FOURTH
SECTION
CASE
OF JELIČIĆ v.
(Application
no. 41183/02)
JUDGMENT
31 October 2006
31/01/2007
This judgment will become final in the circumstances
set out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In
the case of Jeličić v.
The
European Court of Human Rights (Fourth Section), sitting as a Chamber composed
of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 41183/02) against
2. The
applicant complained that a final and enforceable judgment ordering the release
of her “old” foreign-currency savings had not been enforced.
3. The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1.
4. A
hearing on admissibility and the merits took place in public in the
There appeared before the Court:
(a) for
the Government
Ms Z. Ibrahimović, Acting Agent,
Ms M. Mijić, Acting Deputy Agent;
(b) for
the applicant
Mr P. Radulović, Counsel,
Mr S. Nišić, Adviser.
The Court heard addresses by Ms Ibrahimović and Mr Radulović,
as well as their answers to questions put by Judge Mijović.
5. By
a decision of 15 November 2005 the Court declared the application admissible.
6. The
applicant and the Government each filed further written observations (Rule 59 §
1). In addition, third-party comments were received from the Association of
Foreign-Currency Savers (Udruženje za zaštitu deviznih štediša u Bosni i
Hercegovini), which had been given leave by the President to intervene in
the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
7. The
applicant was born in 1953 and lives in
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
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 to the Convention 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
23. The
judgment of 26 November 1998 has not yet been enforced.
II. RELEVANT
DOMESTIC LAW
A. Statutory
prevention of enforcement of judgments ordering the release of “old”
foreign-currency savings
24. Enforcement of such judgments has been
prevented in the Republika Srpska since 3 May 1996 in accordance with the
relevant instructions of the Republika Srpska Government (Odluka o
obustavljanju isplate “stare” devizne štednje; published in the Official
Gazette of the Republika Srpska (“OG RS”) no. 10/96 of 27 May 1996; and Zaključak;
published in OG RS no. 24/99 of 4 October 1999) and the following legislation:
(a)
Foreign-Currency Transactions Act 1996 (Zakon o deviznom poslovanju; published
in the OG RS no. 15/96 of 8 July 1996; amendments published in OG RS no. 10/97
of 30 April 1997);
(b)
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; published in OG RS no. 25/02 of 20
May 2002; amendments published in OG RS no. 51/03 of 1 July 2003);
(c)
Foreign-Currency Transactions Act 2003 (Zakon o deviznom poslovanju; published
in OG RS no. 96/03 of 24 November 2003);
(d)
Temporary Postponement of Enforcement Act 2003 (Zakon o privremenom
odlaganju od izvršenja potraživanja iz budžeta Republike Srpske; published
in OG RS no. 110/03 of 20 December 2003);
(e)
Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu
izmirenja unutrašnjeg duga Republike Srpske; published in OG RS
no. 63/04 of 15 July 2004; amendments published in OG RS no. 47/06 of
11 May 2006); and
(f)
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; “the 2006 Act”).
B. Liability
for “old” foreign-currency savings
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; published in OG
RS no. 24/98 of 15 July 1998; amendments 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
C. Other
relevant legislation concerning “old” foreign-currency savings
1. Legislation
of
27. The
2006 Act has been in force since 15 April 2006. The following are its relevant
provisions:
Section
1
“1. This
Act defines the procedure, manner and deadlines for the fulfilment of the
obligations of
2. While
...
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.
5.
Section
2
“1. Under
this Act, old foreign-currency savings are foreign-currency savings in banks
located in the
2. Old
foreign-currency savings defined in paragraph 1 above shall not include
foreign-currency savings in branch offices located in the
Section
3(1)
“According
to preliminary data ... old foreign-currency savings amount to 1,979,000,000
Bosnian markas1. The amount
shall be determined in the verification process.”
Section
4
“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%.”
Section
5
“The
fulfilment of obligations arising from old foreign-currency savings, if not
verified in accordance with this Act, can be requested only in court
proceedings.”
Section
6
“...
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;
...”
Section
15
“...
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.”
Section
17(1)
“An
application for verification can be submitted by [16 October 2006] and the
verification process shall be completed by [15 January 2007].”
Section
18
“...
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 markas2, 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 markas3, 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
...
...”
Section
21(1)
“...
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 13 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.”
Section
27
“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.”
Section
28
“The
competent court shall of its own motion submit any pending case to the
verification process in accordance with this Act.”
2. Legislation
of the Republika Srpska
(a) Privatisation
of Companies Act 1998 (Zakon o privatizaciji državnog kapitala u
preduzećima; published in OG RS no. 24/98 of 15 July 1998;
amendments published in OG RS nos. 62/02 of 7 October 2002, 38/03 of
30 May 2003, 65/03 of 11 August 2003 and 109/05 of 16 November 2005)
28. This
Act was in force from 23 July 1998 until 25 May 2006. The following were the
relevant provisions:
Section
19(1) and (2) (as amended on 19 August 2003)
“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) of this Act). Any conversion into privatisation coupons
was irrevocable (section 25(3) of this Act).
(b) Privatisation
of Business Premises and Garages Act 2004 (Zakon o privatizaciji poslovnih
zgrada, poslovnih prostorija i garaža; published in OG RS no. 98/04
of 4 November 2004)
29. This
Act has been in force since 12 November 2004. Section 10(3) of this Act
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.
D. Non-enforcement
of the decisions of the former Human Rights Chamber
30. In
accordance with Article 239 of the Criminal Code 2003 (Krivični zakon
Bosne i Hercegovine; published in OG BH nos. 3/03 of
10 February 2003 and 37/03 of 22 November 2003; amendments 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.”
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION
31. The
applicant complained about the statutory prevention of the enforcement of a
final and enforceable judgment in her favour. Her complaint was first examined
by the Court under Article 6 of the Convention which, in so far as relevant,
reads as follows:
“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.”
A. The
parties' submissions
32. The
applicant asserted that a failure to enforce a final and enforceable judgment
could not be justified under any circumstances. She relied directly on the
principle of the rule of law.
33. The
Government maintained that the obligation to enforce final and binding judicial
decisions was not absolute. Since the judgment at issue concerned “old”
foreign-currency savings, which represented a significant part of the large
public debt, the Government asserted that the impugned statutory intervention
was justified.
34. Their
submissions then addressed the general situation of “old” foreign-currency
savers without distinguishing between those in the present applicant's position
(where there had been a judgment ordering the release of her savings) and the
majority of other “old” foreign-currency savers (who had not obtained any such
judgment).
35. The Government confirmed that,
following the recent Old Foreign-Currency Savings Act 2006 (“the 2006 Act”),
the applicant should not expect full enforcement of the judgment at issue.
Interest accrued from 1 January 1992 would be calculated afresh at an
annual rate of 0.5% (instead of the significantly higher interest rate applied
by the Banjalučka banka and awarded by the domestic courts).
Furthermore, the nominal value of the privatisation coupons into which the
applicant had converted a part of her savings would be deducted from the amount
awarded by the domestic courts. The judgment would be enforced partly in cash
(1,000 Bosnian markas, equivalent to EUR 511, by the end of 2007) and partly in
State bonds (to become due by the end of 2020, to earn interest at an annual
rate of 2.5% and to be redeemable before their maturity). Lastly, the applicant
should undergo a verification process like any other “old” foreign-currency
saver.
B. Third-party
submissions: Article 36 § 2 of the Convention
36. The
Association of Foreign-Currency Savers (Udruženje za zaštitu deviznih
štediša u Bosni i Hercegovini) explained in some detail the history of the
“old” foreign-currency savings issue. According to the Association, one of the
main reasons for the gradual “disappearance” of the hard-currency reserves of
the then Socialist Federal Republic of Yugoslavia (“SFRY”) had been the
unlawful raids into the monetary system by what are now the successor States of
the former SFRY. The Association also asserted that the Socialist Republic of Bosnia and Herzegovina had
been the sole entity of the then SFRY with a positive foreign-trade balance,
because of its export-oriented economy.
37. Judgments
ordering the release of “old” foreign-currency savings were rare: only some
courts in the Republika Srpska had ruled in favour of “old” foreign-currency
savers and no court in the Federation of Bosnia and Herzegovina had done so. In any event,
such judgments, rare as they were, had remained inoperative owing to statutory
intervention.
C. The
Court's assessment
38. The
Court reiterates that Article 6 § 1 secures to everyone the right to have any
claim relating to his civil rights and obligations brought before a court or
tribunal; in this way it embodies the “right to a court”, of which the right of
access, that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be illusory if a
Contracting State's domestic legal system allowed a final, binding judicial
decision to remain inoperative to the detriment of one party. It would be
inconceivable that Article 6 § 1 should describe in detail the procedural
guarantees afforded to litigants – proceedings that are fair, public and
expeditious – without protecting the implementation of judicial decisions. To
construe Article 6 as being concerned exclusively with access to a court and
the conduct of proceedings would indeed be likely to lead to situations
incompatible with the principle of the rule of law which the Contracting States
undertook to respect when they ratified the Convention. Execution of a judgment
given by any court must therefore be regarded as an integral part of the
“trial” for the purposes of Article 6 (see Hornsby v. Greece, judgment
of 19 March 1997, Reports of Judgments and Decisions 1997-II, p.
510, § 40).
39. The
Court further reiterates that it is not open to a State authority to cite lack
of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in
the execution of a judgment may be justified in particular circumstances, but
the delay may not be such as to impair the essence of the right protected under
Article 6 § 1 (see Burdov v. Russia, no. 59498/00, § 35,
ECHR 2002-III, and Teteriny v. Russia, no. 11931/03, § 41, 30 June
2005).
40. Turning
to the instant case, the Court notes that the judgment of 26 November
1998, although final and enforceable, has not yet been executed. The impugned
situation has thus already lasted more than four years since the ratification of
the Convention by Bosnia
and Herzegovina on 12 July 2002 (the period which falls within the
Court's jurisdiction ratione temporis). The Court also notes that the
judgment debt is the liability of the State (see paragraphs 25
and 26
above).
41. The
Government did not dispute that in ordinary circumstances a delay in the
execution of a judgment of more than four years would not be consistent with
the requirements of Article 6 (see, for example, Voytenko v. Ukraine,
no. 18966/02, §§ 41-42, 29 June 2004). However, they maintained that the
present case was exceptional as the judgment in issue concerned the release of
the applicant's “old” foreign-currency savings. It would be unacceptable to
execute this judgment without reimbursing other “old” foreign-currency savers
at the same time (including those who had not obtained a final and enforceable
judgment in their favour) and such a course of action was simply impossible
because of the magnitude of the “old” foreign-currency savings.
The
Court disagrees. It considers that the situation of the applicant in the
present case is significantly different from that of the majority of “old”
foreign-currency savers who have not obtained any judgment ordering the release
of their funds.
42. The
Court does not consider that the payment of the award made by the domestic
courts in the present case, even with the accumulated default interest, would
be a significant burden for the State, let alone result in the collapse of its
economy as suggested by the Government. In any event, the applicant should not
be prevented from benefiting from the success of her litigation on the ground
of alleged financial difficulties experienced by the State.
43.
Further, the evidence is that judgments ordering the release of “old”
foreign-currency savings are the exception rather than the norm. This has been
corroborated by the case-law of the former Human Rights Chamber, the Human
Rights Commission within the Constitutional Court and the Constitutional Court
of Bosnia and
Herzegovina; they have determined more than one thousand “old” foreign-currency
cases and a final and enforceable judgment ordering the release of savings has
been made in only five cases (applications nos. CH/98/1019, CH/98/1084,
CH/99/1859, CH/99/2733 and CH/99/2997 lodged with the Human Rights Chamber).
Similarly, of the approximately 85 cases pending before this Court (submitted
on behalf of more than 3,750 applicants) concerning “old” foreign-currency
savings, about ten applicants have obtained a final and enforceable judgment
ordering the release of their savings.
44. While
the Court appreciates that a major part of “old” foreign-currency savings may
have ceased to exist before or during the dissolution of the former SFRY and
the disintegration of its banking and monetary systems (see the report by Erik
Jurgens, Repayment of the deposits of foreign exchange made in the offices
of the Ljubljanska banka not on the territory of Slovenia, 1977-1991,
accompanying Resolution 1410 (2004), adopted by the Parliamentary Assembly of
the Council of Europe on 23 November 2004), such circumstances fall to be
raised and examined prior to a final domestic determination of a case, and
where the courts have finally determined an issue, their ruling should not be
called into question (see Brumărescu v. Romania [GC], no. 28342/95,
§ 61, ECHR 1999-VII).
45. In
the circumstances of the present case, the Court considers that it was not
justified to delay for so long the execution of a final and enforceable
judgment, or to intervene in the execution of the judgment in the manner
permitted by section 27 of the 2006 Act (see paragraph 35
above).
46. The
Court concludes that the essence of the applicant's right of access to court,
as protected by Article 6 of the Convention, was thereby impaired. There has
accordingly been a breach of that Article.
II. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
47. The
applicant's complaint about the statutory prevention of enforcement of a final
and enforceable judgment in her favour was also examined under Article 1 of
Protocol No. 1 to the Convention, which 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.”
48. The
Court reiterates that the impossibility of obtaining the execution of a final
judgment in an applicant's favour constitutes an interference with the right to
the peaceful enjoyment of possessions, as set out in the first sentence of the
first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov,
cited above, § 40; Jasiūnienė v. Lithuania, no. 41510/98,
§ 45, 6 March 2003; and Voytenko, cited above, § 53).
49. For
the reasons set out above in the context of Article 6, the Court further
considers that the interference with the applicant's possessions was not
justified in the circumstances of the present case.
Therefore,
there has also been a violation of Article 1 of Protocol No. 1.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
50. 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
51. In respect of pecuniary damage, the
applicant sought the payment of the judgment debt, including default interest
and legal costs. She accepted that the amounts which she had actually received
on 30 January 2001, 7 March 2002 and 9 February 2004 on the secondary
market should be deducted (in total EUR 13,395). However, she refused to bear
the loss incurred in those transactions (that is, the difference of EUR 17,282
between the nominal value of her savings converted into privatisation coupons
and the price of those coupons that was actually paid to her). The applicant
explained that had the judgment at issue been enforced on time, she would not
have had to convert her savings into coupons and would not have sustained that
loss. In addition, the applicant claimed EUR 50,000 by way of compensation for
non-pecuniary damage.
52. The
Government submitted that the entire amount converted on three occasions into
privatisation coupons (EUR 30,677) should be deducted. They did not question
the amounts actually received by the applicant in the above-mentioned
transactions. As to the claim for non-pecuniary damage, the Government
considered it to be unsubstantiated.
53. The Court reiterates that the most
appropriate form of redress in respect of a violation of Article 6 is to
ensure that the applicant as far as possible is put in the position in which he
or she would have been had the requirements of Article 6 not been disregarded
(see Teteriny, cited above, § 56). The Court finds that in
the present case this principle applies as well, having regard to the violation
found. It therefore considers that the Government should pay the award made by
the domestic courts. This award consists of a principal debt (in the amount of
EUR 153,475), default interest on the above amount at the rate and for the
period specified by the domestic courts (EUR 22,660), legal costs (EUR 290) and
default interest on the last-mentioned amount at the statutory rate for the
period specified by the domestic courts (EUR 430). The amount of EUR 13,395
which the applicant has already received should be deducted (see paragraph 51
above). The applicant should therefore receive EUR 163,460 in all under this
head.
54. The
Court agrees with the applicant that it would not be fair for her to bear the
loss incurred in the above-mentioned transactions of 30 January 2001,
7 March 2002 and 9 February 2004 since the primary responsibility for the loss
lies with the State for its failure to enforce the judgment at issue in a
timely manner. The difference (EUR 17,282) between the nominal value of the
applicant's savings converted into privatisation coupons and the price of those
coupons actually paid to her should not therefore be deducted from the sums
outlined in the preceding paragraph as being due to her.
55. The
Court also considers it clear that the applicant sustained some non-pecuniary
loss arising from the violations of the Convention found in the present case,
for which she should be compensated. It awards EUR 4,000 under this head.
B. Costs
and expenses
56. The
Court notes that the applicant was granted legal aid under the Court's
legal-aid scheme for the submission of her written observations, for her
appearance before the Court and for secretarial expenses. She has submitted no
claim for additional legal expenses. Accordingly, the Court is not required to
make an award under this head.
C. Default
interest
57. The
Court considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE REASONS, THE
COURT UNANIMOUSLY
1. Holds that there has been a
violation of Article 6 of the Convention;
2. Holds that there has been a
violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, which
should be converted into Bosnian markas at the rate applicable on the date of
settlement:
(i) EUR
163,460 (one hundred and sixty-three thousand four hundred and sixty euros) in
respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros) in respect of non-pecuniary damage; and
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
4. Dismisses the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 31 October 2006, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L.
Early Nicolas Bratza
Registrar President
1
Approximately EUR 1,012,000,000.
JELIČIĆ v.
JELIČIĆ v.