CASE OF JELIČIĆ v. BOSNIA AND HERZEGOVINA
Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste
7. The applicant was born in 1953 and lives in Banja Luka. 8. Between 7 January 1977 and 31 January 1983 the applicant deposited in total 70,140 German marks (DEM) in her savings account at the then State-owned Privredna banka Sarajevo Filijala Banja Luka. In Bosnia and Herzegovina, as well as in other successor States of the former Socialist Federal Republic of Yugoslavia (“SFRY”), such savings are commonly referred to as “old” foreign-currency savings, having been deposited prior to the dissolution of the SFRY. The relevant background information on this subject is set out in detail in the Chamber’s decision on the admissibility of the present application (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII). 9. On 31 December 1991 the balance in the applicant’s account, which included accrued interest, was DEM 235,924 (in the former SFRY, foreign-currency deposits earned high interest). 10. On several occasions in 1992 and 1993, the applicant managed to withdraw in total DEM 9,352, regardless of statutory restrictions which had been introduced in the late 1980s. 11. On 3 October 1997 the applicant initiated civil proceedings against the Banjalučka banka, the legal successor of the Privredna banka Sarajevo Filijala Banja Luka, seeking the recovery of her entire “old” foreign-currency savings and accrued interest. 12. On 26 November 1998 the Banja Luka Court of First Instance established that the balance in the applicant’s account indicated above was DEM 295,274, including accrued interest. The court also found that the applicant had DEM 4,896 in another account at the same bank. The Banjalučka banka was ordered to pay the applicant, within 15 days, DEM 300,170 (approximately 153,475 euros (EUR)), default interest on the above amount at the rate applicable in the country of the currency (namely Germany) from 3 October 1997, legal costs in the amount of 9,076 dinars (approximately EUR 290) and default interest on the last-mentioned amount at the statutory rate from the date of the judgment. 13. On 5 February 1999 the Banja Luka Court of First Instance mistakenly held that the Banjalučka banka had not appealed against the judgment of 26 November 1998 and accordingly issued a writ of execution (rješenje o izvršenju). On 25 February 1999 the Banja Luka Court of First Instance established that an appeal had in fact been submitted. On 4 November 1999 the Banja Luka District Court rejected that appeal and the first-instance judgment of 26 November 1998 therefore became enforceable. 14. Meanwhile, the applicant filed an application with the Human Rights Ombudsperson, who referred the application to the Human Rights Chamber (the human rights bodies set up by Annex 6 to the 1995 General Framework Agreement for Peace). 15. On 12 January 2000 the Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 arising from a failure to enforce the judgment of 26 November 1998. The Human Rights Chamber held the Republika Srpska responsible and ordered it to ensure full enforcement without further delay. 16. After the Banjalučka banka had failed to execute the judgment voluntarily, on 22 March 2000 the competent court sent a fresh writ of execution to the Republika Srpska Payment Bureau (Služba za platni promet Republike Srpske). 17. On 28 July 2000 the Supreme Court of the Republika Srpska rejected an appeal on points of law (revizija) against the judgment of 26 November 1998. 18. On 8 November 2000 the writ of execution was returned to the competent court, execution having been impossible on account of a statutory prohibition (see paragraph 24 below). 19. On 30 January 2001 the applicant converted part of her savings (DEM 20,000) into privatisation coupons under the Privatisation of Companies Act 1998. She subsequently sold those coupons on the secondary market, allegedly for DEM 9,000. 20. On 18 January 2002 the privatisation of the Banjalučka banka was completed and the applicant’s “old” foreign-currency savings became a public debt of the Republika Srpska pursuant to section 20 of the Opening Balance Sheets Act 1998. 21. On 7 March 2002 and 9 February 2004 the applicant converted a further part of her savings (EUR 20,452 in total) into privatisation coupons as before. She subsequently sold those coupons on the secondary market, allegedly for EUR 8,794 in total. 22. On 15 April 2006 Bosnia and Herzegovina took over the debt arising from “old” foreign-currency savings from its constituent units pursuant to section 1 of the Old Foreign-Currency Savings Act 2006. 23. The judgment of 26 November 1998 has not yet been enforced. 24. Enforcement of such judgments has been prevented in the Republika Srpska since 3 May 1996 in accordance with the relevant instructions of the government of the Republika Srpska (Odluka o obustavljanju isplate “stare” devizne štednje, Official Gazette of the Republika Srpska (“OG RS”) no. 10/96 of 27 May 1996, and Zaključak, OG RS no. 24/99 of 4 October 1999) and the following legislation: (a) The Foreign-Currency Transactions Act 1996 (Zakon o deviznom poslovanju, OG RS no. 15/96 of 8 July 1996, amendments to which were published in OG RS no. 10/97 of 30 April 1997); (b) The Postponement of Enforcement Act 2002 (Zakon o odlaganju od izvršenja sudskih odluka na teret sredstava budžeta Republike Srpske po osnovu isplate naknade materijalne i nematerijalne štete nastale uslijed ratnih dejstava i po osnovu isplate stare devizne štednje, OG RS no. 25/02 of 20 May 2002, amendments to which were published in OG RS no. 51/03 of 1 July 2003); (c) The Foreign-Currency Transactions Act 2003 (Zakon o deviznom poslovanju, OG RS no. 96/03 of 24 November 2003); (d) The Temporary Postponement of Enforcement Act 2003 (Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, OG RS no. 110/03 of 20 December 2003); (e) The Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, OG RS no. 63/04 of 15 July 2004, amendments to which were published in OG RS no. 47/06 of 11 May 2006); and (f) The Old Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare devizne štednje, Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 28/06 of 14 April 2006 – “the 2006 Act”). 25. In accordance with section 20 of the Opening Balance Sheets Act 1998 (Zakon o početnom bilansu stanja u postupku privatizacije državnog kapitala u bankama, OG RS no. 24/98 of 15 July 1998, amendments to which were published in OG RS no. 70/01 of 31 December 2001), as amended, liability for any debt arising from “old” foreign-currency savings shifts from the bank in which the savings have been deposited to the Republika Srpska upon the completion of the bank’s privatisation. 26. On 15 April 2006 Bosnia and Herzegovina took over from its constituent units the debt arising from “old” foreign-currency savings (section 1 of the 2006 Act). 27. The 2006 Act has been in force since 15 April 2006. The following are its relevant provisions. “(1) This Act defines the procedure, manner and deadlines for the fulfilment of the obligations of Bosnia and Herzegovina arising from old foreign-currency savings deposited in local banks in the territory of Bosnia and Herzegovina. (2) While Bosnia and Herzegovina shall be responsible for the fulfilment of obligations arising from old foreign-currency savings, the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District of Bosnia and Herzegovina shall provide the means. ... (4) In accordance with the 2001 Agreement on Succession Issues, successor States to the former Socialist Federal Republic of Yugoslavia shall be liable for foreign-currency accounts opened at banks which had their seat in their respective territories. Bosnia and Herzegovina shall provide assistance, within the scope of its international activities, to the holders of such foreign-currency accounts ... (5) Bosnia and Herzegovina shall fulfil its obligations defined in paragraphs 1 and 2 above following a verification process.” “(1) Under this Act, old foreign-currency savings are foreign-currency savings in banks located in the territory of Bosnia and Herzegovina as at 31 December 1991, including interest earned until that date, less any payment after that date and any funds transferred to special privatisation accounts. (2) Old foreign-currency savings defined in paragraph 1 above shall not include foreign-currency savings in branch offices located in the territory of Bosnia and Herzegovina of the Ljubljanska banka, Invest banka or other foreign banks.” “According to preliminary data ... old foreign-currency savings amount to 1,979,000,000 Bosnian markas. The amount shall be determined in the verification process.” “Any interest accrued after 1 January 1992 but not paid shall be cancelled. Interest for the period between 1 January 1992 and the entry into force of this Act shall be calculated afresh at an annual rate of 0.5%.” “The fulfilment of obligations arising from old foreign-currency savings, if not verified in accordance with this Act, can only be requested in court proceedings.” “... (2) Following the verification process, each claimant shall be provided with a certificate which identifies him or her and the amount of his or her old foreign-currency savings. (3) The certificate referred to in paragraph 2 above ... shall include, inter alia, the following: ... (c) a statement that the claimant will renounce any legal action following a cash payment; ...” “... (5) Following the verification process, a written decision shall be given to each claimant. (6) It shall be permitted to appeal against a [first-instance] decision to the [competent second-instance body]. It shall be permitted to pursue an administrative dispute before the competent court against a [second-instance] decision. (7) The legislation concerning administrative procedure of the Entities and District shall apply to the verification process.” “An application for verification can be submitted by [16 October 2006] and the verification process shall be completed by [15 January 2007].” “... (2) Should the claimant accept the amount determined in the verification process, the claimant shall sign a verification certificate. Following the claimant’s waiver of the right to appeal, a maximum of 100 Bosnian markas, or the total amount of savings lower than 100 Bosnian markas, shall be paid ... (3) Furthermore, by the end of 2007 a maximum of 1,000 Bosnian markas, or the total amount of savings lower than 1,000 Bosnian markas, shall be paid. The remaining amount shall be reimbursed in State bonds in accordance with this Act ... ...” “... All State bonds shall be issued at the same time ... at the latest by 31 March 2008 on the following conditions: (a) they shall become due within no more than thirteen years and at the latest by 31 December 2020 ...; (b) they shall earn interest at an annual rate of 2.5%; (c) they shall be redeemable before their maturity.” “(1) Final judicial decisions concerning old foreign-currency savings shall also be subject to verification ... (2) ... The provisions of this Act concerning the cancellation of interest, cash payments and State bonds shall apply.” “The competent court shall of its own motion submit any pending case to the verification process in accordance with this Act.” 28. This Act was in force from 23 July 1998 until 25 May 2006. The following were the relevant provisions: “A person who has ‘old’ foreign-currency savings in a bank located in the Republika Srpska and who is a citizen of the Republika Srpska at the date of the entry into force of this Act shall be entitled to coupons for the purchase of shares pursuant to this Act. A person who is entitled to coupons in accordance with this section may decide to convert into coupons his or her entire savings or a part thereof.” The privatisation coupons acquired in accordance with the above provisions were transferable; this included the possibility of selling them on the secondary market (section 22(2)). Any conversion into privatisation coupons was irrevocable (section 25(3)). 29. This Act has been in force since 12 November 2004. Section 10(3) provides that “old” foreign-currency savings may be used for the purchase of State-owned business premises and garages on condition that a minimum of 40% of the price is paid in cash. 30. In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine, OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments to which were published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004 and 30/05 of 17 May 2005), non-enforcement of a final and enforceable decision of the former Human Rights Chamber amounts to a criminal offence: “Any official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.”