FOURTH
SECTION
FINAL
DECISION
AS
TO THE ADMISSIBILITY OF
Application
no. 27912/02
by Mustafa SULJAGIĆ
against
The
European Court of Human Rights (Fourth Section), sitting on 20 June 2006 as a
Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
and Mr T.L. Early, Section Registrar,
Having
regard to the above application lodged on 2 July 2002,
Having
regard to the observations submitted by the respondent Government and the
observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
The
applicant, Mr Mustafa Suljagić, is a citizen of
A. The
circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as follows.
Prior
to the dissolution of the former Socialist Federal Republic of Yugoslavia (“the
SFRY”) the applicant deposited foreign currency in his six bank accounts at the
then Privredna banka
The
applicant attempted to withdraw his funds on several occasions to no avail.
On
10 April 1998 the applicant complained to the Constitutional Court of Bosnia and Herzegovina
(“the
On
16 April 1998 the
On
15 July 1999 the Tuzlanska banka (the legal successor of the Privredna
banka
On
22 September 1999 the applicant complained to the Human Rights Chamber which
was set up by the Agreement on Human Rights (Annex 6 to the 1995 General
Framework Agreement for Peace).
On
6 April 2005 the Human Rights Commission within the Constitutional Court (the
legal successor of the Human Rights Chamber) issued the Besarović and
310 Others decision (described in detail in “Relevant law and practice”
below) which included the applicant in the present case. Violations of Article
6 of the European Convention on Human Rights and Article 1 of Protocol No. 1 to
that Convention were found.
It
would appear that the balance in the applicant’s accounts is approximately
131,000 euros. However, this amount must be verified in accordance with the Old
Foreign-Currency Savings Act 2006.
B. Relevant
law and practice
1. Legislation
of the former
Foreign-currency
accounts were a guarantee of the former Socialist Federal Republic of
Yugoslavia (“the SFRY”). The former
2. The
1995 General Framework Agreement for Peace (“the
Three
principal parties to the 1992-95 war in
(a) Constitution
of
The
Constitution entered into force on 14 December 1995. Declarations on behalf of
The
Constitutional Court of Bosnia
and Herzegovina (“the
Following
an application for an abstract constitutionality review lodged by the then
Speaker of the House of Representatives of the Parliament of Bosnia and Herzegovina, on 2 December 2005 the
Constitutional Court decided that the constituent units of Bosnia and Herzegovina lacked jurisdiction to
enact laws concerning “old” foreign-currency savings. Their legislation was
therefore annulled. The
A
number of individuals have complained to the
The
following is the relevant part of this decision:
“...
54. In
this respect, the
55. The
Constitutional Court states that the first indication of an ineffective legal
system with regard to the payment of old foreign currency savings is the fact
that
56. Having
regard to the above, the Constitutional Court considers that there are no
effective remedies available to the appellants that they should be required to
exhaust. In these circumstances, the Constitutional Court is not precluded from
considering the applications...
...
77. ...
[T]he Constitutional Court finds that the State has to regulate in a certain
manner this issue...
78. Since
the State of Bosnia and
Herzegovina has not enacted framework [legislation] to principally regulate
these issues, the Constitutional Court finds that Bosnia and Herzegovina failed to efficiently
protect the appellants’ right to possession, thereby being in breach of its
positive obligations arising from Article 1 of Protocol No.1 to the European
Convention.
...
92. In
the part relating to the admissibility of appeals [above], the Constitutional
Court concluded that [most of] the appellants have not exhausted remedies,
which has not been necessary because the Entity, as the competent one in that
sense, has not provided for the efficient legal system. For that reason, the
Constitutional Court considers that the appellants, regardless of the fact that
their old foreign currency savings have not been reimbursed ..., had no
institutional protection or possibility to address any court or other organ...
93. For
all [the reasons] stated above, the Constitutional Court concludes that there
has been a violation of the appellants’ rights under Article 6 § 1 of the
European Convention, the Federation of Bosnia and Herzegovina being responsible for it.
...”
On
9 February 2006 the Constitutional Court pronounced decision no. AP 494/05
which dealt with 50 applicants with savings in banks located in both Entities
of Bosnia and
Herzegovina. The same conclusions were reached as in the decision no. AP 130/04
cited above. Two appellants claimed compensation for non-pecuniary damage. The
Constitutional Court rejected their claims on the ground that an award of
damages would have further complicated the already burdensome matter of the
“old” foreign-currency savings.
(b) Agreement
on Human Rights
The
Agreement on Human Rights was signed by Bosnia and Herzegovina and its constituent
Entities on 14 December 1995, when it entered into force. For its relevant
provisions, see the Jeličić decision cited above.
The
former Human Rights Chamber was set up pursuant to this Agreement. On 31
December 2003 it was replaced by the Human Rights Commission within the
Constitutional Court (“the Commission”) with a mandate to decide on cases
received by the Human Rights Chamber up to that moment.
(i) Poropat
and 3 Others, decision nos. CH/97/48 et al. of 9 June 2000
The
Human Rights Chamber delivered its first decision in connection with “old”
foreign-currency savings on 9 June 2000. It concerned “old” foreign-currency
savings in banks located in the Federation of Bosnia and Herzegovina. The matter at issue at
that stage was regulated by the Entities’ privatisation legislation in
accordance with which “old” foreign-currency savers could use their savings
within a limited period of time for the purchase of State-owned apartments in
which they lived and/or for the purchase of State-owned companies. It was also
possible to sell “old” foreign-currency savings on the secondary market for a
fraction of their nominal value. The Human Rights Chamber examined the relevant
legislation of the Federation of Bosnia
and Herzegovina and found that it placed an excessive burden on the applicants
in violation of Article 1 of Protocol No. 1 to the European Convention on Human
Rights (“the Convention”). The Federation of Bosnia and Herzegovina was thus ordered to amend
its privatisation programme so as to achieve a fair balance between the general
interest and the protection of the applicants’ property rights. The Human
Rights Chamber further found that Bosnia
and Herzegovina had failed to take adequate action at the State level to secure
to the applicants as “old” foreign-currency savers their property rights,
having thereby failed to fulfil its positive obligation under Article 1 of
Protocol No. 1 to the Convention. The applicants were awarded legal costs.
Their claims for compensation for the entire amount of their “old”
foreign-currency savings were rejected. The Human Rights Chamber explained that
its findings of violations under Article 1 of Protocol No. 1 to the Convention
were not directly based on the applicants’ inability to withdraw money from
their savings accounts but concerned the failure of Bosnia and Herzegovina to take adequate action in
regard to the savings and the failure of the Federation of Bosnia and Herzegovina to strike a fair balance
between the relevant interests as described above.
(ii) Todorović
and 6 Others, decision nos. CH/97/104 et al. of 11 October 2002
On
11 October 2002 the Human Rights Chamber delivered another decision in
connection with the same matter: “old” foreign-currency savings in banks located
in the Federation of Bosnia
and Herzegovina. While recognising the efforts of the Federation of Bosnia and Herzegovina to
implement the Poropat and 3 Others decision through amendments to the
privatisation legislation, the Human Rights Chamber concluded that there was
still an excessive burden on the applicants in violation of Article 1 of
Protocol No. 1 to the Convention. The Federation of Bosnia and Herzegovina was obliged once more to
regulate the matter at issue in a manner compatible with the Convention. In so
far as Bosnia and
Herzegovina is concerned, the Human Rights Chamber came to the same conclusion
as in the Poropat and 3 Others decision.
It
was noted that no court proceedings initiated in order to obtain disbursement
of “old” foreign-currency savings had been successful. The decision continued,
in the relevant part, as follows:
“106.
... In most cases, the actions have languished in the courts for periods of
years with no movement whatsoever. In the only case where an applicant has
received a decision on the merits, his favourable court judgment was
subsequently deemed unenforceable.”
The
Human Rights Chamber concluded that it was not precluded from examining the
cases in which the applicants failed to pursue any court proceedings. It also found
a de facto denial of access to court in violation of Article 6 of the
Convention in respect of those applicants.
The
applicants were awarded legal costs.
(iii) Decision
on further remedies of 4 July 2003 in the above-mentioned Poropat and 3 Others and
Todorović and 6 Others
The
Human Rights Chamber found that the human-rights violations continued and
ordered the Federation of Bosnia
and Herzegovina and Bosnia
and Herzegovina to pay each of the applicants 2,000 Bosnian markas
(approximately 1,000 euros) or the full balance of his or her “old”
foreign-currency savings, whichever was less, the costs to be borne equally
between the respondent Parties. The Human Rights Chamber considered that the
amounts of those payments should be deducted from any future recovery of “old”
foreign-currency savings.
(iv) Kugić
and 3 Others, decision nos. CH/98/420 et al. of 10 October 2003
On
10 October 2003 the Human Rights Chamber delivered its first decision in
connection with “old” foreign-currency savings in banks located in the
Republika Srpska. The situation in that Entity in the relevant period was
summarised as follows:
“158.
In the privatisation process, citizens’ old foreign currency savings claims are
recorded on a Unique Citizen’s Account and can be transferred to: (1)
certificates valid for partial payment for apartments for which an occupancy
right exists; or (2) coupons valid for purchases in the privatisation of
state-owned enterprises or business premises. Participation is purely
voluntary. Old foreign currency savings holders might choose to partly or fully
convert their savings to take advantage of these privatisation opportunities or
to sell their coupons in the secondary market. Alternatively, they have the option
of holding them in their current form in hopes of future realisation of cash
payment.
159.
The Chamber notes several positive aspects of the Republika Srpska
privatisation process as it relates to old foreign currency savers. First, the
program is voluntary and therefore offers savers a choice in the manner of
dealing with their accounts. Second, there appears to be little risk related to
the two-year expiration period for coupons. As Ms. Milašinović of the
Republika Srpska’s Directorate for Privatisation explained, investors in the
privatisation process typically execute a purchase contract before going
through with the actual conversion of savings into coupons, thus minimising the
risk that coupons will expire. Finally, savers may also choose to convert their
savings to sell privatisation coupons on the secondary market, which,
considering the overall economic situation in Bosnia and Herzegovina, offers a reasonable rate
of return. While the Republika Srpska Directorate for Privatisation does not
get involved in sales of privatisation coupons on the secondary market, such
sales are clearly not illegal and are conducted openly in the Republika Srpska.
As Professor Stojanov, [Office of the High Representative], and Ms.
Milašinović have stated, the current value of privatisation coupons on the
secondary market is approximately 40 to 60 percent of their nominal value, a
figure consistent with the applicants’ experience. Professor Stojanov opined,
however, that this rate is likely to drop. Nonetheless, he noted that the
Republika Srpska’s privatisation process has been structured such that massive
devaluation of privatisation coupons has not yet occurred, and he stated that
the secondary market may provide the best option for some citizens to obtain
some level of return on their old foreign currency savings.
160.
At the same time, the Chamber notes that certain categories of old foreign
currency savers might find it difficult to participate in the privatisation
process. Persons with small levels of savings might not have sufficient assets
to invest on their own, particularly as the process moves forward towards
privatisation of larger businesses. Although Ms. Milašinović stated that
persons can contract to participate jointly, the process appears to be more accessible
to those with larger savings. Further, old foreign currency savings holders who
lack sufficient funds to satisfy the cash deposit requirement (ranging between
three and ten percent of the total purchase price) may find themselves excluded
de facto from the privatisation process. Both the President and Legal
Representative of the Association of the Citizens of the Republika Srpska with
Old Foreign Currency Savings Accounts stated that this was a serious hindrance
to their members’ participation in the process. Further, the privatisation of
state-owned apartments is only open to those holding an occupancy right over
such an apartment, a requirement that will exclude many savers from that
option. Finally, Articles 19 and 20 of the Law on Privatisation of State
Capital in Enterprises exclude persons who are not citizens of the Republika
Srpska from participating in the privatisation process. The Republika Srpska’s
Directorate for Privatisation was unable to state how many persons are affected
by this, but it appears that such persons are fully excluded. Although the
Republika Srpska contends that they may participate in the privatisation of
state-owned apartments, this conclusion is not supported by the statutory
language; and, in any case, non-citizens as a group are less likely to hold an
occupancy right over an apartment in the Republika Srpska, as Entity
citizenship is linked to the place of residence.”
In
respect of the applicants who were citizens of the Republika Srpska, the Human
Rights Chamber concluded that, given the prevailing economic situation in Bosnia and Herzegovina, a
fair balance had been struck between the general interests and the applicants’
individual rights.
In
respect of the applicant who was not a citizen of the Republika Srpska, the
Human Rights Chamber found a violation of Article 1 of Protocol No. 1 to the
Convention, taken alone and in connection with Article 14 of the Convention, by
the Republika Srpska. In addition, a violation of Article 1 of Protocol No. 1
to the Convention by Bosnia
and Herzegovina, in respect of the same applicant, was found for the reasons
adopted in the above-mentioned Poropat and 3 Others decision (failure to
take adequate action at the State level to secure to the applicant as an “old”
foreign-currency saver his property rights). The Republika Srpska was ordered
to ensure that the applicant, as a non-citizen, enjoyed the same rights and
options as the other applicants, who were citizens of the Republika Srpska,
with regard to his “old” foreign-currency savings.
(v) Đurković
and 36 Others, decision nos. CH/98/377 et al. of 7 November 2003
On
7 November 2003 the Human Rights Chamber delivered another decision in
connection with “old” foreign-currency savings in banks located in the
Federation of Bosnia and
Herzegovina. It concluded that the violation of Article 1 of Protocol No. 1 to
the Convention continued and made the same orders as in the above-mentioned
decision on further remedies of 4 July 2003 in Poropat and 3 Others and
Todorović and 6 Others. It was considered unnecessary to examine the
applications also under Article 6 of the Convention.
(vi) Besarović
and 310 Others, decision nos. CH/98/375 et al. of 6 April 2005
On
different dates in 2004 the constituent units of Bosnia and Herzegovina introduced new legislation
on “old” foreign-currency savings. While the new legislation did not abolish
the possibility of using such savings in the privatisation process in
accordance with the previously adopted legislation, those who did not wish to
use so their “old” foreign-currency savings were now entitled to receive a part
of their savings in cash and the remaining part in State bonds.
The
compliance with the Convention of the new legislation of the Federation of Bosnia and Herzegovina was
examined in the Besarović and 310 Others decision of 6 April 2005.
The Commission, which meanwhile inherited the cases of the former Human Rights
Chamber, analysed the provisions defining the verification process (that is,
the process in which the exact amount of one’s “old” foreign-currency savings
was to be determined). It decided that adequate procedural guarantees were
lacking as, inter alia, there was no right to appeal to a “tribunal”
which would satisfy the requirements of Article 6 of the Convention. As to the
envisaged repayment of “old” foreign-currency savings in cash and in State
bonds, the Commission considered this approach to be, in principle, justified
given the prevailing economic situation. It was explained that the question of
“old” foreign-currency savings needed to be assessed in the light of numerous
other financial obligations of Bosnia
and Herzegovina. The Commission continued:
“...1240. The
Commission notes that the damage suffered by holders of “old” foreign-currency
savings is not the only one. Since the beginning of the 1990s, many suffered a
loss ... The State is charged not only with repairing a damage and redressing a
wrong, but also with developing a prosperous society. In other words, in
special circumstances, the State must reconcile the past and the future within
the limits of the possible ...”
At
the same time, the Commission found it unsatisfactory that it was left to the
executive to determine definitively when the State bonds would become due and
whether they would earn interest. In the light of the above, the Commission
established a violation of Article 1 of Protocol No. 1 to the Convention by the
Federation of Bosnia
and Herzegovina.
It
was further found that Bosnia
and Herzegovina continued to violate Article 1 of Protocol No. 1 to the
Convention due to its continuous failure to regulate the matter of “old”
foreign-currency savings (as in the above-mentioned Poropat and 3 Others decision).
Lastly,
the Commission established that the applicants did not have at their disposal
any effective domestic remedies for the alleged breach and that the Federation
of Bosnia and
Herzegovina thereby violated Article 6 of the Convention (failure to secure
effective access to court).
Pursuant
to this decision (as amended on 8 February 2006 in order to harmonise it with
the Constitutional Court’s decision no. U 14/05 of 2 December 2005 indicated
above), Bosnia and
Herzegovina was obliged to pass framework legislation on the matter of “old”
foreign-currency savings by 17 April 2006. Each applicant was awarded 500
Bosnian markas (approximately 250 euros) for non-pecuniary damage and legal
costs.
(vii) Halilović
and 95 Others, decision nos. CH/98/366 et al. of 12 May 2005
This
decision dismissed as not imputable to the respondent Parties (that is,
incompatible ratione personae) complaints directed against Bosnia and Herzegovina and
the Federation of Bosnia
and Herzegovina concerning “old” foreign-currency savings in local branches of
the Ljubljanska banka and Invest banka (prior to the dissolution
of the former SFRY, those banks had their respective seats in Ljubljana and
Belgrade). As to complaints concerning “old” foreign-currency savings in local
banks, the Commission adopted the same conclusions as in the Besarović
and 310 Others decision.
Following
the Besarović and 310 Others and Halilović and 95
Others decisions, the Commission has issued at least 15 similar decisions
(concerning, in total, more than 800 “old” foreign-currency savers).
(c) Overlapping
of the jurisdiction of the Constitutional Court and that of the former Human
Rights Chamber or the Human Rights Commission within the Constitutional Court
In
accordance with the long-standing jurisprudence (see, for example, the
Constitutional Court’s decision no. U 7/98 of 26 February 1999 and the Human Rights
Chamber’s decision no. CH/00/4441 of 6 June 2000), it is not possible, either
simultaneously or consecutively, to pursue a case both before the
Constitutional Court and the Human Rights Chamber (or its successor). It would
appear from that jurisprudence that the rule applies solely to situations when
there is an overlapping of jurisdictions between the bodies at issue.
If,
however, the Constitutional Court declines jurisdiction, the former Human
Rights Chamber (and its successor) may deal with the case.
3. Legislation
of Bosnia and
Herzegovina
Bosnia and Herzegovina is the legal successor of the former
Republic of Bosnia and
Herzegovina (in accordance with Article 1 of the Constitution of Bosnia and Herzegovina). Therefore, the guarantee
for “old” foreign-currency accounts, which the Republic of Bosnia and Herzegovina had previously taken over
from the SFRY, shifted to Bosnia
and Herzegovina. In that capacity, Bosnia and Herzegovina concluded the 2001 Agreement on
Succession Issues with four other successor States to the SFRY which, inter
alia, dealt with the issue of “old” foreign-currency savings (for the
relevant provisions see the Jeličić decision cited above).
On
4 August 1998 Bosnia
and Herzegovina authorised its constituent Entities (namely, the Federation of Bosnia and Herzegovina and
the Republika Srpska) to privatise State-owned banks in their respective
territories and to dispose of the proceeds so acquired (sections 2 and 4 of the
Privatisation of Companies and Banks Framework Act 1998; Okvirni zakon o
privatizaciji preduzeća i banaka u Bosni i Hercegovini; published
in OG BH nos. 14/98 of 27 July 1998 and 12/99 of 2 August 1999; amendments
published in OG BH nos. 14/00 of 22 May 2000 and 16/02 of 11 July 2002).
Furthermore, the liability for claims against State-owned banks, including
those arising from “old” foreign-currency accounts, was transferred to the
privatising Entity (section 4). Since the Entities were not provided with any
guidelines as to how to regulate the matter of “old” foreign-currency savings,
they adopted, to some extent, different arrangements. The Brčko District
of Bosnia and
Herzegovina (established on 8 March 2000 as a unit of local self-government
existing under the sovereignty of Bosnia
and Herzegovina) also had its own arrangements.
Following
the above-mentioned decisions of the former Human Rights Chamber, the
Commission and the Constitutional Court, Bosnia and Herzegovina passed the Old
Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare
devizne štednje; published in OG BH no. 28/06 of 14 April 2006). This 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 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 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.
Section
2
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.
Section
3(1)
According
to preliminary data ... old foreign-currency savings amount to 1,979,000,000
Bosnian markas2. 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
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. In
case of agreement with 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 markas3, 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 markas4, 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.”
4. Legislation
of the Federation of Bosnia
and Herzegovina
(a) Settlement
of Claims Against the Federation of Bosnia and Herzegovina Act 1997 (Zakon o utvrđivanju
i realizaciji potraživanja građana u postupku privatizacije; published
in the Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH” – no. 27/97 of 28 November
1997; amendments published in OG FBH nos. 8/99 of 5 March 1999, 45/00 of 25
October 2000, 54/00 of 26 December 2000, 32/01 of 24 July 2001, 27/02 of 28
June 2002, 57/03 of 21 November 2003 and 44/04 of 21 August 2004)
This
Act has been in force since 28 November 1997. It provides that the Federation
of Bosnia and
Herzegovina, and no longer the banks located in its territory, is liable for
the “old” foreign-currency savings under the following conditions:
Section
3(1) (as amended on 5 March 1999)
“A
person who has foreign-currency savings in banks or any of their branches
located in the territory of the Federation of Bosnia and Herzegovina in an amount exceeding 100
[Bosnian markas]5, who was a
citizen of the former Socialist Republic of Bosnia and Herzegovina and who, on 31 March 1991,
was permanently residing in the territory which is now the Federation of Bosnia and Herzegovina
shall acquire a claim against the Federation of Bosnia and Herzegovina in the amount of the
balance in his or her savings accounts on 31 March 1992.”
The
“old” foreign-currency savings were to be registered at special accounts
administered by the Privatisation Agency of the Federation of Bosnia and Herzegovina without prior agreement of
savers (section 5, as amended on 1 January 2001, and sections 7, 10 and 11).
The “old” foreign-currency savers had to use their claims against such special
accounts within a limited period of time (after which expiration they ceased)
for the purchase of State-owned apartments in which they lived and/or for the
purchase of State-owned companies (sections 15 and 18). The claims were
transferable, which included a possibility of selling them on the secondary
market for a fraction of their nominal value (section 16).
Following
the above-mentioned decisions of the former Human Rights Chamber (see, for
example, the Poropat and 3 Others decision above) and the judgment of the
Constitutional Court of the Federation of Bosnia and Herzegovina of 8 January 2001 which
declared sections 3, 7, 11 and 18 of this Act unconstitutional (published in OG
FBH no. 7/01 of 9 March 2001), this Act has been amended. As of 29 November
2003, each saver is free to choose whether this Act will continue to be
applicable to his or her “old” foreign-currency savings or not. On 23 August
2004 section 5a was introduced: this Act is no longer applicable to one’s “old”
foreign-currency savings, unless he or she submitted a statement to contrary to
the Ministry of Finance of the Federation of Bosnia and Herzegovina by 23 November 2004. If
such a statement was indeed submitted, the “old” foreign-currency savings could
be used for the purchase of State-owned companies until 30 June 2006 and for
the purchase of State-owned apartments until 30 June 2007 (section 18, as
amended on 23 August 2004).
(b) Privatisation
of Companies Act 1997 (Zakon o privatizaciji preduzeća; published
in OG FBH no. 27/97 of 28 November 1997; amendments published in OG FBH nos.
8/99 of 5 March 1999, 32/00 of 30 August 2000, 45/00 of 25 October 2000, 54/00
of 26 December 2000, 61/01 of 31 December 2001, 27/02 of 28 June 2002, 33/02 of
19 July 2002, 28/04 of 26 May 2004 and 44/04 of 21 August 2004)
This
Act has been in force since 6 December 1997. Sections 20 and 28 of this Act, as
amended on 23 August 2004, provide that one can use his or her “old”
foreign-currency savings for the purchase of certain (mainly smaller)
State-owned companies until 30 June 2006 under the condition that a minimum 90%
of the price is paid in cash. Prior to those amendments (that is, between 2
November 2000 and 23 August 2004), it was possible to pay the full price of a
State-owned company with one’s “old” foreign-currency savings.
(c) Settlement
of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja
unutrašnjih obaveza Federacije Bosne i Hercegovine; published in OG FBH no.
66/04 of 27 November 2004; amendments published in OG FBH no. 49/05 of 8 August
2005)
This
Act has been in force since 29 November 2004. However, the relevant provisions
(concerning the matter of “old” foreign-currency savings) were annulled with
effect as from 17 January 2006 (see the Constitutional Court’s decision no. U
14/05 of 2 December 2005 above).
5. Status
of the bank in which the applicant has deposited funds
The
Privredna banka Sarajevo – Osnovna banka Tuzla was a branch of the
State-owned Privredna banka Sarajevo. In 1990 it became a separate bank,
named Tuzlanska banka. In 1998 it was privatised and subsequently became
part of the Slovenian-based Nova Ljubljanska banka Group.
COMPLAINT
The
applicant complained under Article 1 of Protocol No. 1 to the Convention about
his inability to dispose freely of his “old” foreign-currency savings.
THE LAW
The
applicant deposited foreign currency in the bank indicated above during the
1970s and 1980s (that is, prior to the dissolution of the former Socialist
Federal Republic of Yugoslavia – “the SFRY”). Although in 1992 Bosnia and Herzegovina took over the guarantee for
“old” foreign-currency savings from the former SFRY, the applicant has never
been able to dispose freely of his savings, due to various statutory
provisions. The applicant could have converted his savings to privatisation
coupons which he could have used to purchase State-owned companies. Under
recent legislation, he can expect to receive approximately 500 euros in cash
and the remaining amount of his savings in State bonds (see “Relevant law and
practice” above).
The
applicant complained about this situation under Article 1 of Protocol No. 1 to
the Convention. That provision 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.”
A. The
legal nature of the former Human Rights Chamber and the Human Rights Commission
within the Constitutional Court
The
Government argued that the present case was substantially the same as a matter
that had already been submitted to “another procedure of international
investigation or settlement” within the meaning of Article 35 § 2 (b) of the
Convention, the former Human Rights Chamber being such a procedure. Since no
relevant new information had been submitted by the applicant, the Government
submitted that the application was inadmissible. The Government also maintained
that the applicant should have chosen the Constitutional Court over such an
international body. The applicant disagreed.
The
Court has already resolved the issue of the legal nature of the former Human
Rights Chamber: that body was not considered to be an “international” one
within the meaning of Article 35 § 2 (b) of the Convention (see the Jeličić
decision cited above). The Court does not see any reason why the same
conclusion would not apply to the Human Rights Commission within the
Constitutional Court. Proceedings before the latter body should also be
considered a “domestic” remedy within the meaning of Article 35 § 1 of the
Convention.
The
Government’s objection is therefore dismissed.
B. The
applicant’s victim status
The
recent Old Foreign-Currency Savings Act 2006 has substantially changed the
situation about which the applicant complained. Prior to that Act, the
applicant could only use his “old” foreign-currency savings to purchase
State-owned companies under certain conditions. At present, the applicant would
be entitled to receive approximately 500 euros by the end of 2007 and the
remaining part of his “old” foreign-currency savings in State bonds. As to past
loss, the applicant is entitled to interest at an annual rate of 0.5% for the
period between 1 January 1992 and 15 April 2006 (that is, approximately 9,300
euros for the entire period, calculated on the basis of the applicant’s
estimation of the amount of his savings which must be verified in accordance
with the Old Foreign-Currency Savings Act 2006). Moreover, the Human Rights
Commission within the Constitutional Court found a violation of Article 6 of
the Convention and Article 1 of Protocol No. 1 to the Convention in the
applicant’s case and awarded him approximately 250 euros for non-pecuniary
damage and legal costs. Therefore, a question arises as to whether the
applicant has ceased to be a victim of the alleged breach within the meaning of
Article 34 of the Convention.
The
Court recalls in this connection that an individual may no longer claim to be a
victim of a violation of the Convention where the national authorities have
acknowledged, either expressly or in substance, a breach of the Convention and
afforded redress (see Posokhov v. Russia, no. 63486/00,
§ 35, ECHR 2003-IV).
While
there is no provision of the Old Foreign-Currency Savings Act 2006 expressly
stating that the human rights of numerous “old” foreign-currency savers have
previously been violated, it is the case that the said Act was passed with a
view to implementing the decisions of the Constitutional Court, the former
Human Rights Chamber and the Human Rights Commission within the Constitutional
Court. In any case, the applicant obtained an acknowledgment of a violation of
the Convention from the competent domestic body.
However,
as to redress, the Court reiterates that, it is only where the redress can be
considered to be appropriate and sufficient, the applicant may lose his victim
status (see Scordino v. Italy (no. 1) [GC], no. 36813/97,
§ 193, ECHR 2006-...). This question of redress goes to the heart of the
issue as to whether the requirements of the right of property under
Article 1 of Protocol No. 1 were complied with in the particular
circumstances (see immediately below). It would thus, in the Court’s view, be
more appropriately examined at the merits stage (see, mutatis mutandis,
Broniowski v. Poland (dec.) [GC], no. 31443/96, ECHR 2002-X).
The
Court accordingly joins the question of the applicant’s victim status to the
merits of the case.
C. Compliance
with Article 1 of Protocol No. 1 to the Convention
The
parties disputed whether the statutory restrictions on the use of “old”
foreign-currency savings were “necessary” within the meaning of Article 1 of
Protocol No. 1 to the Convention given the proportions of the public debt and
the overall situation in post-war Bosnia
and Herzegovina.
The
Court considers, in the light of the parties’ submissions, that the application
raises serious issues of fact and law under the Convention, the determination
of which requires an examination of the merits.
No
other ground for declaring the application inadmissible has been established.
For these reasons, the Court unanimously
Joins
to the merits the question of the applicant’s victim status;
Declares
the application admissible, without prejudging the merits of the case.
T.L.
Early Nicolas Bratza
Registrar President
2
Approximately 1,012,000,000 euros.
SULJAGIĆ v.
SULJAGIĆ v.