FOURTH SECTION

CASE OF ĐURIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

( Applications nos. 79867/12 , 79873/12, 80027/12, 80182/12, 80203/12 and 115/13 )

JUDGMENT

STRASBOURG

20 January 2015

FINAL

20/04/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Đurić and Others v. Bosnia and Herzegovina ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Faris Vehabović , judges,

and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 16 December 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in six applications (nos. 79867/12 , 79873/12, 80027/12, 80182/12, 80203/12 and 115/13 ) 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 18 citizens of Bosnia and Herzeg ovina , Ms Stojanka Đurić , Ms Željka Đurić , Mr Miloš Đurić , Ms Cvijeta Bošnjak , Ms Mira Bošnjak , Ms Biljana Bošnjak , Ms Dragana Bošnjak , Mr Bor o Bojanić , Ms Zorka Bojanić , Ms Danijela Banjac , Ms Đuja Čolić , Ms Sm ilja Čolić , Ms Dijana Čolić , Mr Duško Čolić , Ms Dejana Čolić , Mr Neđo Lazarević , Mr Rajko Komljenović and Ms Jevrosima Komljenović (“the applicants”), on 4 and 5 December 2012 .

2 . The applicants were represented by Ms R. Plavšić , a lawyer practising in Banja Luka . The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, M s M. Mijić .

3 . This case, like Čolić and Others v. Bosnia and Herzegovina , nos. 1218/07 et al ., 10 November 2009, concerns the non-enforcement of final and enforceable domestic judgments awarding war damages to the applicants .

4 . On 2 September 2013 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . By six judgments of the Banja Luka Court of First Instance (“the Court of First Instance”) of 17 Feb ruary 2000, 25 October 2000, 12 December 2008, 8 July 2003, 11 February 2003 and 31 August 1999, which became final on 15 May 2001, 18 March 2004, 12 January 2009, 30 June 2005 and 4 December 2000 respectively , the Republika Srpska (an En tity of Bosnia and Herzegovina) wa s ordered to pay, within 15 da ys, the following amounts in respect of war damage together with default interest at the statutory rate:

( i ) BAM 21,000 in respect of non -pecuniary damage, BAM 2,300 in respect of pecuniary damage and BAM 2,350 in respect of legal costs to the Đurićs ;

(ii) BAM 31,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 3,570 in respect of legal costs to the Bošnjaks ;

(iii) BAM 28,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 4,470.60 in respect of legal costs to the Bojanićs and Ms Banjac;

(iv) BAM 40,000 in respect of non-pecuniary damage and BAM 2,835 in respect of legal costs to the Čolićs ;

(v) BAM 19,000 in respect of non-pecuniary damage and BAM 600 in respect of legal costs to Mr Lazarević ;

(vi) BAM 14,000 in respect of non-pecuniary damage, BAM 2,500 in respect of pecuniary damage and BAM 1,810 in respect of legal costs to the Komljenovićs .

6 . The Court of First Instance issued writs of execution ( rješenje o izvršenju) on 24 August 2001, 16 August 2004, 4 April 2011, 8 August 2007, 27 April 2009 and 28 March 2001.

7 . The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) .

8 . On 16 January 2013 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 in the cases of the Đurićs, Mr Lazarević , the Bojanićs and Ms Banjac. In line wi t h its established practice in cases of this type, it refused the applicantsʼ compensation claims , holding that a find ing of a violation constituted in itself sufficient just satisfaction .

9 . The cases of the Čolićs, the Komljenovićs and the Bošnjaks are still pending before the Constitut i onal Court.

10 . On 10 April 2008, 12 Novembe r 2010, 13 December 2010 and 18 July 2008 respectively the Đurićs , the Bošnjaks, the Čolićs, Mr Lazarević and the Komljenovićs were paid legal costs and default interest.

11 . Under the new settlement p lan (see paragraph 16 below) the Đurićs ʼ case was scheduled for enforcement in 2014; the Bošnjaksʼ in 2019; the Bojanićsʼ and Ms Banjacʼs in 2030; the Čolićsʼ in 2024; Mr Lazarevićʼs in 2026; and the Komljenovićsʼ in 2017.

II. RELEVANT DOMESTIC LAW AND PRACTICE

12 . In view of the large number of civil actions brought under the ordinary rules of tort law on 29 November 2005 the Republika Srpska created a general compensation scheme for war damage and extinguished the pending civil actions under the terms of the War Damage Act 2005 ( Zakon o ostvarivanju prava na naknadu materijalne i nematerijalne štete nastale u periodu ratnih dejstava od 20. maja 1992. do 19. juna 1996. godine , Official Gazette of the Republika Srpska (“OG RS”) no s . 103/05 , 1/09 and 49/09). Compensation awarded under this scheme was to be paid in government bonds , which were t o be amortised in ten annual instalments.

13 . Some 9,000 judgments became final by 29 November 2005. The Republika Srpska was ordered to pay approximately BAM 140,000,000 in total plus defau lt interest. Their enforcement has been suspended since 28 May 2002 pursuant to the Postponement of Enforcement Act 2002 , the Temporary Postp onement of Enforcement Act 2003 and the Domestic Debt Act 2004 ( 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 s . 25/02 and 51/03 ; Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske , OG RS no s. 110/03 and 63/04 ; Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske , OG RS no s. 63/04, 47/06, 68/07 , 17/08, 64/08 and 34/09).

14 . In acc ordance with the settlement plan envisaged u nder the Domestic Debt Act 2004, principal debt and associated default interest were to be paid in ten annual in stalments between 2014 and 2023 ( Odluka o emisiji obveznica Republike Srpske za izmirenje obaveza po osnovu materijalne i nematerijalne Å¡tete nastale u periodu ratnih dejstava od 20. maja 1992. do 19. juna 1996. godine , OG RS no. 62/08 ). The bonds earned inte rest at an annual rate of 1.5% and could be so ld on the Stock Exchange.

15 . Following Čolić and Others , cited above, o n 13 January 2012 the Domestic Debt Act 2012 entered into force, thereby repea ling the Domestic Debt Act 2004 ( Zakon o unutrašnje m dugu Republike Srpske , OG RS nos. 1/12, 28/ 13 and 59/13 ). As regards the payment of war damage, it envisages th at the judgments will be enforced in cash and in government bonds , if the creditors so accept. The maturity of the bonds is now 13 years . They can be sold at the Stock Exchange, used to pay direct taxes accrued by 31 December 2007, used to finance up to 60% of the purchase price of State-owned flats, commercial buildings, gara ges and business premises, and for paying a fee for certain administrative decisions ( odobrenje legalizacije objekta ).

18 . Furthe r more, after Čolić and Others , the War Damage A ct 2005 was amended in that any civil a ctions previously extinguished could be resumed before the competent courts ( see paragraph 12 above; Zakon o izmjenama i dopunama Zakona o ostvarivanju prava na naknadu materijalne i nematerijalne štete nastale u periodu ratnih dejstava od 20. maja 1992. do 19. juna 1996. godine , OG RS no. 118/09). There are around 3,030 pending cases before the domestic courts.

THE LAW

19 . The applicants complain ed of the non-enforcement of the final domestic judgments indicated in paragraph 5 above. They relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

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

20 . Given their common factual and legal background , the Court decides to join these six applications pursuant to Rule 42 § 1 of the Rules of Court .

II . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENT ION AND ARTICLE 1 OF PROTOCOL NO . 1 TO THE CONVENTION

A. Admissibility

21 . The Court notes that the application s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadm issible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

(a) The applicants

22 . The applicants essentially maintained that the principle of the rule of law, which Bosnia and Herzegovina had undertaken to respect when it ratified the Convention, required that every judgment be enforced without delay.

(b) The Government

23 . The Government argued that in view of the number of domestic judgments concerning war damage and the size of the Republika Srpska ’ s public debt, the enforcem ent scheme envisaged under the settlement p lan was adequate and justified. In December 2013 the aggregate debt was BAM 166,518,564.87 and the number of unenforced judgments was 4,089. There were around 3,030 pending cases before the domestic courts.

The Go vernment further submitted that, following Ign jatić and Others v. Bosnia and Herzegovina (nos. 6179/08 et al., 15 January 2013; see paragraph 28 below) , there was an increase in the numb er of unenforced judgments. For that reason in July 2013 the time-limit for the enforcement was extended to 20 years . Moreover, s ince the Domestic Debt Act 2012 envisaged two options of enforcement, in cas h and in government bonds, the settlement p lan was to be revised periodic ally as some creditors might ch o o se enforcement in bonds.

2. The Court ’ s assessment

(a) Background to the present case

24 . On 10 November 2009 t he Court adopted a leading judgment concerning the non-enforcement of final domestic judgments awarding war damages (see Čolić and Others , cited above). It held that the size of public debt could not justify the statutory suspension of the enforcement of an entire category of final judgments and found that there had been a breach of Article 6 and Article 1 of Protocol No. 1 to the Convention on account of the excessive delay in the enforcement .

The relevant part of Čolić and Others reads (see § 15):

“ The present case is similar – although not identical – to J eličić v. Bosnia and Herzegovina , no. 41183/02, ECHR 2006 ‑ XII , in which the Court found a breach of Article 6 and Article 1 of Protocol No. 1. It concerns, as Jeličić did, the statutory suspension of the enforcement of an entire category of final judgments on account of the size of public debt arising from these judgments. While the applicants invited the Court to apply the Jeličić jurisprudence to their case, t he Government sought to distinguish the two cases on the following grounds.

First, the Government maintained that there were considerably more domestic judgments ordering the payment of compensation for war damage (under consideration in the present case) than those ordering the release of “old” foreign-currency savings ( under consideration in Jeličić ). The Court notes, however , that the size of public debt seemingly arising from these two categories of judgments is similar (see Pejaković and Others v. Bosnia and Herzegovina , nos. 337/04 et al . , § § 26-27 , 18 December 2007).

Secondly, the Government submitted that many people fell under the general compensation scheme, described in paragraph 10 above, and that it would be unacceptable to treat them differently from those with final judgments in their favour. The Court disagrees. While a situation where a significant number of war-related civil claims are pending may call for their replacement by a general compensation scheme (see, by analogy, Poznanski and Others v. Germany ( dec. ), no. 25101/05, 3 July 2007), this is of no relevance to the obligation of the respondent State to enforce judgments which became final before the creation of such a scheme.

The Court therefore does not see any reason to depart from the Jeličić jurisprudence . Since the final judgments under consideration in the present case have not yet been fully enforced and the situation has already lasted more than four years , there has been a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.”

In view of the number of simi lar cases, the Court invited the respondent State, under Article 46 of the Convention, to solve the problem that had led to the finding of a violation by way of implementing appropriate general and/or individual measures (ibid., § 17). As regards Article 41 of the Convention, the Court ordered full enforcement of the domestic judgments in question in respect of pecuniary damage and awarded EUR 1,500 per application in respect of non-pecuniary damage.

25 . In a following judgment, Runić and Others v. Bosnia and Herzegovina , nos. 28735/06 et al ., 15 November 2011 , in which the applicants had accepted government bonds in lieu of cash as means of enforcement, the Court held that domestic judgments ordering payment of war damage had been fully enforced by the issuance of bonds (ibid., § 15). However, it found a breach of Article 6 and Article 1 of Protocol No. 1 in respect of the prolonged non-enforcement.

26 . In a further judgment, Ignjatić and Others v. Bosnia and Herzegovina (nos. 6179/08 et al ., 15 January 2013) , the Court held that in the absence of creditors ’ consent , the enforcement courts could not have ordered the enforcement in bonds of the final judgments awarding war damages. It found that this was contrary to Article 6 and Article 1 of Protocol No. 1 ( ibid., § 17).

27 . After the adoption of the above-mentioned judgments, around 300 similar applications were resolved through friendly settlements on the basis of the Government ’ s undertaking to pay EUR 1,000 per application in respect of non-pecuniary damage and costs and expenses within three months, and to enforce domestic judgments at i ssue in cash within nine months , that is, as from June 2013, within twenty-seven months (in four installments) of the Court ’ s decisions . In some cases the Government made unilateral remedial offers under the same terms except for the amount of compensation in respect of non-pecuniar y damage and costs and expenses which was reduced to EUR 900.

28 . I n December 2010 the Republika Srpska introduced the Action Plan by way of the enforcement of the general measures ordered in Čolić and Others . After the identification of the exact number of non-e nfor ced judgments and the aggregate debt, a settlement plan for the enforcement was p repared in October 2012. It envisage d the enforcement of final judgments ordering payment of war damages in cash within 13 years starting from 2013, in the order in which they were received at the Ministry of Finance of the Republika Srpska, provided the creditors had submitted the necessary documents. Furthe r more, the Republika Srpska undertook to pay EUR 50 in respect of non-pec uniary damage. This amount was to be paid first in respect of final judgments which had already been enforced in the form of government bonds. The non-pecuniary damage in respect of other judgments was to be paid in the same year in which the judgment in question would be enforced in accordance with the settlement plan. In July 2013 the time-frame for the enforcement was extended to 20 years starting from 2013 (see paragraph 17 above).

(b) T he present case

29 . In the present case the Court will examine the adequacy of the Republika Srpskaʼs settlement plan for the enforcement of final domestic judgments awarding war damages .

Moreover, it was the Republika Srpskaʼs legal system that allowed for the creation of s uch a high number of judgments awarding war damages: c ivil actions for war damages were brought under the ordinary rules of tort law (see paragraph 12 above). By the end of 2005 when the War Damage Act 2005 was introduced some 9,000 judgments became final (see paragraph 13 above). While a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ’ s fundamental rights is inherent in the whole of the Convention, the consequence of the respondent State ’ s action in delaying for another 20 years the enforcement of these judgments is to impose an individual and excessive burden on the creditors concerned ( see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, Series A no. 52, §73). Some of the applicants in the present case obtained final judgments in their favour thirteen years ago (see paragraph 6 above) and they remain unenforced to the present day. There are many more in similar situation s . It should be noted that around 400 similar cases are pending before this Court.

31 . Furthemore , the Court accepts that the payment of compensation for non-pecuniary damage envisaged by the settlement plan is intended by the respondent State to constitute compliance with its ob ligations under the Convent ion and commends this gesture, and especially the settlement plan from October 2012. However, in view of the above considerations, the Court cannot but conclude that the Rep ublika Srpska ’ s settlement plan, as extended in 2013, is not in accordance with Article 6 and Article 1 of Protocol No. 1 to the Convention.

32 . Accordingly, the Court considers there has been a violation of Article 6 and Article 1 of Protocol No. 1 to the Convention in the present case on account of the prolonged non-enforcement of final and enforceable domestic judgments in the applicants ’ favour .

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33 . 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

34 . T he applicants sought the payment o f the outstanding judgment debt in respect of pecuniary damage and EUR 5,000 per application in respect of non-pecuniary damage.

35 . The Government considered the claims unsubstantiated.

37 . In respect of non-pecuniary dam age, the applicants claimed EUR 5,00 0 per application.

38 . The Government considered the amount claimed to be excessive.

39 . The Court considers that the applicants 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, it awards EUR 1,0 00 per application under this head.

B. Costs and expenses

40 . The applicants claimed the following sums for the costs and expenses incurred before the domestic courts a nd before the Court: the Đurićs , BAM 4,095 ; the Bošnjaks , BAM 4,680 ; the Bojanićs and Ms Banjac, BAM 4,095 ; the Čolićs , BAM 4,680 ; Mr Lazarević , BAM 2,340; and the Komljenovićs , BAM 3,510.

41 . The Government considered the amounts claimed to be excessive.

42 . According to 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 (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). The Court notes that the applicants ’ representative submitted initial applications and, at the request of the Court, written pleadings in one of the official languages of Bosnia and Herzegovina. In view of the fact that this case concerns six applications raising the same issue and that the applicants had the same representative, the Court awards EUR 450 per application under this head, plus any tax that may b e chargeable to the applicants.

C. Default interest

43 . 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.

IV . APPLICATION OF ARTICLE 46 OF THE CONVENTION

44 . The Court finds it appropriate in the present case to consider the application of Article 46 of the Convention, which provides, in so far as relevant:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution...”

45 . The Court recalls that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court found to be violated. Such measures must also be taken in respect of other persons in the applicant ’ s position, notably by solving the problems that have le d to the Court ’ s findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII; Karanović v. Bosnia and Herzegovina , no. 39462/03, § 28, 20 November 2007; ÄŒolić and Others v. Bosnia and Herzegovina , nos. 1218/07 et al., § 17, 10 November 2009; Burdov v. Russia (no. 2) , no. 33509/04, § 125, ECHR 2009 ‑ ... ; and Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, § 106, ECHR 2010 (extracts)).

46 . In the present case the Court has found that the settlement plan for the enforcement of domestic judgments ordering the payment of war damages was not in accordance with Article 6 and Article 1 of Protocol No. 1. This violation affects many people (see paragraphs 16 and 18 above). Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State ’ s obligations under Article 46 of the Convention, the Court considers that in view of the nature of the violation found in the instant case , i t would be appropriate to provide the respondent Government with some guidance as to what is required for the proper execution of the present judgment.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applicat ions;

2 . Declares the applications admissible;

3 . Holds that there has been a violation of Article 6 of the Convention;

4 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5 . Holds

(a) that the respondent State is to secure enforcement of the domestic judgments under consideration in the present case within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, and, in addition to pay the applicants, within the same period, the following amount , to be converted into domestic currency at the rate applicable at the date of settlement:

(i) EUR 1,0 00 (one thousand euros) per application, plus any tax that may be chargeable, in respect of non-pecuniary damage; and

( i i ) EUR 450 (four hundred and fifty euros) per application, plus any tax that may be chargeable to the applicants , in respect of costs and expenses;

(b) 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;

6 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 20 January 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele Registrar President

[1] The convertible mark uses the same fixed exchange rate to the euro that the German mark has : EUR 1 = BAM 1.95583 .