Federation of Bosnia and Herzegovina.”
In view of the systemic situation which it had identified, the Court observed that general measures at national level were undoubtedly called for in execution of the pilot judgment. In particular, the Court considered that government bonds had to be issued and any outstanding instalments had to be paid in the Federation of Bosnia and Herzegovina within six months from the date on which the pilot judgment had become final (that is, by 3 August 2010). Furthermore, within the same time-limit, the Federation of Bosnia and Herzegovina had to undertake to pay default interest at the statutory rate in the event of late payment of any forthcoming instalments (see Suljagić, cited above, § 64). Lastly, the Court considered that the respondent State had to ensure that the relevant deadlines were extended for at least six months from the date on which the pilot judgment had become final to enable everyone to obtain a verification certificate (ibid., § 65 (ii)).
At its 1092nd meeting (DH) of 14-15 September 2010, the Committee of Ministers of the Council of Europe, by virtue of Article 46 of the Convention, noted that the measures requested by the Court in the pilot judgment appeared to have been taken (see document CM/Del/OJ/DH(2010)1092 Section 6.1):
“The Federation issued government bonds intended for the repayment of the ‘old’ foreign currency savings, which have been covered by the verification certificates. The Federation government took decisions ordering the first issue of those bonds on 21/10/2009 and the second issue on 24/03/2010. Those decisions have been published in the Federation Official Gazette, Nos. 67/2009 and 17/2010.
The Federation government also took a decision ordering the payment of the outstanding instalments due on 27/03/2009 and 27/09/2009. The decision was published in the Federation Official Gazette No. 17/2010. These instalments concerned the payment of interest on the bonds (see also §25 of the judgment). The actual payment of the instalments took place on 16/07/2010.
The relevant deadlines have been extended to enable those who have not yet obtained a verification certificate in respect of their ‘old’ foreign savings to obtain it. The deadline has been extended in the Republika Srpska by 31/12/2010, in the Federation by 03/08/2010 and in the Brčko District by 15/10/2010. The respective decisions have been published in the official gazettes of both entities and the Brčko District.
On 29/04/2010 the Federation government adopted a decision to the effect that the Federation should pay default interest at the statutory rate in the event of late payment of any forthcoming instalment.
...
It appears that the authorities of Bosnia and Herzegovina have taken all necessary measures to comply with this pilot judgment.”
The Court sees no reason to depart from the Committee of Minister’s finding and, accordingly, concludes that the matter has been resolved for the purposes of Article 37 § 1 (b) of the Convention (compare Wolkenberg and Others, cited above, § 77).
While it is true that the applicant suffered some non-pecuniary damage because of the past delays, the Court held in Suljagić (see § 64) that it was not necessary to order that adequate redress be awarded to all persons affected. Moreover, the applicant has already received a part of his foreign-currency savings pursuant to the Human Rights Chamber’s decision of 8 October 2003 which must have alleviated his distress to some extent. The Court would recall that having regard to the purpose of the pilot-judgment procedure explained above, its role after the delivery of the pilot judgment and after the State has implemented the general measures in conformity with the Convention cannot be converted into providing individualised financial relief in repetitive cases arising from the same systemic situation (see Wolkenberg and Others, cited above, § 76).
In view of the above, the Court finds that its further examination of the present application is no longer justified. 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 require the continued examination of the case. As regards the hundreds of similar pending applications, the Court may strike them out of its list of cases in the single-judge procedure in accordance with Article 27.
This conclusion is, however, without any prejudice to the Court’s power to restore, pursuant to Article 37 § 2, the present or any other similar application to the list of cases if the circumstances, in particular the future implementation of the legislation on “old” foreign-currency savings, justify such a course.
For these reasons, the Court unanimouslyDecides to strike the application out of its list of cases;Decides to close the pilot-judgment procedure applied in respect of the applications concerning the “old” foreign-currency savings in the case of Suljagić v. Bosnia and Herzegovina (no. 27912/02).
Lawrence EarlyNicolas Bratza
RegistrarPresident
[1] The convertible mark (BAM) uses the same fixed exchange rate to the euro (EUR) that the German mark (DEM) has (EUR 1 = BAM 1.95583).
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