Case No.: CH/97/104, CH/97/106, CH/97/107, CH/98/374, CH/98/386, CH/99/2997, and CH/00/4358
Applicant: Brankica TODOROVIĆ, Smaila HODŽIĆ, Azra HADŽIĆ, Remsa MULALIĆ-PAPO, Žanka ILIĆ, Milenko VIŠNJEVAC and Mihailo JANKOVIĆ
Respondent Party: Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina
Date Delivered: 11 October 2002

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

The applicants are citizens of Bosnia and Herzegovina. Before the dissolution of the Socialist Federal Republic of Yugoslavia, they deposited foreign currency with commercial banks in that country. Because of a growing shortage of such currency and other economic problems, the withdrawal of money from these "old" foreign currency savings accounts was progressively restricted by legislation enacted during the 1980s and early 1990s.

Following the war in Bosnia and Herzegovina, the applicants' requests to withdraw money from their foreign currency savings accounts were all rejected, either without stated reasons or with reference to legislation enacted by the SFRY, the Republic of Bosnia and Herzegovina, or the Federation of Bosnia and Herzegovina. Some of the applicants initiated court proceedings to obtain access to their foreign currency savings, but these actions have all been unsuccessful so far. Although one applicant did obtain a judgement in his favour, he was subsequently informed by the Minister of Finance of the Federation of Bosnia and Herzegovina that the judgement could not be enforced.

According to legislation enacted by the Federation of Bosnia and Herzegovina in 1997 and 1998, in particular the Law on Determination and Settlement of Citizen's Claims in the privatisation Process, claims based on the old foreign currency savings accounts were to be resolved in the process of privatisation of socially and publicly owned property. Under this law, the Federation issued certificates that could be used in the privatisation process to purchase apartments, municipal business premises, shares of enterprises, or other assets. This procedure was designed to settle citizen's claims in a way that would protect the public debt payment system and the banking system from collapse.

On 9 June 2000, in case no. CH/97/48 et al., Poropat and Others v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, involving similarly situated applicants, the Chamber previously decided that, with regard to frozen foreign currency savings accounts, Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina had violated the applicants' rights to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the European Convention on Human Rights. The Chamber ordered, among other remedies, that the Federation of Bosnia and Herzegovina should "amend the privatisation programme so as to achieve a fair balance between the general interest and the protection of the property rights of the applicants as holders of old foreign currency savings accounts."

Between 2 November 2000 and 8 February 2002, the Federation amended various provisions of the Citizens' Claims Law in an effort to comply with the Chamber's order in Poropat and Others. On 8 January 2001, the Constitutional Court of the Federation of Bosnia and Herzegovina determined that Articles 3, 7, 11, and 18 of the Citizens' Claims Law -provisions essential to the scheme of conversion of old foreign currency savings into certificates -were not in accordance with the Constitution of Bosnia and Herzegovina.

The applicants complained that their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 to the European Convention on Human Rights, and their right to a fair hearing within a reasonable time before an independent and impartial tribunal, as guaranteed by Article 6 of the Convention, had been violated.

Admissibility

The Chamber held that the applications were admissible against Bosnia and Herzegovina insofar as they related to Article of Protocol No. 1 to the Convention, but declared the complaints as directed against Bosnia and Herzegovina concerning the lack of access to the courts as guaranteed by Article 6 of the Convention inadmissible ratione personae. The Chamber held that it was competent ratione personae to consider the applications against the Federation in their entirety.

Having regard to the attempts by the applicants to achieve redress through the court system, the Chamber considered that there were no effective remedies available that the applicants should be required to exhaust. Additionally, the failure of Ms. Mulalic-Papo, Ms. Ilic, and Mr. Jankovic to initiate proceedings, and the withdrawal by Ms. Hodžic of her action, do not preclude the Chamber from examining their applications.

The respondent Parties raised the objection res judicata as the claims were substantially the same as a matter which had already been examined by the Chamber. The Chamber concluded that its decision in Poropat and Others did not involve any of the present applicants; thus, the principle of res judicata could not attach to it. Additionally, the Chamber considered that the current state of the law affecting old foreign currency savings, following the decision of the Federation Constitutional Court, raised new issues that have neither been considered nor resolved by the Chamber.

Finally, the Chamber considered whether the application in respect of Mr. Višnjevac was inadmissible under the six-month rule. The Chamber concluded that as the alleged violation consists of a continuing situation, the six-month limit can have no application until the situation comes to an end, which it has not.

Merits

The Chamber recognized the Federation of Bosnia and Herzegovina's amendments to the relevant laws in an effort to comply with the Chamber's earlier decision in Poropat and Others. However, due to the 8 January 2001 decision of the Federation Constitutional Court declaring some of these laws unconstitutional, the continued application of the laws, the lack of a legislative response, and the apparent unavailability of relief in the domestic courts, the Chamber found a state of legal uncertainty causing an ongoing interference with the applicants' property rights. While noting that the Federation's legislative measures had been pursued in accordance with the general interest, the Chamber found no justification for the respondent Parties' failure to address the prevailing legal uncertainty and the resulting interference with the applicants' property rights. The current situation places a disproportionate burden on individual account holders, and the Federation of Bosnia and Herzegovina has therefore violated the applicants' rights guaranteed by Article 1 of Protocol No. 1 to the Convention. Because of its general responsibility for issues related to old foreign currency savings, the Chamber also found a violation of Article 1 of Protocol No. 1 to the Convention by Bosnia and Herzegovina.

The Chamber also found a violation of Article 6 of the Convention by the Federation of Bosnia and Herzegovina because of the de facto denial of access to court to the applicants. In the case of Milenko Višnjevac, the Chamber found a specific violation of Article 6 of the Convention for the Federation's failure to enforce the applicant's valid court judgment.

Remedies

The Chamber ordered the Federation of Bosnia and Herzegovina to remove the prevailing legal uncertainty surrounding old foreign currency savings accounts by enacting, within six months from the date of delivery of its decision, relevant and binding laws or regulations that clearly address this problem in a manner compatible with Article 1 of Protocol No. 1 to the Convention, as interpreted in the Chamber's decision in Poropat and Others and the present decision. The actual method of resolving the situation and eliminating the prevailing legal uncertainty shall be determined by the Federation. The Chamber also reserved the right to order additional remedies in these cases six months after the date of its decision.

Decision adopted 7 October 2002
Decision delivered 11 October 2002