FOURTH
SECTION
PARTIAL
DECISION
AS
TO THE ADMISSIBILITY OF
Application
no. 34379/03
by Spasoje LUKIĆ
against
The
European Court of Human Rights (Fourth Section), sitting on 9 January 2007
as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having
regard to the above application lodged on 17 October 2003,
Having
deliberated, decides as follows:
THE FACTS
The
applicants, Mr Spasoje Lukić, Ms Jovanka Lukić, Mr Svetozar Lukić and Mr Aleksandar Lukić,
are citizens of
A. The
circumstances of the case
The
facts of the case, as submitted by the applicants, may be summarised
as follows.
1. First
set of proceedings
Prior
to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the
SFRY”) the applicants deposited foreign currency in their bank accounts at the
then Jugobanka Sarajevo – Ekspozitura
Doboj. In
Following
several unsuccessful attempts to withdraw their funds, the applicants initiated
court proceedings seeking the recovery of their entire “old” foreign-currency
savings and accrued interest.
On
23 July 1993 the Doboj Court of First Instance ordered the Jugobanka Banja Luka – Ekspozitura Doboj, the legal successor of the bank indicated above,
to release, within 15 days, the applicants’ savings (in the amount of 7,741.99
German marks, 22.03 US dollars1 and
3,087.57 Swiss francs2) together
with any accrued interest and to pay default interest on the above amounts (at
the statutory rate from 18 December 1992). The judgment entered into force on
25 August 1993.
Since
the Jugobanka
Banja Luka – Ekspozitura Doboj failed to execute the judgment voluntarily, the
competent court issued an execution writ on 17 November 1993.
On
11 May 1998 the execution proceedings were stayed. The applicants have not
indicated whether and when they resumed.
On
12 October 1998 the applicants filed an application with the Human Rights
Chamber (set up by Annex 6 to the 1995 General Framework Agreement for Peace).
On
3 April 2001 the Human Rights Chamber found a violation of Article 6 of the
European Convention on Human Rights and of Article 1 of Protocol No. 1 to that
Convention arising from the long-lasting non-enforcement of the judgment of 23
July 1993. The Human Rights Chamber held the Republika
Srpska responsible and ordered it to ensure full
enforcement without further delay. No award of non-pecuniary damage was made since the applicants did not claim any.
On
17 April 2002 the Republika Srpska
took over the judgment debt, pursuant to section 20 of the Opening Balance
Sheets Act 1998 (Zakon o početnom bilansu stanja u postupku privatizacije državnog kapitala u bankama; published
in the Official Gazette of the Republika Srpska (“OG RS”) no. 24/98 of 15 July 1998; amendments
published in OG RS no. 70/01 of 31 December 2001).
In
2004 (the exact date has not been indicated) the applicants were paid 11,563.80
Bosnian markas (which amount corresponds roughly to
the principal judgment debt without the awarded interest) regardless of
statutory restrictions on enforcement of judgments ordering the release of
“old” foreign-currency savings.
On
15 April 2006 Bosnia and
Herzegovina took over the judgment debt from the Republika
Srpska pursuant to section 1 of the Old
Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare devizne štednje; published in
the Official Gazette of Bosnia
and Herzegovina (“OG BH”) no. 28/06 of 14 April 2006; amendments published in
OG BH no. 76/06 of 25 September 2006; “the 2006 Act”).
It
would appear that the judgment in issue has not yet been fully enforced and
that the enforcement thereof is still prevented by law (section 27 of the 2006
Act).
2. Second
set of proceedings
On
an unspecified date the applicants initiated court proceedings seeking damages
from the then Jugobanka Banja
Luka – Ekspozitura Doboj.
On
2 August 1995 the Doboj Court of First Instance
rejected their claim.
On
15 February 1996 the Doboj District Court upheld the
first-instance judgment which thereby entered into force.
On
27 December 1999 the Supreme Court of the Republika Srpska upheld the second-instance judgment.
3. Third
set of proceedings
On
17 February 1992 the then Jugobanka
Sarajevo – Ekspozitura Doboj
seized 3,370.66 Swiss francs from an account of the applicant Aleksandar Lukić and
6,580.75 German marks from an account of the applicant Svetozar
Lukić.
On
15 April 2002 the Doboj Court of First Instance
ordered the Kristal banka – Filijala
Doboj (the legal successor of the bank mentioned
above) to repay the seized amounts and to pay legal costs. Default interest was
not awarded since the applicants did not claim any.
On
4 July 2002 the Doboj District Court upheld the
first-instance judgment which thereby entered into force.
In
2003 the Kristal banka
changed its name to Hypo Alpe-Adria-Bank
Banja Luka, following its privatisation
a year earlier.
Since
the Hypo Alpe-Adria-Bank
Banja Luka failed to execute the judgment
voluntarily, the Doboj Court of First Instance issued
an execution writ on 2 February 2005. The bank appealed against the execution
writ on the ground that the judgment debt fell under the special regime
applicable to the “old” foreign-currency savings. The Doboj
District Court disagreed with the bank’s view and rejected its appeal on 15
June 2006. The execution writ thereby entered into force.
It
would appear that the judgment in issue has not yet been enforced. It would
further appear that the applicants have not yet complained about this situation
to the Constitutional Court of Bosnia
and Herzegovina (“the
B. Relevant
law and practice
For
the relevant law and practice see the Jeličić
decision cited above, Mirazović v.
Bosnia and Herzegovina
(dec.), no. 13628/03, 16 May 2006 and Suljagić v. Bosnia and Herzegovina (dec.),
no. 27912/02, 20 June 2006.
COMPLAINTS
1. The
applicants complain because the judgment of 23 July 1993 has not been fully
enforced (see “First set of
proceedings” above).
2. They
further complain about the fairness and outcome of a set of proceedings which
ended on 27 December 1999 (see “Second set of proceedings” above).
3. The
applicants Svetozar and Aleksandar
Lukić also complain about a failure to enforce
the judgment of 15 April 2002 (see “Third set of proceedings” above).
The
applicants rely on the Convention in general, without invoking any particular
provision thereof.
THE LAW
1. The
applicants complained that the judgment of 23 July 1993 has not been fully
enforced, despite the facts that it is final and enforceable and that the State
is responsible for the judgment debt.
The
Court considers that it cannot, on the basis of the case file, determine the
admissibility of this complaint and that it is therefore necessary, in
accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this
part of the application to the respondent Government.
2. The
applicants unsuccessfully pursued another set of civil proceedings. They
complained about the fairness and outcome thereof.
The
Court recalls that, in accordance with the general rules of international law,
the provisions of the Convention do not bind a Contracting Party in relation to
any act or fact which took place, or any situation which ceased to exist,
before the date of the entry into force of the Convention with respect to that
Party (see, for example, Kadiķis v.
Latvia (dec.), no. 47634/99, 29 June
2000).
Since
the last domestic decision was given on 27 December 1999 and
It
follows that this part of the application must be rejected in accordance with
Article 35 § 4.
3. The
judgment of 15 April 2002, in favour of the
applicants Svetozar and Aleksandar
Lukić, is also final and enforceable. Contrary
to the judgment of 23 July 1993 (see “First set of proceedings” above), this
judgment does not fall under the special legal regime applicable to the “old” foreign-currency
savings. It has not been enforced and the said applicants complain about this
situation.
The
Court recalls that an appeal to the Constitutional Court of Bosnia and Herzegovina is, in principle, an
effective domestic remedy within the meaning of Article 35 § 1 of the
Convention for raising complaints about non-enforcement of judgments (see the Mirazović decision cited above).
Since
the applicants did not submit this complaint to the former Human Rights Chamber
(it was possible to do so until 31 December 2003), they could have submitted it
to the
This
part of the application must therefore be rejected pursuant to Article 35
§§ 1 and 4.
For these reasons, the Court unanimously
Decides
to adjourn the examination of the applicants’ complaint concerning the
failure to enforce the judgment of 23 July 1993;
Declares the remainder of the
application inadmissible.
T.L. Early
Nicolas Bratza
Registrar President
1
37.83 German marks as of 23 July 1993.
2
3,501.84 German marks as of 23 July 1993.
LUKIĆ v.
LUKIĆ v.