FOURTH SECTION
CASE OF
JANJIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Applications nos.
29760/06, 48249/07, 4707/08 and 17792/10)
JUDGMENT
STRASBOURG
15 January 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Janjić and Others v. Bosnia and Herzegovina,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
George Nicolaou, President,
Zdravka Kalaydjieva,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in four applications
(nos. 29760/06, 48249/07, 4707/08 and 17792/10) against Bosnia and
Herzegovina lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by nine
citizens of Bosnia and Herzegovina, Mr Jovan Janjić, Mr Nedeljko
Brborović, Mr Milenko Brborović, Ms Branislavka Brborović,
Ms Vojka Kandić, Mr Miloš Kandić, Ms Mirjana Kandić, Ms
Slavojka Kandić and Mr Draženko Zavišić (“the applicants”),
between 12 July 2006 and 19 February 2010.
Mr Nedeljko Brborović, Mr Milenko
Brborović and Ms Branislavka Brborović were represented by Ms Radmila
Plavšić and Mr Ranko Vulić, lawyers
practising in Banja Luka. Mr Draženko Zavišić was represented by Mr
Đorđe Marić, a lawyer practising in Banja Luka. The Government
of Bosnia and Herzegovina (“the Government”) were represented by their Agent,
Ms M. Mijić.
This case is, like Čolić and Others
v. Bosnia and Herzegovina, nos. 1218/07 et al., 10 November 2009, and Runić and Others v. Bosnia and Herzegovina,
nos. 28735/06 et al., 15
November 2011, about the non-enforcement
of final and enforceable domestic judgments awarding war damages to the
applicants.
On 30 August 2010 (applications nos. 29760/06,
48249/07 and 4707/08) and on 4 July 2011 (application no. 17792/10) the
President of the Fourth Section decided to give notice of the applications to
the Government. It was also decided to rule on the admissibility and merits of
the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants live in Bosnia
and Herzegovina.
By five judgments of different
courts of first instance (the application no. 48249/07 concerns the
non-enforcement of two judgments) of 22 January 2003, 5 October 1999, 25
June 2002, 19 December 2000 and 11 January 2000 which became final on 17
September 2003, 1 June 2001, 6 December 2004, 22 February 2001, 7 April
2004, respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina)
was ordered to pay, within 15 days, the following amounts in convertible marks
(BAM) in respect of war damage
together with default interest at the statutory rate:
(i) BAM 5,555.25 in respect of pecuniary damage and BAM 881 in
respect of legal costs to Mr Jovan Janjić;
(ii) BAM 1,500 in respect of pecuniary damage and BAM 20,000
in respect of non-pecuniary damage to the Kandićs;
(iii) BAM 20,000 in respect of non-pecuniary damage, BAM 400
in respect of pecuniary damage and BAM 2,986.80 in respect of legal costs to
the Brborovićs (this is the total amount awarded by the domestic judgments
of 5 October 1999 and 25 June 2002); and
(iv) BAM 28,500 in respect of non-pecuniary damage and BAM
2,015 in respect of legal costs to Mr Draženko Zavišić.
The Banja Luka Court of First Instance issued
writs of execution (rješenje o izvršenju) on 27 August 2001, 22 December
2006, 12 October 2001 and 9 July 2004, respectively. In the case of Mr Jovan Janjić
no writ of execution was issued.
The applicants, except for Mr
Jovan Janjić, complained of non-enforcement to the Human Rights
Chamber or to the Constitutional Court. On 8 March 2006 the Human
Rights Commission (the legal successor of the Human Rights Chamber) found a
breach of Article 6 of the Convention and Article 1 of Protocol No. 1 in the
case of the Brborovićs. On 20 December 2005 and 26 June 2007 the Constitutional Court ruled likewise in the case of the Kandićs and Mr Draženko Zavišić. The
applicants did not claim compensation, but even if they had done so, their
claim would have most likely been refused (see, for example, the Constitutional
Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April
2006, § 195; AP 1211/06 of 13 December 2007, § 79; AP 244/08 of 8
December 2010, § 37).
After the extensive information campaign
explaining the available options for the settlement of the Republika Srpska’s
public debt (including its debt arising from domestic judgments), between 31
March 2008 and 26 May 2009 the applicants informed the authorities that
they agreed to be paid only the legal costs in cash and the principal debt and
default interest in bonds. Government bonds were then issued on the following
dates:
(i) on 7 October 2010 to Mr Jovan Janjić;
(ii) on 30 October 2009 to Mr Nedeljko Brborović and
MsBranislavka Brborović (in respect of the judgment of 25 June 2002);
(iii) on 15 December 2008 to Ms Vojka Kandić, Mr Miloš Kandić
and Ms Mirjana Kandić; and
(iv) on 30 October 2009 to Mr Draženko Zavišić.
Ms Vojka Kandić, Mr Miloš
Kandić and Ms Mirjana Kandić have already sold all of their bonds on
the Stock Exchange.
Mr Nedeljko Brborović and Mr Milenko
Brborović were not issued bonds in respect of the judgment of 5 October
1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice were
outlined in Čolić and Others (cited above, §§ 10-12) and Runić
and Others (cited above, § 11).
On 13 January 2012 the Domestic Debt Act 2012
entered into force, thereby repealing the Domestic Debt Act 2004.
As regards the payment of war damage, it envisages the same solution as the old
Act, with the change in the maturity of government bonds which is now 13 years
instead of 14 years. The new Act is, however, irrelevant for the present
case: as regards those applicants who were issued government bonds, the
applicable provisions are those from the Domestic Debt Act 2004, which was in
force at the time the bonds were issued; and the other applicants did not
accept issuance of bonds in lieu of cash as means of enforcement,
therefore, the new Act is also irrelevant.
THE LAW
The applicants complained of the non-enforcement
of the judgments indicated in paragraph 6 above. The case was examined by the
Court under Article 6 of the Convention and Article 1 of Protocol No. 1.
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.”
I. JOINDER OF THE
APPLICATIONS
Given their common factual and legal background, the Court decides that these
four applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF
ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
A. Admissibility
1. As regards Ms
Slavojka Kandić
In their observations of 9 December 2010 the
Government informed the Court that Ms Slavojka Kandić had died. That
information was sent to the remaining applicants in the application no. 4707/08
on 16 February 2011, who are her close relatives. They did not dispute that
fact nor did they submit a request to pursue that applicant’s case. In these
circumstances, the Court concludes that it is no longer justified to continue
the examination of the application no. 4707/08 in so far as it was brought by
Ms Slavojka Kandić within the meaning of Article 37 § 1 (c)
of the Convention. Furthermore, the Court finds no reasons of a general nature,
as defined in Article 37 § 1 in fine,
which would require the examination of this part of the application no. 4707/08
by virtue of that Article (contrast Karner v. Austria, no. 40016/98,
§§ 20-28, ECHR 2003-IX). It therefore decides to strike the application out of
its list of cases in so far as it was brought by Ms Slavojka Kandić
(see Erol Direkçi and Ergül Direkçi v. Turkey (dec.), no.
47826/99, 31 March 2005).
2. As regards the non-enforcement
of the judgment of 5 October 1999 (in respect of Mr Nedeljko Brborović and
Mr Milenko Brborović)
By the judgment of 5 October 1999 the Republika Srpska was ordered to pay 400 BAM in respect
of pecuniary damage to Mr Nedeljko Brborović and BAM 4,000 in respect of
non-pecuniary damage to Mr Milenko Brborović. That judgment became
final on 27 August 2001. It remains unenforced to this day. The Court notes
that this complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention and that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
3. As
regards the remainder of the case
The Government submitted that the applicants
could no longer claim to be victims within the meaning of Article 34 of the
Convention after the domestic judgments in question had been enforced partly in
cash (the legal costs) and partly in government bonds (the principal debt and
the associated default interest). The applicants disagreed.
The Court recalls that in its leading judgment
concerning this issue (Čolić and Others, cited above) it found
a breach of Article 6 and of Article 1 of Protocol No. 1 regardless of the fact
that those applicants had also been offered government bonds in lieu of
cash as a means of enforcement. The respondent State enforced the judgments
under consideration in that case in cash and undertook to so enforce a number
of other similar judgments (see Momić and Others v. Bosnia and
Herzegovina (dec.), no. 28730/06, 17 May 2011). However, it
should be emphasised that none of the applicants in those cases, unlike the present
applicants, had accepted government bonds. The present case must therefore be
distinguished from the Čolić and Others jurisprudence. Given
further that some of the present applicants have already sold their bonds on
the Stock Exchange (see paragraph 10 above) and that the legal costs awarded to
them have already been paid in cash, the Court considers the impugned domestic
judgments to have been enforced.
That being said, the Court has always held that a
decision or measure favourable to an applicant is not in principle sufficient
to deprive him of his victim status unless the national authorities have
acknowledged the alleged breach and afforded appropriate and sufficient redress
(see Scordino v. Italy (no. 1)
[GC], no. 36813/97, §§ 180 and 193, ECHR 2006-V). One of the features
of such redress is the amount awarded by the national authorities (see Kudić
v. Bosnia and Herzegovina, no. 28971/05, § 17, 9 December 2008). While it
is true that the national authorities expressly acknowledged the breach alleged
in the present case, the applicants were not able to obtain any compensation in
respect of the delayed enforcement of the judgments (see paragraph 8 above).
Therefore, they may still claim to be victims within the meaning of Article 34
of the Convention in relation to the period during which the judgments remained
unenforced (see Dubenko v. Ukraine, no. 74221/01, § 36, 11 January
2005). The Court thus rejects the Government’s objection.
The Court further notes that the applications are neither
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention nor inadmissible on any other grounds. It accordingly declares them
admissible.
B. Merits
1. As regards the non-enforcement of the judgment of 5
October 1999 (in respect of Mr Nedeljko Brborović and Mr Milenko Brborović)
The Court notes that this complaint is identical
to Čolić and Others (cited above), in which the Court found
violation of Article 6 and Article 1 of Protocol No. 1, due to the
non-enforcement of final and enforceable domestic judgments awarding war
damages to the applicants.
The Court does not see any reason to depart from that jurisprudence.
Since the final judgment in respect of these applicants has not yet been
enforced and the situation has already lasted more than ten years (since the
ratification of the Convention by the respondent State), the Court concludes,
for the same reasons as set out in Čolić and Others (cited
above, § 15), that there has been a breach of Article 6 of the Convention and Article
1 of Protocol No. 1 to the Convention.
2. As regards the remainder of the case
The Court notes that the present case is
practically identical to Runić and Others (cited above) in which the
Court found a violation of Article 6 of the Convention as well as a violation
of Article 1 of Protocol No. 1 to the Convention. Considering the length of the period of non-enforcement
of the judgments in issue in the present case (between three and more
than seven years after the date of ratification of the Convention by Bosnia and Herzegovina), and having examined all relevant
circumstances, the Court does not see any reason to depart from its previous case-law.
There has accordingly been a breach of Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The Brborovićs and the Kandićs did not
submit a claim for just satisfaction. Accordingly, the Court considers that
there is no call to award them any sum on that account.
It must, however, be noted that a judgment in
which the Court finds a violation of the Convention or of its Protocols imposes
on the respondent State a legal obligation not just to pay those concerned the
sums awarded by way of just satisfaction, but also to choose, subject to
supervision by the Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in its domestic legal order to put an end to
the violation found (see Pralica v. Bosnia and Herzegovina, no.
38945/05, § 19, 27 January 2009, and the authorities citied therein). Having
regard to its finding in the instant case in respect of Mr Nedeljko Brborović
and Mr Milenko Brborović, and without prejudice to any other measures
which may be deemed necessary, the Court considers that the respondent State must
secure the enforcement of the final judgment of 5 October 1999 in their favour (see
Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 53, ECHR
2006-XII, and Pejaković and Others v. Bosnia and Herzegovina,
nos. 337/04, 36022/04 and 45219/04, § 31, 18 December 2007).
Mr Jovan Janjić submitted his claim for just satisfaction two months
after the expiration of the time-limit set by the Court. The Court will,
nonetheless, examine it as it would appear that the applicant’s delay was
justified (late delivery of the Court’s letter). He claimed 26,870.42 euros
(EUR) in respect of pecuniary damage (for destroyed motor vehicle together with
the statutory interest). The Government considered the claim to be unjustified
because the pecuniary damage in respect of that vehicle had already been
granted to the applicant by the final domestic decision of 22 January
2003, whose enforcement he sought before the Court. The Court agrees with the
Government and therefore rejects this claim.
Finally, Mr Draženko Zavišić claimed EUR
2,000 in respect of non-pecuniary damage. The Government considered the
amount claimed to be excessive. The Court considers that the applicant
sustained some non-pecuniary loss arising from the breaches of the Convention
found in this case. Making its assessment on an equitable basis, as required by
Article 41 of the Convention, and having regard to the amounts awarded in Čolić
and Others (cited above, § 21), the Court awards the applicant EUR 1,500
in respect of non-pecuniary damage, plus any tax that may be chargeable
thereon.
B. Costs and expenses
Mr Jovan Janjić
claimed EUR 450.63 for the costs and expenses incurred before the domestic
courts. Other applicants did not claim any costs of expenses.
The Government considered the amount claimed to
be excessive.
In accordance with the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. That is to say, the applicant must have paid
them, or be bound to pay them, pursuant to a legal or contractual obligation,
and they must have been unavoidable in order to prevent the breaches found or
to obtain redress. The Court requires itemised bills and invoices that are
sufficiently detailed to enable it to determine to what extent the above
requirements have been met. In the present case, regard being had that no bills
and invoices have been submitted by the applicant, the Court rejects the claim
for costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join
the applications;
2. Decides to strike the application no. 4707/08 out of
its list of cases in respect of Ms Slavojka Kandić;
3. Declares the application no. 4707/08 in
respect of Ms Vojka Kandić, Mr Miloš Kandić and Ms Mirjana
Kandić, and the other three applications admissible;
4. Holds that there has been a violation of
Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention
due to the delayed enforcement of final domestic judgments under consideration
in the present case in respect of Mr Jovan Janjić, Mr Nedeljko Brborović,
Ms Branislavka Brborović, Ms Vojka Kandić, Mr Miloš Kandić,
Ms Mirjana Kandić and Mr Draženko Zavišić;
5. Holds that there has been a violation of
Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention
due to the non-enforcement of a final domestic judgment in favour of Mr
Nedeljko Brborović and Mr Milenko Brborović;
6. Holds that the
respondent State is:
(a) to secure enforcement of
the domestic judgment of 5 October 1999 in favour of Mr Nedeljko
Brborović and Mr Milenko Brborović within three
months; and
(b) to pay Mr Draženko Zavišić,
within three months, EUR 1,500 (one thousand five hundred euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be converted
into convertible marks at the rate applicable at the date of settlement;
(c) that from the expiry of
the above-mentioned three months until settlement simple interest shall be
payable on the above amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George
Nicolaou
Deputy Registrar President
