PROCEDURE

1.  The case originated in an application (no. 27912/02) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a citizen of , Mr Mustafa Suljagić (“the applicant”), on 2 July 2002.

2.  The applicant alleged that the domestic legislation on “old” foreign-currency savings failed to strike a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1 to the Convention.

3.  By a decision of 20 June 2006 the Court joined to the merits the question of the applicant's victim status and declared the application admissible.

3.  By a decision of 20 June 2006 the Court joined to the merits the question of the applicant's victim status and declared the application admissible.

4.  The applicant and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from two associations, the Association for the Protection of Foreign-Currency Savers in Bosnia and Herzegovina (Udruženje za zaštitu deviznih štediša u Bosni i Hercegovini) from the Federation of Bosnia and Herzegovina and the Association for the Return of Foreign-Currency Savings in Bosnia and Herzegovina and Diaspora (Udruženje građana za povrat stare devizne štednje u Bosni i Hercegovini i dijaspori) from the Republika Srpska, which had been invited to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to each other's observations and the third parties' comments at the hearing (Rule 44 § 5).

5.  A hearing took place in public in the Human Rights Building, , on 10 March 2009 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Mr Suljagić and Ms Mijić.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Relevant background to the present case

A.  Relevant background to the present case

6.  The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”).

6.  The present case relates to the issue of “old” foreign-currency deposits (foreign currency deposited before the dissolution of the Socialist Federal Republic of Yugoslavia – “the SFRY”).

7.  Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka ).

7.  Until the 1989/90 economic reforms (the so-called Marković reforms, named after the then Prime Minister Ante Marković), the commercial banking system of the SFRY consisted of self-managed basic and associated banks. Basic banks, founded and nominally controlled by socially owned enterprises, carried on day-to-day commercial banking activities. Two or more basic banks could form an associated bank through a self-management agreement, while preserving their legal personality. In the SFRY, there were more than 150 basic banks and nine associated banks (namely Jugobanka Beograd, Beogradska udružena banka Beograd, Vojvođanska banka Novi Sad, Kosovska banka Priština, Udružena banka Hrvatske Zagreb, Ljubljanska banka Ljubljana, Privredna banka Sarajevo, Stopanska banka Skopje and Investiciona banka ).

8.  Hard-pressed for hard currency as it was, the SFRY made it attractive for its expatriate workers and other citizens to deposit their foreign currency with commercial banks based in the SFRY: such deposits earned high interest (the annual interest rate often exceeded 10%) and were guaranteed by the State (see, for example, section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989).

9.  The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of . Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of  was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988).

9.  The Foreign-Currency Transactions Act 1977 introduced a system for redepositing of foreign currency by commercial banks with the National Bank of . Although the system was optional, it allowed commercial banks to shift the currency risk to the State and practically all foreign currency was thus redeposited. In addition, the National Bank of  was required to grant national-currency loans (initially, interest-free) to commercial banks to the value of the redeposited foreign currency. It should be underlined, however, that such redepositing was as a rule only a paper transaction, because commercial banks had insufficient liquid funds: it would appear that commercial banks redeposited in total 12.2 billion United States dollars (USD), out of which only USD 1.7 billion (approximately 14%) was actually transferred to the National Bank of Yugoslavia (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, §§ 36 and 39, ECHR 2008-...; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). In 1988 the system of redeposits was brought to an end (see section 103 of the Foreign-Currency Transactions Act 1985, as amended on 15 October 1988).

10.  Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen.

10.  Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. The national economy was on the verge of collapse and the SFRY resorted to emergency measures, such as statutory restrictions on the repayment of foreign-currency deposits (see section 71 of the Foreign-Currency Transactions Act 1985). As a result, foreign-currency deposits were practically frozen.

11.  Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged.

11.  Within the framework of the Marković reforms, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the associated banks to which they had beforehand belonged.

12.  Some important features of the banking system remained, however, unaffected by the reforms. First of all, commercial banks remained under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the SFRY. Secondly, both commercial banks and the State had financial obligations arising from foreign-currency savings: depositors were entitled to collect their deposits at any time, together with accumulated interest, from commercial banks (see sections 1035 and 1045 of the Civil Obligations Act 1978) or, in the event of a commercial bank's “manifest insolvency” or bankruptcy, from the State (see sections 1004(2) and 1007(2) of the Civil Obligations Act 1978, section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and a decision of the SFRY Government of 23 May 1990).

13.  In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and .

13.  In 1991/92 the SFRY ceased to exist. It was replaced by five successor States: Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and .

14.  A brutal war started in  shortly after its declaration of independence. During the war,  took over the statutory guarantee for “old” foreign-currency savings from the SFRY (pursuant to section 6 of the SFRY Legislation Application Act 1992). Furthermore, the concept of “social ownership” was abandoned (see the Social Ownership Transformation Act 1993 and the Social Ownership Transformation Act 1994). As a result, all commercial banks based in  were effectively nationalised. While the use of “old” foreign-currency savings was allowed in some exceptional situations during the war, it would appear that this possibility remained only theoretical (see a decision of the Presidency of the  of 18 February 1993 and a decision of the National Bank of the Republika Srpska of 17 June 1993).

15.  On 14 December 1995 the General Framework Agreement for Peace in  (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of ”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of  and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of  under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of  and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006.

15.  On 14 December 1995 the General Framework Agreement for Peace in  (“the Dayton Peace Agreement”) entered into force. It confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure (Article 1 § 1 of Annex 4 to the Dayton Peace Agreement, named the “Constitution of ”). In accordance with Article 1 § 3 of Annex 4, Bosnia and Herzegovina consists of two Entities: the Federation of  and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). Meanwhile, the rural parts of the pre-war Brčko municipality remained under the control of the Federation of Bosnia and Herzegovina and the town of  under the control of the Republika Srpska. An arbitral tribunal issued its final award on 5 March 1999. It suspended the legal authority of the Entities within the whole territory of the pre-war Brčko municipality and transferred all of the Entity powers to the newly-created Brčko District under the exclusive sovereignty of  and international supervision. The Brčko District was formally inaugurated on 8 March 2000. Nevertheless, Entity legislation continued to apply in the District until modified by the Supervisor of Brčko or the District Assembly. All Entity legislation ceased to have legal effect in the District on 4 August 2006.

16.  On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007).

16.  On 28 November 1997 the Federation of Bosnia and Herzegovina assumed full liability for “old” foreign-currency savings in locally based commercial banks in order to prepare them for privatisation (in accordance with section 3(1) of the Claims Settlement Act 1997 and the Non-Residents' Claims Settlement Decree 1999). While withdrawal remained impossible, residents of that Entity were given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived (where this was indeed the case) and certain State-owned companies (see section 18 of the Claims Settlement Act 1997, as amended on 21 August 2004 and on 7 November 2007).

17.  Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and , where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998).

17.  Similarly, the Republika Srpska assumed full liability for “old” foreign-currency savings in commercial banks based there (see section 20 of the Opening Balance Sheets (Banks) Act 1998, as amended on 8 January 2002). However, unlike in the Federation of Bosnia and , where the liability shifted simultaneously with respect to all commercial banks, in the Republika Srpska the liability shifted for each commercial bank upon its privatisation. The relevant dates for the two main commercial banks with “old” foreign-currency deposits, the Banjalučka banka and the Kristal banka, were 18 January and 17 April 2002 respectively. The privatisation process was completed in the Republika Srpska in respect of commercial banks on 31 December 2002. Residents of that Entity were also given the possibility of using their “old” foreign-currency savings to purchase the State-owned flats in which they lived and certain State-owned companies (see section 19 of the Privatisation of Companies Act 1998).

18.  In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko.

18.  In the course of 2002 all commercial banks in the Brčko District were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko.

19.  Legislation providing for the use of “old” foreign-currency savings in the privatisation process had limited appeal and, moreover, led to abuses: an unofficial market emerged on which such savings were sometimes sold for no more than 3% of their nominal value. In 2004, in an attempt to remedy the situation, the Entities and the District agreed to recompense “old” foreign-currency savers in cash and government bonds and set up repayment schemes to this effect. However, pursuant to decision U 14/05 of the Constitutional Court of Bosnia and Herzegovina of 2 December 2005, the three repayment schemes were replaced by one for the entire territory of Bosnia and Herzegovina (see “Relevant domestic law and practice” below).

B.  The present case

20.  The applicant was born in 1935 and lives in the vicinity of Srebrenik, in .

21.  He worked across Europe as a mailman, construction worker and handyman in the 1970s and 1980s and deposited foreign currency earned abroad with a basic bank based in Tuzla, a member of the Privredna banka . During the Marković reforms the bank became a separate entity, named Tuzlanska banka. In 1994 it was nationalised (see paragraph 14 above) and in 1998 it was sold to a commercial bank based in  (Nova Ljubljanska banka).

22.  After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs.

22.  After several failed attempts to withdraw his funds, the applicant complained to the Human Rights Chamber (a human-rights body set up under Annex 6 to the Dayton Peace Agreement). By a decision of 6 April 2005 (decision CH/98/375 et al.), the Human Rights Commission, the legal successor of the Human Rights Chamber, found the contemporary legislation to be contrary to Article 6 of the Convention (on account of the lack of procedural guarantees) and Article 1 of Protocol No. 1 to the Convention (on account of the lack of a fair balance between the relevant interests). Besides some general measures, it awarded the applicant 500 convertible marks (BAM) in respect of non-pecuniary damage and legal costs.

23.  On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below).

23.  On 29 December 2006 the competent verification agency assessed the amount of the applicant's “old” foreign-currency savings at BAM 269,275.21 (see paragraph 27 below).

24.  On 11 June 2007 the applicant received BAM 1,000 (see paragraph 29 below). On 14 May 2009 he received the first instalments of the principal debt and of interest on the bonds, both due on 27 September 2008, in the total amount of BAM 4,237.44 (see paragraph 31 below).

25.  It would appear that the government bonds due on 31 March 2008 have not yet been issued (see paragraph 30 below) and that the second instalment of interest on the bonds, due on 27 March 2009, has not yet been paid (see paragraph 31 below).

II.  RELEVANT DOMESTIC LAW AND PRACTICE

26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.

26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.

26.  For the relevant law and practice, see the admissibility decision in Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005XII; Suljagić v. Bosnia and Herzegovina (dec.), no. 27912/02, 20 June 2006; and the judgment in Jeličić v. Bosnia and Herzegovina, no. 41183/02, ECHR 2006-XII.

27.  Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”).  undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions.

27.  Furthermore, the Old Foreign-Currency Savings Act 2006 entered into force on 15 April 2006 (“the 2006 Act”).  undertook to recompense original deposits in locally based banks and interest accrued by 31 December 1991 at the original rate, less any funds already used (see paragraphs 14 and 16-17 above). Interest accrued from 1 January 1992 until 15 April 2006 is to be cancelled and calculated afresh at an annual rate of 0.5%. The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies. The deadline for submitting an application to this effect has been extended on several occasions.

28.  The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28).

28.  The Constitutional Court of Bosnia and Herzegovina has examined the constitutionality of the provision concerning the reduction of the interest rate to 0.5% for the period from 1 January 1992 until 15 April 2006 and considered it to be justified given the overall circumstances, notably the need to reconstruct the national economy following a devastating war (see decision U 13/06 of 28 March 2008, § 28).

29.  All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and  and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds.

29.  All claimants that have obtained verification certificates (see the penultimate sentence of paragraph 27 above) are entitled to a cash payment of up to BAM 1,000 in the Federation of Bosnia and  and the Brčko District and up to BAM 2,000 in the Republika Srpska. Any remaining amount will then be reimbursed in government bonds.

30.  In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and  and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and .

30.  In accordance with the 2006 Act, government bonds were to be issued by 31 March 2008. They should be amortised by 31 December 2016 at the latest and earn interest at an annual rate of 2.5%. While it had initially been planned to issue State bonds through the Central Bank, on 12 January 2008 the Republika Srpska passed its own Old Foreign-Currency Savings Act 2008 (“the RS Act”), cutting the amortisation period for government bonds down to five years, and issued its own Entity bonds on 28 February 2008. On 4 October 2008 the Constitutional Court of Bosnia and Herzegovina declared the RS Act constitutional (decision U 3/08 of 4 October 2008). It decided that the constituent units (the Entities and the District) had jurisdiction to regulate the matter of “old” foreign-currency savings, provided that they remained within the framework of the 2006 Act. Following this decision, the Central Bank refused to issue government bonds only for some constituent units. As a result, the Federation of Bosnia and  and the Brčko District had to issue their own bonds. While the Brčko District did so on 30 June 2009, it would appear that bonds have not yet been issued in the Federation of Bosnia and .

31.  Meanwhile, amortisation plans were adopted on 21 February 2008 for the Republika Srpska and on 9 April 2008 for the Federation of Bosnia and  and the Brčko District. On 24 June 2009 a new amortisation plan was adopted for the Brčko District which is along the lines of that of 9 April 2008.

In the Republika Srpska, bonds are to be amortised by 28 February 2013 in ten instalments (on 28 February and 28 August every year from 28 August 2008 to 28 February 2013) together with interest on the bonds (at an annual rate of 2.5%). The first three instalments were paid, as planned, on 28 August 2008, 28 February and 28 August 2009. In the event of late payment, default interest is to be paid at the statutory rate.

In the Federation of Bosnia and Herzegovina, bonds are to be amortised by 27 March 2015 in eight instalments as follows: 7.5% of the entire debt is to be paid on 27 September 2008, 9% on 27 September 2009, 11% on 27 September 2010, 12% on 27 September 2011, 13% on 27 September 2012, 15% on 27 September 2013, 15.5% on 27 September 2014 and 17% on 27 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 27 March and 27 September every year from 27 September 2008 to 27 March 2015. The first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) were paid on 14 May 2009. It would appear that the instalments due on 27 March and 27 September 2009 have not yet been paid.

Lastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate.

Lastly, under the old amortisation plan, the Brčko District paid the first instalments of the principal debt and of interest on the bonds (both due on 27 September 2008) on 24 December 2008 and the second instalment of interest on the bonds (due on 27 March 2009) on 11 June 2009. Pursuant to the new plan, bonds are now to be amortised by 31 March 2015 in seven instalments as follows: 9.5% of the entire debt is to be paid on 30 September 2009, 11.5% on 30 September 2010, 12.5% on 30 September 2011, 14% on 30 September 2012, 16.5% on 30 September 2013, 17.5% on 30 September 2014 and 18.5% on 31 March 2015. Interest on the bonds (at an annual rate of 2.5%) is to be paid on 31 March and 30 September every year from 30 September 2009 to 31 March 2015. The instalment due on 30 September 2009 has been paid in time. In case of the late payment of any forthcoming instalment, default interest is to be paid at the statutory rate.

32.  Since government bonds are redeemable before their maturity, once issued, they may be traded on the Stock Exchange. In the Republika Srpska, their current trade price on the Stock Exchange is around 90% of their nominal value. Given that government bonds have been issued in the Brčko District only recently, their trade price on the Stock Exchange has not yet consolidated. As mentioned above, it would appear that bonds have not yet been issued in the Federation of Bosnia and .

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

33.  The present case is fundamentally about the compliance of the domestic legislation on “old” foreign-currency savings with the conditions laid down by Article 1 of Protocol No. 1, which is worded 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.  Applicability of Article 1 of Protocol No. 1

34.  The concept of “possessions” has an autonomous meaning which is not limited to the ownership of material goods. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “possessions” for the purposes of Article 1 of Protocol No. 1 (see, among many authorities, Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004V). Claims, provided that they have a sufficient basis in domestic law, qualify as an “asset” and can thus be regarded as “possessions” within the meaning of this provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004IX).

35.  The applicant in the present case, upon depositing foreign currency with a commercial bank, acquired an entitlement to collect at any time his deposit, together with accumulated interest, from the commercial bank or, in the event of its “manifest insolvency” or bankruptcy, from the State (see paragraph 12 above). While it is true that towards the end of its existence, the SFRY and its commercial banking sector had difficulties in honouring their financial obligations (see paragraph 10 above), the entitlement subsisted.

36.  Despite varying approaches to this issue following the dissolution of the SFRY and the shifting of responsibilities from one level of government to another (see paragraphs 14, 16-17, 19 and 27-32 above), there has never been any doubt that Bosnia and Herzegovina and/or its constituent units had a legal duty to repay “old” foreign-currency savings in locally based commercial banks. In such circumstances, the Court concludes that the applicant had, and still has, a claim amounting to a “possession” within the meaning of Article 1 of Protocol No. 1. The guarantees of that provision therefore apply to the present case.

B.  Compliance with Article 1 of Protocol No. 1

1.  Applicable rule of Article 1 of Protocol No. 1

37.  As the Court has stated on a number of occasions, Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting Parties are entitled, among other things, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many authorities, Beyeler v. Italy [GC], no. 33202/96, § 98, ECHR 2000I).

38.  For many years, the applicant in the present case has been unable to freely dispose of his “old” foreign-currency savings. At the time of the introduction of his application (2 July 2002) and, more importantly, the date of the ratification of Protocol No. 1 by  (12 July 2002), he could use those funds only to purchase certain State-owned companies (see paragraph 16 above). As he was the owner of the house in which he lived, the possibility of buying a State-owned flat was not open to the applicant. The 2004 legislation then followed (see paragraph 19 above) and finally the current legislation (see paragraphs 27-32 above), each limiting the use of “old” foreign-currency savings. This has not been contested before the Court.

In such circumstances, the present case falls to be examined under the third rule of Article 1 of Protocol No. 1 (see also Trajkovski v. “the ” (dec.), no. 53320/99, ECHR 2002IV).

2.  General principles

39.  The general principles were recently restated in Broniowski, cited above, §§ 147-51 (references omitted).

(a)  Principle of lawfulness

40.  The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention.

The principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application.

(b)  Principle of a legitimate aim in the public/general interest

41.  Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. By the same token, in cases involving a positive duty, there must be a legitimate justification for the State's inaction. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and that the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property. One of the effects of this is that the existence of a “public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest.

41.  Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. By the same token, in cases involving a positive duty, there must be a legitimate justification for the State's inaction. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and that the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property. One of the effects of this is that the existence of a “public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest.

42.  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property, including deprivation or control of property. Accordingly, the national authorities enjoy a wide margin of appreciation in this field.

Furthermore, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating or controlling property or affording publicly funded compensation for expropriated property will commonly involve consideration of political, economic and social issues. The Court has declared that, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, it will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation. This logic applies to such fundamental changes of a country's system as the transition from a totalitarian regime to a democratic form of government, the reform of the State's political, legal and economic structure and indeed the dissolution of the State followed by a brutal war, phenomena which inevitably involve the enactment of large-scale economic and social legislation.

(c)  Principle of a “fair balance”

43.  Both an interference with the peaceful enjoyment of possessions and an abstention from action must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions. In each case involving the alleged violation of that Article the Court must, therefore, ascertain whether by reason of the State's action or inaction the person concerned had to bear a disproportionate and excessive burden.

44.  In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. That assessment may involve not only the relevant compensation terms – if the situation is akin to the taking of property – but also the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State's conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner.

3.  Application of the above principles to the present case

(a)  The applicant's submissions

45.  While recognising improvements in the current legislation, the applicant maintained that it was still incompatible with Article 1 of Protocol No. 1. First of all, according to his understanding of the current legislation, he would receive no payment in cash other than the initial payment of BAM 1,000. He would receive government bonds only at the end of the amortisation period (in 2015), which he would then have to sell on an unofficial market, most likely for a fraction of their nominal value. The applicant considered this to be unacceptable given notably his age and poor health. Secondly, he complained about the interest rate for the period from 1 January 1992 until 15 April 2006 (0.5%). Lastly, the applicant maintained that the current legislation lacked guarantees that the necessary funds would indeed be allocated on time.

(b)  The Government's submissions

(b)  The Government's submissions

46.  The Government acknowledged that the domestic authorities had assumed full liability for “old” foreign-currency savings in locally based commercial banks. According to preliminary data, the associated public debt exceeded 1 billion euros (EUR). In view of various other financial obligations of different levels of government and the overall circumstances, including the dissolution of the SFRY in 1991/92 and the subsequent war, the Government maintained that the current legislation was the best solution feasible. In support of their argument, they underlined that the legislation had been prepared with the assistance of the International Monetary Fund. As regards the interest rate for the period from 1 January 1992 until 15 April 2006, which the applicant particularly criticised, the Government claimed that it corresponded to the average interest rate applicable to overnight foreign-currency deposits for the same period. Lastly, they dismissed the applicant's concerns as regards the ability of the domestic authorities to implement the current legislation. Despite initial delays in the Federation of Bosnia and  and the Brčko District, the Government emphasised that measures had been taken, including loans from commercial banks, to ensure timely payment of the forthcoming instalments.

(c)  The third parties' submissions

(c)  The third parties' submissions

47.  The third parties, in their written submissions to the Court, accused all levels of government of incompetence and corruption. They criticised above all the 1997 legislation of the Federation of Bosnia and  and the equivalent legislation in the Republika Srpska. Allegedly, the conditions had been such that “old” foreign-currency savers had no other option but to accept privatisation certificates in lieu of their savings and sell them on an unofficial market for a fraction of their nominal value. The scheme, it was said, had allowed some notorious tycoons and war profiteers with ties with the Government to obtain valuable assets for hardly anything.

48.  The association from the Federation of Bosnia and  added that abuses also continued under the current legislation, but failed to substantiate this contention.

(d)  The Court's assessment

49.  Before embarking upon these issues, it should be underlined that the present case has a long history. The applicant lodged his complaints on 2 July 2002, before  had even ratified Protocol No. 1, and repeatedly reaffirmed them thereafter. Although the contested situation has evolved, the Court will limit its analysis to the current legislation. The Court further wishes to underline that it considers it irrelevant that the applicant's complaints were lodged before the ratification of Protocol No. 1, because of the continuing nature of the impugned situation and the fact that the initial complaints have been reaffirmed on numerous occasions after ratification (see Čeh v. Serbia, no. 9906/04, §§ 36-39, 1 July 2008).

50.  Turning to the general principles set out above, there is no doubt that the first two were respected in the present case (see, by analogy, Trajkovski, cited above). The Court will therefore proceed to examine the core question, namely whether the contested measures struck a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1.

50.  Turning to the general principles set out above, there is no doubt that the first two were respected in the present case (see, by analogy, Trajkovski, cited above). The Court will therefore proceed to examine the core question, namely whether the contested measures struck a “fair balance” between the relevant interests in the light of Article 1 of Protocol No. 1.

51.  To begin with, it is a well-known fact that the global economic crisis of the 1970s hit the SFRY particularly hard. The SFRY turned to international capital markets and soon became one of the most indebted countries in the world. When the international community backed away from the loose lending practices of the 1970s, the SFRY resorted to foreign-currency savings of its citizens to pay foreign debts and finance imports. The Parliamentary Assembly of the Council of Europe has established that, as a result, a major part of the original deposits ceased to exist before the dissolution of the SFRY (see its Resolution 1410 (2004) adopted on 23 November 2004 – reproduced in Kovačić and Others, cited above, § 188 – as well as the explanatory memorandum by Mr Erik Jurgens). While it is true that “old” foreign-currency claims as such survived the dissolution of the SFRY and that Bosnia and Herzegovina assumed full liability for such claims in locally based banks, the fact that the original deposits had been spent, in all probability, by the former regime explains why Bosnia and Herzegovina has not been able to allow the uncontrolled withdrawal of these deposits.

51.  To begin with, it is a well-known fact that the global economic crisis of the 1970s hit the SFRY particularly hard. The SFRY turned to international capital markets and soon became one of the most indebted countries in the world. When the international community backed away from the loose lending practices of the 1970s, the SFRY resorted to foreign-currency savings of its citizens to pay foreign debts and finance imports. The Parliamentary Assembly of the Council of Europe has established that, as a result, a major part of the original deposits ceased to exist before the dissolution of the SFRY (see its Resolution 1410 (2004) adopted on 23 November 2004 – reproduced in Kovačić and Others, cited above, § 188 – as well as the explanatory memorandum by Mr Erik Jurgens). While it is true that “old” foreign-currency claims as such survived the dissolution of the SFRY and that Bosnia and Herzegovina assumed full liability for such claims in locally based banks, the fact that the original deposits had been spent, in all probability, by the former regime explains why Bosnia and Herzegovina has not been able to allow the uncontrolled withdrawal of these deposits.

52.  The applicant maintained that he was entitled under the current legislation to no more than BAM 1,000 in cash until 27 March 2015. The Court observes, however, that the applicant is entitled to receive his entire “old” foreign-currency savings by 27 March 2015 in eight instalments and has already thus received BAM 5,237.44. Given the catastrophic effects of the 1992-95 war and the ongoing reforms of the State's political, legal and economic structure, the Court accepts that this solution remained within the respondent State's margin of appreciation.

52.  The applicant maintained that he was entitled under the current legislation to no more than BAM 1,000 in cash until 27 March 2015. The Court observes, however, that the applicant is entitled to receive his entire “old” foreign-currency savings by 27 March 2015 in eight instalments and has already thus received BAM 5,237.44. Given the catastrophic effects of the 1992-95 war and the ongoing reforms of the State's political, legal and economic structure, the Court accepts that this solution remained within the respondent State's margin of appreciation.

53.  The applicant also expressed concerns that he would not be able to sell government bonds for anything near their nominal value. While understandable in view of past abuses (see paragraphs 19 and 47 above), such concerns are unsubstantiated. Unlike privatisation certificates under the former legislation, government bonds under the current legislation may be traded on the Stock Exchange, which, together with the interest on the bonds (at an annual rate of 2.5%) and the relatively short amortisation period, should ensure a significantly higher price. Indeed, such bonds are at present sold in the Republika Srpska for around 90% of their nominal value. There is no reason why such bonds should be traded for anything less in the Brčko District or, once issued, in the Federation of Bosnia and . Anyhow, the applicant is not required to sell government bonds in order to obtain his “old” foreign-currency savings. He could instead opt for cash payments in eight instalments. As opposed to privatisation certificates under the former legislation, government bonds under the current legislation are not designed to replace cash payments. On the contrary, their function is to make early cash payments possible for those who are unable or unwilling to wait until the end of the amortisation period (27 March 2015 in the applicant's case).

53.  The applicant also expressed concerns that he would not be able to sell government bonds for anything near their nominal value. While understandable in view of past abuses (see paragraphs 19 and 47 above), such concerns are unsubstantiated. Unlike privatisation certificates under the former legislation, government bonds under the current legislation may be traded on the Stock Exchange, which, together with the interest on the bonds (at an annual rate of 2.5%) and the relatively short amortisation period, should ensure a significantly higher price. Indeed, such bonds are at present sold in the Republika Srpska for around 90% of their nominal value. There is no reason why such bonds should be traded for anything less in the Brčko District or, once issued, in the Federation of Bosnia and . Anyhow, the applicant is not required to sell government bonds in order to obtain his “old” foreign-currency savings. He could instead opt for cash payments in eight instalments. As opposed to privatisation certificates under the former legislation, government bonds under the current legislation are not designed to replace cash payments. On the contrary, their function is to make early cash payments possible for those who are unable or unwilling to wait until the end of the amortisation period (27 March 2015 in the applicant's case).

54.  As regards the interest rate for the period from 1 January 1992 until 15 April 2006, which the applicant and the third parties considered to be too low, the Government submitted that it corresponded to the average interest rate applicable to overnight foreign-currency deposits. However, according to an official report submitted by the Government, at the request of the Court, in another case (Kudić v. Bosnia and Herzegovina, no. 28971/05, 9 December 2008), the relevant interest rate appears to be much higher – 2.33% on average (4.06% in 1992, 2.82% in 1993, 2.43% in 1994, 2.70% in 1995, 2.49% in 1996, 3.16% in 1997, 3.01% in 1998, 2.78% in 1999, 2.4% in 2000, 2.2% in 2001, 1.64% in 2002, 1.22% in 2003, 0.9% in 2004, 0.82% in 2005).

The Court has also taken note of the fact that the neighbouring countries, in which similar repayment schemes were set up, agreed to pay considerably higher interest rates: 5% in Croatia and 2% in Montenegro and .

Nevertheless, given the respondent State's wide margin of appreciation (see paragraph 42 above) and, in particular, the need to reconstruct the national economy following a devastating war, the Court does not consider this factor sufficient in itself to render the current legislation contrary to Article 1 of Protocol No. 1. It agrees in this regard with the Constitutional Court of Bosnia and Herzegovina (see paragraph 28 above).

Nevertheless, given the respondent State's wide margin of appreciation (see paragraph 42 above) and, in particular, the need to reconstruct the national economy following a devastating war, the Court does not consider this factor sufficient in itself to render the current legislation contrary to Article 1 of Protocol No. 1. It agrees in this regard with the Constitutional Court of Bosnia and Herzegovina (see paragraph 28 above).

55.  Whereas the Court finds the current legislation as such compatible with Article 1 of Protocol No. 1, it agrees with the applicant that its state of implementation is unsatisfactory. While in the Republika Srpska no delays were alleged, the same is not true for the Federation of Bosnia and  and the Brčko District. In the Brčko District, government bonds, although due on 31 March 2008, were issued only on 30 June 2009. In the Federation of , it appears that bonds, likewise due on 31 March 2008, have not yet been issued. As a result, the applicant is still unable to sell them on the Stock Exchange and thus obtain early cash payments (see paragraph 53 above). Moreover, the instalments due under the current legislation on 27 September 2008 were paid almost three months later (on 24 December 2008) in the Brčko District and almost eight months later (on 14 May 2009) in the Federation of Bosnia and . Similarly, the instalment due on 27 March 2009 was paid almost three months later (on 11 June 2009) in the Brčko District and has not yet been paid in the Federation of Bosnia and .

56.  The Court is aware that “old” foreign-currency savings, inherited from the SFRY, constitute a considerable burden on all successor States. Nonetheless, having undertaken to repay “old” foreign-currency savings in locally based banks and having set up a repayment scheme in this regard, the respondent State must stand by its promises. The rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require the Contracting Parties to respect and apply, in a foreseeable and consistent manner, the laws they have enacted (see Broniowski, cited above, § 184).

56.  The Court is aware that “old” foreign-currency savings, inherited from the SFRY, constitute a considerable burden on all successor States. Nonetheless, having undertaken to repay “old” foreign-currency savings in locally based banks and having set up a repayment scheme in this regard, the respondent State must stand by its promises. The rule of law underlying the Convention and the principle of lawfulness in Article 1 of Protocol No. 1 require the Contracting Parties to respect and apply, in a foreseeable and consistent manner, the laws they have enacted (see Broniowski, cited above, § 184).

57.  In view of the deficient implementation of the domestic legislation on “old” foreign-currency savings, the Court concludes that the applicant may still claim to be a victim for the purposes of Article 34 of the Convention. Accordingly, the Government's preliminary objection is dismissed. For the same reason, there has been a violation of Article 1 of Protocol No. 1 to the Convention in the present case.

II.  APPLICATION OF ARTICLE 46 OF THE CONVENTION

58.  Article 46 of the Convention reads as follows:

“1.  The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2.  The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”

A.  The parties' submissions

59.  The Government, as opposed to the applicant, objected to the application of the pilot-judgment procedure in the present case and repeated that the contested legislation complied with the conditions laid down by Article 1 of Protocol No. 1.

B.  The Court's assessment

1.  General principles

60.  The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicant which the Court found to be violated. Such measures must also be taken in respect of other persons in the applicant's position, notably by solving the problems that have led to the Court's findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI; Lukenda v. , no. 23032/02, § 94, ECHR 2005X; and S. and Marper v. the  [GC], nos. 30562/04 and 30566/04, § 134, ECHR 2008-...). This obligation has been consistently emphasised by the Committee of Ministers in the supervision of the execution of the Court's judgments (see, for example, ResDH(97)336, IntResDH(99)434, IntResDH(2001)65 and ResDH(2006)1).

61.  In order to facilitate effective implementation of its judgments along these lines, the Court may adopt a pilot-judgment procedure allowing it to clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent state to remedy them (see Broniowski, cited above, §§ 189-94, and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-39, ECHR 2006-VIII). This adjudicative approach is, however, pursued with due respect for the Convention institutions' respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see, by analogy, Broniowski v.  (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005IX, and Hutten-Czapska v. Poland (friendly settlement) [GC], no. 35014/97, § 42, ECHR 2008-...).

62.  Another important aim of the pilot-judgment procedure is to induce the respondent State to resolve large numbers of individual cases arising from the same structural problem at domestic level, thus implementing the principle of subsidiarity which underpins the Convention system. Indeed, the Court's task as defined by Article 19, that is, to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”, is not necessarily best achieved by repeating the same findings in large series of cases (see, by analogy, E.G. v. Poland (dec.), no. 50425/99, § 27, ECHR 2008-...). The object of the pilot-judgment procedure is to facilitate the speediest and most effective resolution of a dysfunction affecting the protection of the Convention rights in question in the national legal order (see Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007XIV). While the respondent State's action should primarily aim at the resolution of such a dysfunction and at the introduction, where appropriate, of effective domestic remedies in respect of the violations in question, it may also include ad hoc solutions such as friendly settlements with the applicants or unilateral remedial offers in line with the Convention requirements. The Court may decide to adjourn the examination of all similar cases, thus giving the respondent State an opportunity to settle them in such various ways (see, by analogy, Broniowski, cited above, § 198, and Xenides-Arestis v. , no. 46347/99, § 50, 22 December 2005). If, however, the respondent State fails to adopt such measures following a pilot judgment and continues to violate the Convention, the Court will have no choice but to resume the examination of all similar applications pending before it and to take them to judgment so as to ensure effective observance of Convention (see, by analogy, E.G. v. Poland, cited above, § 28).

2.  Application of the principles to the present case

63.  The violation which the Court has found in the present case affects many people. According to the International Monetary Fund, more than a quarter of the population of  had “old” foreign-currency savings (see Bosnia and Herzegovina: Selected Economic Issues, IMF Country Report No. 04/54, March 2004, p. 26). Moreover, there are already more than 1,350 similar applications, submitted on behalf of more than 13,500 applicants, pending before the Court. This represents a serious threat to the future effectiveness of the Convention machinery. The Court therefore considers it appropriate to apply the pilot-judgment procedure in the present case, notwithstanding the Government's objection in this regard.

63.  The violation which the Court has found in the present case affects many people. According to the International Monetary Fund, more than a quarter of the population of  had “old” foreign-currency savings (see Bosnia and Herzegovina: Selected Economic Issues, IMF Country Report No. 04/54, March 2004, p. 26). Moreover, there are already more than 1,350 similar applications, submitted on behalf of more than 13,500 applicants, pending before the Court. This represents a serious threat to the future effectiveness of the Convention machinery. The Court therefore considers it appropriate to apply the pilot-judgment procedure in the present case, notwithstanding the Government's objection in this regard.

64.  Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment. Notably, the Court considers that government bonds must be issued and any outstanding instalments must be paid in the Federation of Bosnia and  within six months from the date on which the present judgment becomes final. Within the same time-limit, the Federation of Bosnia and Herzegovina must also undertake, as the Republika Srpska and the Brčko District did (see paragraph 31 above), to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment. As regards the past delays, the Court does not find it necessary, at present, to order that adequate redress be awarded to all persons affected. If, however, the respondent State fails to adopt the general measures indicated above and continues to violate the Convention, the Court may reconsider the issue of redress in an appropriate future case.

64.  Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State's obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment. Notably, the Court considers that government bonds must be issued and any outstanding instalments must be paid in the Federation of Bosnia and  within six months from the date on which the present judgment becomes final. Within the same time-limit, the Federation of Bosnia and Herzegovina must also undertake, as the Republika Srpska and the Brčko District did (see paragraph 31 above), to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment. As regards the past delays, the Court does not find it necessary, at present, to order that adequate redress be awarded to all persons affected. If, however, the respondent State fails to adopt the general measures indicated above and continues to violate the Convention, the Court may reconsider the issue of redress in an appropriate future case.

65.  Turning to the many similar applications pending before the Court:

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

66.  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

67.  Under the head of pecuniary damage, the applicant repeated his complaints concerning the content of the current legislation: he requested immediate payment of the total amount of his “old” foreign-currency savings and a higher interest rate. The Government disagreed. The Court observes that it has rejected these complaints (see paragraphs 51-54 above). It therefore also dismisses the applicant's claim for pecuniary damage.

68.  The applicant further claimed BAM 20,000 in respect of non-pecuniary damage. The Government maintained that the claim was unjustified. The Court, however, considers it clear that the applicant sustained some non-pecuniary loss arising from the breach of the Convention found in this case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,000 under this head plus any tax that may be chargeable.

B.  Costs and expenses

69.  The applicant has already received under the Court's legal-aid scheme EUR 850 for the written part of the proceedings, EUR 1,350 plus travelling costs in connection with appearance at the hearing and EUR 300 for translation costs. On 20 March 2009 he sought reimbursement of additional translation costs in the amount of EUR 729. The Government described this claim as belated.

70.  While it is true that the applicant should have submitted his claim by 1 February 2009 (as requested in a letter of 15 December 2008 from the Court) or, at the latest, at the hearing on 10 March 2009, the Court considers that the applicant's additional translation costs should be met in full.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that the applicant may still claim to be a victim for the purposes of Article 34 of the Convention and dismisses the Government's preliminary objection;

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3.  Holds that the above violation represents a systemic problem;

4.  Holds that the respondent State must ensure, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention:

(a)  that government bonds are issued in the Federation of Bosnia and ;

(b)  that any outstanding instalments are paid in the Federation of Bosnia and ;

(c)  that the Federation of Bosnia and Herzegovina undertakes to pay default interest at the statutory rate in the event of late payment of any forthcoming instalment;

5.  Decides to adjourn, for six months from the date on which the present judgment becomes final, the proceedings in all cases concerning “old” foreign-currency savings in the Federation of Bosnia and Herzegovina and the Brčko District in which the applicants have obtained verification certificates, without prejudice to the Court's power at any moment to declare inadmissible any such case or to strike it out of its list in accordance with the Convention;

6.  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, EUR 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 729 (seven hundred and twenty nine euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into convertible marks at the rate applicable at the date of settlement;

(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;

7.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 3 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Mijović is annexed to this judgment.


PROCEDURE

1.  The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 March 2019.

2.  The applicant was represented by Mr S.M. Rybiy, a lawyer practising in Dnipro.

3.  The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the inadequate conditions of his detention and of the lack of any effective remedy in domestic law.

THE LAW

ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

6.  The applicant complained of the inadequate conditions of his detention and that he had no effective remedy in this connection. He relied on Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”

7.  The Court notes that the applicant was kept in detention in poor conditions. The details of the applicant’s detention are indicated in the appended table. The Court refers to the principles established in its caselaw regarding inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC], no. 7334/13, §§ 96101, ECHR 2016). It reiterates in particular that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić, cited above, §§ 122 141, and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 149159, 10 January 2012).

8.  In the leading case of Melnik v. Ukraine (no. 72286/01, 28 March 2006; for more recent case-law see Beketov v. Ukraine, no. 44436/09, 19 February 2019), the Court already found a violation in respect of issues similar to those in the present case.

9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s conditions of detention were inadequate.

10.  The Court further notes that the applicant did not have at his disposal an effective remedy in respect of these complaints.

11.  These complaints are therefore admissible and disclose a breach of Articles 3 and 13 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  Regard being had to the documents in its possession and to its caselaw (see, in particular, Melnik v. Ukraine, cited above), the Court considers it reasonable to award the sum indicated in the appended table.

14.  The Court considers it appropriate that the default interest rate 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,

Declares the application admissible;

Holds that it discloses a breach of Articles 3 and 13 of the Convention concerning the inadequate conditions of detention;

Holds

that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 5 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 58055/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Abdurrahman Aslan and Mr Reşat Şancı (“the applicants”), on 9 May 2000.

2.  The applicants were represented by Ms T. Aslan, a lawyer practising in . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3.  On 4 October 2005 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the applicants’ right to a fair hearing by an independent and impartial tribunal to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1979 and 1973 respectively and were serving prison sentences at Nazilli Prison at the time of their applications to the Court.

5.  On 23 February 1999 the applicants were arrested and taken into custody by police officers from the Anti-terror branch of the Kuşadası Security Directorate. They were interrogated on 24 and 25 February 1999 respectively.

6.  On 26 February 1999 the applicants were brought before the public prosecutor in . They were informed of their rights and in particular their right to be assisted by a lawyer, which they waived. The applicants confessed to having committed the offence of which they were accused, namely throwing Molotov cocktails at buildings. They claimed they had acted alone, that they were not involved in any illegal organisation and that they regretted their actions.

7.  On the same day, the applicants were brought before the Kuşadası Magistrates’ Court where they reiterated their statements given to the public prosecutor. Mr Sancı acknowledged in part the statements he had given to the police. He alleged in this connection that he had been subjected to illtreatment in police custody. Mr Aslan acknowledged the contents of his statements made to the police. However, he claimed that he had signed without reading them. The court remanded both applicants in custody.

8.  On 15 March 1999 the public prosecutor at the  filed a bill of indictment with that court accusing the applicants of having thrown Molotov cocktails at the buildings of the Ülkü Ocakları Association, Ziraat Bank, Halk Bank and Yaşar Bank in Kuşadası on 22 February 1999. He requested that they be convicted and sentenced under Articles 169 and 264 of the Criminal Code and Article 5 of Law no. 3713.

9.  The first hearing, held before the  on 10 March 1999 in the applicants’ absence, was taken up with procedural matters such as the measures to be taken for securing the presence of the accused.

10.  Between 15 April 1999 and 15 July 1999 the court held three hearings during which it heard the applicants, who claimed that they had made their statements in police custody under duress. The court also took various procedural acts.

11.  At a hearing held on 15 July 1999 the court noted that the testimony of the witness Mr I.E., taken by proxy, had been submitted to it. The applicants asked the court not to take the testimony into account. They further requested that a further on-site inspection be conducted in order to find out whether the offence had been committed at night time. Finally, they asked the court to hear the bank clerks as witnesses. On the same day, the court, finding that the evidence contained in the case file sufficiently elucidated the events, dismissed the applicants’ requests. The prosecutor read out his observations on the merits of the case against the applicants. The next hearing was held on 2 September 1999.

12.  At the hearing held on 14 October 1999 the military judge sitting on the bench of the  was replaced by a civilian judge. The court heard the applicants’ final submissions on the merits of the case. On the same day, the  convicted the applicants as charged and sentenced them in respect of the offences to terms of imprisonment of three years, fifty-five months and twenty days. In its decision, the court took into account the fact that the incident reports drawn up after the events corresponded to the applicants’ submissions to the Magistrates’ Court. The court further stated that it had not been convinced by the applicants’ denials, having regard to the evidence contained in the case file (i.e.  Mr.I.E’s testimony, photographs of the events, expert reports, incident reports and the reports drawn up following a reconstruction of events) and the applicants’ submissions to the public prosecutor and the Magistrates’ Court.

13.  On 24 February 2000 the Court of Cassation upheld the judgment of the .

II.  RELEVANT DOMESTIC LAW AND PRACTICE

14.  The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002), Öcalan v. Turkey ([GC], no. 46221/99, §§ 5254, ECHR 2005-...) and Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002V).

15.  By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, State Security Courts were abolished.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

16.  The applicants complained that they had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge sitting on the bench of the Izmir State Security Court which tried them. They submitted that they had been convicted on the basis of their statements in police custody which had been taken under duress and that they had been denied the assistance of a lawyer at the initial stages of the proceedings. They complained that the domestic court had refused their request for a further investigation. Finally, they maintained that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. They relied on Article 6 §§ 1 and 3 (b) of the Convention, which in so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(b) to have adequate time and facilities for the preparation of his defence;...”

A.  Admissibility

17.  The Government maintained under Article 35 § 1 of the Convention that the applicants had failed to comply with the six-month rule as regards their complaint concerning lack of access to a lawyer at the initial stages of the proceedings. In this regard, they submitted that the applicants should have lodged their application with the Court within six months from the end of the preliminary investigation.

18.  The applicants denied the Government’s argument.

19.  The Court reiterates that it has already examined and rejected a similar preliminary objection made by the Government (see, in particular, Yavuzaslan v. Turkey, no. 53586/99, § 16, 22 April 2004). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned case.

20.  Consequently, the Court rejects the Government’s preliminary objection.

21.  Moreover, it considers that the applicants’ complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court therefore concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

B.  Merits

1.   and impartiality of the

22.  The Government maintained, in particular, that the applicants had been convicted by a  which was composed of three civilian judges since the military judge had been replaced before the end of the proceedings.

23.  The applicants maintained their allegations.

24.  The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998IV, § 68; and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998VII, § 39). The Court also found in Öcalan v. Turkey (cited above, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that continued to remain in effect in the criminal proceedings concerned, the military judge’s replacement by a civilian judge in the course of those proceedings before the verdict was delivered, failed to dissipate the applicant’s reasonably held concern about that trial court’s independence and impartiality, unless it was established that the procedure subsequently followed in the state security court sufficiently allayed that concern.

25.  In the instant case, the Court observes that the military judge sitting on the bench of the  was replaced only at the last hearing on the merits of the case (see paragraph 13 above). Prior to this period the domestic court had already heard the applicants on several occasions as well as the prosecutor’s observations on the merits and, in particular, it had rejected on 15 July 1999 the applicants’ request for a further investigation to be carried out. The final hearing held on 10 October 1999 consisted only of the court listening to the final submissions of the applicants and the prosecutor before reading out its verdict.

26.  In these circumstances, the Court considers that the replacement of the military judge before the end of the proceedings failed to dispose of the applicants’ reasonably held concern about the trial court’s independence and impartiality (see, a contrario, Ceylan v. Turkey (dec.), no. 68953/01, ECHR 2005-...; and Sevgi Yılmaz v. Turkey (dec.), no. 62230/00, 20 September 2005).

27.  There has accordingly been a violation of Article 6 § 1 of the Convention.

2.  Fairness of the proceedings

28.  Having regard to its finding of a violation of the applicant’s right to a fair hearing by an independent and impartial tribunal, the Court considers that it is not necessary to examine the other complaints under Article 6 of the Convention relating to the fairness of the proceedings (see, among other authorities, Ükünç and Güneş v. Turkey, no. 42775/98, § 26, 18 December 2003).

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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.”

30.  The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with any relevant supporting documents within the time-limit fixed for the submission of the applicants’ observations on the merits and that failure to comply with these requirements may result in the Chamber’s rejection of the claim in whole or in part.

31.  In the instant case, on 22 March 2006 the applicants were requested to submit their claims for just satisfaction. They did not submit any claims within the specified timelimit and did not request an extension of the timelimit. Their Article 41 claims were eventually filed on 18 July 2006. The Court also observes that its practice is not to award moral damages in cases where it has found a violation of Article 6 § 1 of the Convention on account of the lack of independence and impartiality of the State Security Courts.

32.  In view of the above, the Court makes no award under Article 41 of the Convention.

33.  Nevertheless, the Court considers that where an individual, as in the instant case, has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Öcalan, cited above, § 210, in fine).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the remainder of the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention as regards the complaint relating to the independence and impartiality of the ;

3.  Holds that it is not necessary to consider the applicants’ other complaints under Article 6 of the Convention.

Done in English, and notified in writing on 5 December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.