FOURTH SECTION
CASE OF
TOMIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
(Application no.
14284/08)
JUDGMENT
STRASBOURG
15 January 2013
This judgment is final but it may be subject to editorial
revision.
In the case of Tomić 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 an application (no.
14284/08) 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 five citizens of Bosnia and Herzegovina, Ms Ruža
Tomić, Ms Ljeposava Kovačević, Ms Dobrinka Jovanović, Mr
Marko Tomić and Mr Janko Tomić (“the applicants”), on 18 February
2008.
The Government of Bosnia and Herzegovina
Government (“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 the President of
the Fourth Section decided to give notice of the application 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 were born in 1932, 1954, 1957,
1963 and 1963, respectively and live in Milići.
On 13 March 2001 the Srebrenica First Instance
Court ordered the Republika Srpska (an Entity of Bosnia and Herzegovina) to pay the
applicants 31,500 convertible marks (BAM), within 15 days, in
respect of war damage together with default interest at the statutory rate.
That judgment became final on 20 April 2001. On 1 April 2002 the Banja Luka
District Court issued a writ of execution (rješenje o izvršenju).
The applicants complained of
non-enforcement to the Constitutional Court of Bosnia and
Herzegovina (“the Constitutional Court”). On 26 June 2007 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol
No. 1. 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; and 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), on 18 January
2010 Ms Ljeposava Kovačević, Mr Marko Tomić and Mr Janko
Tomić informed the authorities that they agreed to be paid only the legal
costs in cash and the principal debt and default interest in bonds. On 15 June
2010 government bonds were issued to them. They have already sold some or all
of their bonds on the Stock Exchange
Ms Dobrinka Jovanović was not issued government bonds.
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 the applicants who were issued government bonds, Ms Ljeposava
Kovačević, Mr Marko Tomić and Mr Janko Tomić, the
applicable provisions are those from the Domestic Debt Act 2004, which was in
force at the time bonds were issued. As regards Ms Dobrinka Jovanović, she
did not accept issuance of bonds in lieu of cash as means of
enforcement.
THE LAW
The applicants complained of the non-enforcement
of the final domestic judgment of 13 March 2001. 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. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
A. Admissibility
1. As regards Ms Ruža Tomić
In their observations of 9 December 2010 the
Government informed the Court that Ms Ruža Tomić had
died. On 16 February 2011 that information was sent to the remaining applicants
in the present case, 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 in so far as it was brought by Ms Ruža Tomić 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
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 Ruža
Tomić (see Erol Direkçi and Ergül Direkçi v. Turkey (dec.), no. 47826/99, 31 March 2005).
2. As regards Ms Ljeposava Kovačević, Mr
Marko Tomić and Mr Janko Tomić
The Government submitted that these 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 these applicants have already sold all or
some of their bonds on the Stock Exchange 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 (paragraph 7 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.
3. As regards Ms Dobrinka Jovanović
The Court notes that this applicant’s 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.
B. Merits
1. As regards Ms Ljeposava Kovačević, Mr
Marko Tomić and Mr Janko Tomić
The Court notes that the present case, in
respect of these applicants, 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 judgment in issue in the present case (almost eight
years after the date of ratification of the Convention by the respondent
State), 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 in respect of
these applicants.
2. As regards Ms Dobrinka Jovanović
The Court notes that the present case, in
respect of this applicant, 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 favour of Ms Dobrinka Jovanović 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 in respect of this applicant.
II. 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 applicants 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 Ms Dobrinka
Jovanović, 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 13 March 2001 in so far as it concerns Ms
Dobrinka Jovanović (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).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to strike the applications out of
its list of cases in respect of Ms Ruža Tomić;
2. Declares the remainder of the case admissible;
3. 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 the final judgment of 13 March 2001 in respect of Ms Ljeposava
Kovačević, Mr Marko Tomić and Mr Janko Tomić;
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 non-enforcement of the final judgment of 13 March 2001 in respect of
Ms Dobrinka Jovanović;
5. Holds that the respondent State is to secure
enforcement of the final judgment of 13 March 2001 in respect of Ms Dobrinka
Jovanović, within three months.
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
