CEDH · CASELAW;CLIN;ENG — 31 octobre 2006

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Bosnia and Herzegovina - 41183/02 Judgment 31.10.2006 [Section IV] Article 6 Civil proceedings Article 6-1 Access to court Statutory prevention of the enforcement of a final judgment in the applicant’s favour: violation   Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Impossibility of obtaining enforcement of final judgment ordering release of money in “frozen” foreign‑currency bank account: violation   Facts :In 1983 the applicant placed a sum of money in German marks in two foreign-currency savings accounts at a bank in the then Socialist Federal Republic of Yugoslavia (“SFRY”). Foreign-currency savings deposited prior to the dissolution of SFRY (“old” foreign-currency savings) fall under a special legal regime in Bosnia and Herzegovina. The applicant was unsuccessful in trying to withdraw her savings and in 1998 she obtained a judgment ordering her bank to release all sums on her accounts together with default interest and legal costs. Since that judgment was not executed, the Human Rights Chamber for Bosnia and Herzegovina found, in 2000, that Republika Srpska(the respondent Entity within the State) had violated the applicant’s rights under the Convention and ordered this Entity to enforce the judgment without further delay. The judgment was not enforced. In 2002 legislation transformed the money in the applicant’s foreign-currency accounts into a public debt attributable to the Republika Srpska. In 2006 the State of Bosnia and Herzegovina took over the debt by virtue of further legislation. These and other laws have prevented enforcement of judgments ordering the release of “old” foreign‑currency savings. Law : Article   6 § 1 – The 1998 judgment, although final and enforceable, had not been executed. The impugned situation had lasted more than four years since the ratification of the Convention by Bosnia and Herzegovina and the judgment debt was the liability of the State. The situation of the applicant was significantly different from that of the majority of “old” foreign-currency savers who had not obtained any judgment ordering the release of their funds. The payment of the award made by the domestic courts in the applicant’s case, even with the accumulated default interest, would not 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 the litigation on the ground of alleged financial difficulties experienced by the State. Further, the evidence was that judgments ordering the release of “old” foreign-currency savings were the exception rather than the norm. That had 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. While a major part of “old” foreign-currency savings might have ceased to exist before or during the dissolution of the former SFRY and the disintegration of its banking and monetary systems, such circumstances fell to be invoked and examined prior to a final domestic determination of a case. Where the courts had finally determined an issue their ruling should not be called into question. In the circumstances of the applicant’s case it had not been justified to delay so long the execution of a final and enforceable judgment, or to intervene in the execution of the judgment in the manner foreseen by the 2006 Act. Hence the essence of her right of access to court had been impaired. Conclusion : violation (unanimously). Article   1 of Protocol No. 1 – For the reasons detailed in the context of Article   6, the interference with the applicant’s possessions had not been justified in the circumstances of her case. Conclusion : violation (unanimously). Article   41 – EUR 163,460 in respect of pecuniary damage and EUR 4,000 for non-pecuniary damage. For further details, see Press Release no. 649.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes