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EVROPSKI SUD ZA LJUDSKA PRAVA
ČETVRTO ODJELJENJE
PREDMET TOMIĆ I DRUGI PROTIV BOSNE I HERCEGOVINE
(aplikacija br. 14284/08)
PRESUDA
STRASBOURG
15. januar 2013. godine
Ova presuda je konačna, ali može biti podložna redakcijskim izmjenama.
U predmetu Tomić i drugi protiv Bosne i Hercegovine, Evropski sud za ljudska prava (Četvrti odjel), zasijedajući u Komitetu u sastavu:
George Nicolaou, predsjedavajući,
Zdravka Kalaydjieva,
Faris Vehabović, sudije
i Fatoş Aracı, zamjenik registrara Odjela,
nakon tajnog vijećanja održanog 11. decembra 2012. godine, donio je i usvojio slijedeću presudu:
POSTUPAK
ČINJENICE
I OKOLNOSTI PREDMETA
Gđi Dobrinki Jovanović državne obveznice nisu izdane.
II RELEVANTNO DOMAĆE PRAVO I PRAKSA
PRAVO
Relevantna odredba člana 6. glasi:
“Prilikom utvrđivanja građanskih prava i obaveza ... svako ima pravo na pravičnu i javnu raspravu u razumnom roku pred nezavisnim i nepristranim, zakonom ustanovljenim sudom.”
Član 1. Protokola 1 uz Konvenciju glasi:
Svako fizičko ili pravno lice ima pravo na neometano uživanje svoje imovine. Niko ne može biti lišen svoje imovine, osim u javnom interesu i pod uslovima predviđenim zakonom i opštim načelima međunarodnog prava.
Prethodne odredbe, međutim, ni na koji način ne utječu na pravo države da primjenjuje takve zakone koje smatra potrebnim da bi nadzirala korištenje imovine u skladu s opštim interesima ili da bi osigurala naplatu poreza ili drugih doprinosa ili kazni.”
I NAVODNO KRŠENJE ČLANA 6. KONVENCIJE I ČLANA 1. PROTOKOLA br. 1 UZ KONVENCIJU
A. Dopuštenost
1. U odnosu na gđu Ružu Tomić
2. U odnosu na gđu Ljeposavu Kovačević, gosp. Marka Tomića i gosp. Janka Tomića
3.U odnosu na gđu Dobrinku Jovanović
B. Meritum
1. U odnosu na gđu Ljeposavu Kovačević, gosp. Marka Tomića i gosp. Janka Tomića
Stoga, u odnosu na ove aplikante došlo je do povrede prava iz člana 6. Konvencije i člana 1. Protokola br. 1 uz Konvenciju.
2. U odnosu na gđu Dobrinku Jovanović
Sud ne nalazi nijedan razlog za odstupanje od svoje prakse. Budući da pravosnažna presuda donesena u korist gđe Dobrinke Jovanović još uvijek nije izvršena, a situacija traje duže od deset godina (od dana kada je tužena država ratifikovala Konvenciju), Sud zaključuje, iz istih razloga koji su navedeni u presudi Čolić i drugi (gore citiran, tačka 15), da je došlo do povrede člana 6. Konvencije i člana 1. Protokola 1 uz Konvenciju u odnosu na ovu aplikanticu.
II PRIMJENA ČLANA 41. KONVENCIJE
“Ako Sud utvrdi da je došlo do povrede Konvencije i dodatnih protokola, a unutrašnje pravo zainteresovane Visoke ugovorne strane omogućava samo djelomičnu odštetu, Sud će, prema potrebi, dodijeliti pravičnu naknadu oštećenoj strani.”
IZ NAVEDENIH RAZLOGA, SUD JEDNOGLASNO
Sačinjeno na engleskom jeziku i otpremljeno 15. januara 2013. godine u skladu s Pravilom 77 st. 2 i 3 Pravila Suda.
Fatoş Aracı George Nicolaou
zamjenik registrara predsjedavajući
___________________________________
Prevod presude preuzet sa https://hudoc.echr.coe.int/
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
1. 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.
2. The Government of Bosnia and Herzegovina Government (“the Government”) were represented by their Agent, Ms M. Mijić.
3. 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.
4. 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
5. The applicants were born in 1932, 1954, 1957, 1963 and 1963, respectively and live in Milići.
6. 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)[1], 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).
7. 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).
8. 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
9 The relevant domestic law and practice were outlined in Čolić and Others (cited above, §§ 10-12) and Runić and Others (cited above, § 11).
10. On 13 January 2012 the Domestic Debt Act 2012[2] entered into force, thereby repealing the Domestic Debt Act 2004[3]. 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
11. 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
12. 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
13. 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.
14. 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.
15. 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
16. 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
17. 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
18. 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
19. 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
20. 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.
21. 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 and45219/04, § 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
[1]1. The convertible mark uses the same fixed exchange rate to the euro as the German mark: EUR 1 = BAM 1.95583.
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