War damage

In the Republika Srpska, fiscus was burdened with claims filed by military persons, by close relatives of killed military personal, by owners whose real property or movable property had been seized for war purposes, or whose property had been destroyed or damaged during military operations, as well as by holders of so-called old foreign currency savings. One case concerned a failure on the part of the competent courts to enforce an enforceable judgment in respect of the compensation for damage, which was, obviously, happening on the basis of tacit instructions by the executive authorities. Such instructions were subsequently “reinforced” by enacting a law which was supposed to relieve the Republica Srpska fiscus of burden, so as to postpone indefinitely the enforcement of all enforceable judgments in respect of the compensation for damage. Before the entry into force of the Law on Postponement of Enforcement of Court Decisions on Payment of Compensation for Pecuniary and Non-Pecuniary Damages resulting from War Activities and on Payment of Old Foreign Currency Savings Deposits, Payable from the Republika Srpska Budget,²³⁹⁸ the Human Rights Chamber considered that the right of access to court and the right to property of all persons who were awarded the so-called war damage by a legally binding judgment were violated. Namely, courts failed to enforce the respective judgments by violating the constitutional principle of division of power. After the entry into force of the mentioned law, the Chamber, nevertheless, recognised as to the Republika Srpska the legitimate right to postpone the enforcement of “war damage” for the sake of the protection of its own economic sustainability. However, the Chamber raised an objection that the established blanket laws, which led to indefinite postponement of the enforcement of “war damage”, violate the principle of a fair balance between the individual property rights of damaged persons, on the one hand, and the public interest of an Entity, on the other hand, as well as the right of access to court and the principle of the rule of law. The Human Rights Chamber obliged the Republika Srpska to discontinue the uncertainty for creditors by committing itself to amending legal solutions related to creditors and the Republika Srpska fiscus.²³⁹⁹ Indeed, in the subsequent period, the Republika Srpska undertook legislative activities in a manner which was obviously contrary to the binding decision of the Chamber, so that, in the end, the disputed law again damaged a great number of persons. In Decision No. CH/01/8110, the Human Rights Chamber confirmed its previous case law and again ordered the Republika Srpska to commit itself to new amendments to the legal solutions, in order to redress violations of the right to property and the right to a fair trial referred to in the ECHR.²⁴⁰⁰ Unlike Decision No. CH/01/8110, in Case No. CH/01/8112 the Human Rights Chamber issued an additional order to the Republika Srpska to enforce legally binding judgments issued to the applicants, reasoning that postponement of enforcement was no longer justified since the RS failed to enforce the decision of the Human Rights Chamber in a proper manner in Case No. CH/01/8110.²⁴⁰¹ Decision No. CH/01/8112 was consequently rendered ineffective following the proceedings on the request for review of the mentioned decision.²⁴⁰²

In 2003, all unsettled claims for compensation for damage of war veterans, of close relatives of killed military personnel, of owners whose real and movable property had been seized for war purposes, or whose property was destroyed and damaged during military operations, as well as of the holders of so-called old foreign currency savings, were declared by the Republika Srpska to be part of the so-called public debt. The payment of public debt was postponed on the basis of the Law on the Temporary Postponement of the Enforcement of Claims payable from the Budget of the Republika Srpska²⁴⁰³ pending the adoption of a law to regulate the manner of settlement of claims payable from the budget of the Republika Srpska in respect of the internal debt, at the latest by 31 December 2004. This was the first time that war damage was defined as the internal debt of the Republika Srpska. In 2004, pursuant to the Law on Determination and the Manner of Settlement of the Internal Debt of the Republika Srpska,²⁴⁰⁴ the term of public debt, which, inter alia, included the so-called war damage, was expanded in a procedural sense to the verification procedure. Under Article 21 of the Law on Determination and the Manner of Settlement of the Internal Debt of the Republika Srpska, the public debt was to be paid over a period of 40 years, in the form of state vouchers. The legal solution was such that the interest was not stipulated either for the past or future period. On the other hand, the interest determined by the courts in legally binding judgments in relation to “war damage” would be written off. In 2005, the Republika Srpska imposed a special Law on Exercising Rights to Compensation for Pecuniary and Non-Pecuniary Damage sustained during the war activities from 20 May 1992 to 19 June 1996,²⁴⁰⁵ which, as lex specialis, replaced the Law on Determination and the Manner of Settlement of the Internal Debt of the Republika Srpska.In November 2005, the Human Rights Commission within the BiH Constitutional Court declared that the provisions on compensation for “war damage” were in contravention of the ECHR, that is regarding Article 6 of the ECHR and Article 1 of Additional Protocol No. 1 to the ECHR, for being contrary to the principle of proportionality.²⁴⁰⁶ The Human Rights Commission ordered the Republika Srpska to adjust the relevant provisions in accordance with the reasoning of the decision of the Commission, and – unlike in the Case No. CH/01/8112 – not to enforce finally binding judgments of the courts if this order is fully implemented.²⁴⁰⁷ This decision was subsequently (indirectly) upheld by the case law of the BiH Constitutional Court.²⁴⁰⁸ Given the bombastic financial and economic echo of this and similar cases, the full implementation of this decision of the Commission, indeed, came as a (positive) surprise.²⁴⁰⁹

Similar problems existed also in the Federation of BiH. The initial decision, however, did not relate to the merits of the case itself on the so-called war damage, but to the problem of the un/reasonable length of the proceedings. The Bjelonja case concerned an attempt to enforce a claim of compensation for damages filed by the applicant, which was related to the seizure of her house for military purposes during the armed conflict. It took courts over five years to decide on the civil action of the applicant for the damages. Besides, the Federation of BiH delayed the repossession of the house, although such an act was no longer justified by the public interest. The Human Rights Chamber established that the right to a decision to be made within a reasonable time was violated, as well as the right to property of the applicant.²⁴¹⁰ Although the Federation of BiH had started already in 1998 to regulate the suspension of payment of claims for war damage compensation established by legally binding judgments,²⁴¹¹ only in 2005 did the highest court in BiH adopt the first decision related to such legal conduct. Since legal regulations of the Federation of BiH are rather similar to the legal regulations of the RS, court decisions, in principle, did not differ.²⁴¹² However, the Federation of BiH failed to enforce a decision within the time limit prescribed by the Human Rights Commission within the BiH Constitutional Court, so that the Federation of BiH had to enforce the legally binding judgments issued to the applicants. Even the Federation of BiH failed to enforce this obligation, so the Human Rights Commission within the BiH Constitutional Court established, in its ruling on the failure to enforce a decision, that failures were made on the part of the Federation of BiH.²⁴¹³