CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 novembre 2005

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Casadevall ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle , Section Registrar . Having regard to the above application lodged on 19 August 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the European Commission for Democracy through Law (the Venice Commission) and the International Committee for Human Rights pursuant to Article 36 § 2 of the European Convention on Human Rights and Rule 44 § 2 of the Rules of Court, Having regard to the parties’ oral submissions at the hearing on 28 June 2005, Having deliberated, decides as follows: THE FACTS The applicant, Ms Ruža Jeličić, is a citizen of Bosnia and Herzegovina who was born in 1953 and lives in Banja Luka, Bosnia and Herzegovina. She was represented successively by two lawyers, both practising in Banja Luka: Mr D. Đurić and, following his death, Mr P. Radulović. At the oral hearing on 28 June 2005 the applicant was assisted by her adviser, Mr   S.   Nišić. The respondent Government were represented by Ms   Zikreta   Ibrahimović, Agent, and Ms Monika Mijić, Deputy Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Relevant background to the present case From 1965 individuals were allowed to open foreign-currency savings accounts in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). 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 SFRY commercial banks: such deposits earned high interest and were guaranteed by the State (section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989). From the entry into force of the Foreign-Currency Transactions Act 1977 until 15 October 1988, commercial banks could re-deposit foreign currencies with the National Bank of the SFRY in Belgrade and could obtain interest-free, national-currency loans in return. However, such re-depositing was apparently only a paper transaction so that a large part of foreign currency remained, in reality, with the commercial banks. The commercial banks then used foreign currency for payments abroad (for financing imports and foreign services for their clients). On the other hand, foreign currency which was actually deposited with the National Bank of the SFRY was used for paying foreign debts of the SFRY. Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s, with hyperinflation in the SFRY economy. Once the banking and monetary systems were on the verge of collapse, the SFRY took emergency measures including legislative restrictions on the repayment of foreign-currency deposits to individuals. While a major part of the original deposits may have ceased to exist before or during the process of dissolution of the SFRY and the disintegration of its banking and monetary systems, the SFRY’s statutory guarantee for those deposits was never revoked by it. Indeed, it was taken over by the successor States on different dates after their respective declarations of independence. The Republic of Bosnia and Herzegovina (the legal predecessor of present-day Bosnia and Herzegovina) declared its independence in March 1992. It took over the statutory guarantee of foreign-currency deposits from the SFRY on 11 April 1992 (section 6 of the SFRY Legislation Application Act 1992); the conditions and methods of honouring the obligations based on this guarantee were to be regulated by a separate law. Meanwhile, a withdrawal of foreign-currency deposits was virtually impossible. In 1998 Bosnia and Herzegovina authorised the Federation of Bosnia and Herzegovina and the Republika Srpska (its constituent entities) to dispose of proceeds from the privatisation of State-owned companies and banks located in their respective territories, making them, at the same time, accountable for the accrued debts of those companies and banks (section 4 of the Privatisation of Companies and Banks Framework Act 1998). On 8 April 1998 and 8 January 2002 the Federation of Bosnia and Herzegovina and the Republika Srpska passed legislation providing for the transfer of the banks’ liabilities for “old” foreign-currency savings (foreign currencies deposited before the dissolution of the SFRY) to their respective governments on the completion of the privatisation of their banking sectors (section 35(1) of the Opening Balance Sheets Act 1998 of the Federation of Bosnia and Herzegovina and section 20 of the Opening Balance Sheets Act 1998 of the Republika Srpska, as amended on 8 January 2002). On 2 June 2004 the Agreement on Succession Issues entered into force. Article 7 of Annex C to that Agreement stipulated that “[g]uarantees by the SFRY or its [National Bank] of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals. This negotiation shall take place under the auspices of the Bank for International Settlements.” In 2004 the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District of Bosnia and Herzegovina (the third constituent unit of Bosnia and Herzegovina, which was established on 8 March 2000) undertook to settle the claims arising from “old” foreign-currency savings by payment in cash and in State bonds (the Settlement of Domestic Debt Acts of 2004 of the Federation of Bosnia and Herzegovina, of the Republika Srpska and of the Brčko District of Bosnia and Herzegovina). It would appear that payment has not yet started. Meanwhile, many “old” foreign-currency savings holders (not all) are entitled to use such savings to purchase State-owned apartments, business premises and companies. It would appear that a small number have done so. It would also appear that Bosnia and Herzegovina undertook to place money obtained in the privatisation and succession processes into escrow accounts and to withdraw from those accounts only for the clearance of domestic debt (including debt arising from “old” foreign-currency savings) following prior consultation with the International Monetary Fund. A small number of individuals, including the applicant in the present case, have obtained court judgments ordering the release of their “old” foreign-currency savings. However, those judgments have not been enforced for different reasons (while some periods are covered by a statutory moratorium, the others are not). 2.     The present case On 31 January 1983 the applicant deposited a certain amount of German marks (DEM) in two foreign-currency savings accounts at the former Privredna banka Sarajevo Filijala Banja Luka (the present-day Nova banjalučka banka; hereinafter referred to as “the applicant’s bank”, “her bank” or simply “the bank”), located in what is now the Republika Srpska. One account was an automatically renewable three-year term savings account earning 12.5% interest a year and the other was an ordinary savings account. The applicant attempted to withdraw her savings on several occasions to no avail. The bank explained to her that her money had been re-deposited, prior to the dissolution of the SFRY, with the National Bank of the SFRY in Belgrade. On 3 October 1997 she brought a civil action to recover her savings including accrued interest. On 26 November 1998 the Banja Luka Court of First Instance issued a judgment ordering the applicant’s bank to pay to her the full sum in her accounts (DEM 300,169), which amount included accrued interest, plus default interest and legal costs. On 5 February 1999 the Banja Luka Court of First Instance mistakenly held that the bank had not appealed against the judgment of 26 November 1998 and thus issued an order enforcing that judgment. On 25 February 1999 the Banja Luka Court of First Instance established that the bank had in fact submitted an appeal against the judgment in issue. On 4 November 1999 the Banja Luka District Court rejected that appeal. Meanwhile, the applicant filed an application with the Human Rights Ombudsperson, who referred the application to the Human Rights Chamber. The two institutions were set up by the Agreement on Human Rights (Annex 6 to the 1995 Dayton Agreement) in order to assist Bosnia and Herzegovina and its entities in honouring their obligations under that Agreement, namely to secure to all persons within their jurisdiction the highest level of internationally recognised human rights (including those provided in the European Convention on Human Rights – “the Convention”). On 12 January 2000 the Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention arising from a failure to enforce the judgment of 26 November 1998. The Human Rights Chamber held the Republika Srpska responsible and ordered it to ensure full enforcement without further delay. On 22 March 2000 the Banja Luka Court of First Instance issued a fresh enforcement order. On 28 July 2000 the Republika Srpska Supreme Court rejected a further appeal by the applicant’s bank. On 8 November 2000 the Republika Srpska Payment Bureau refused to enforce the judgment relying on the Foreign-Currency Transactions Act 1996, the Opening Balance Sheets Act 1998 and the Instruction of the Republika Srpska Government of 4 October 1999. On 31 December 2001 the balance in the applicant’s bank account was 149,319.55 euros (EUR). On 18 January 2002 the privatisation of the applicant’s bank was completed and the applicant’s foreign-currency deposit became a public debt of the Republika Srpska pursuant to section 20 of the Opening Balance Sheets Act 1998, as amended on 8 January 2002. On 7 March 2002 the applicant apparently converted a part of her savings (EUR 10,225.84) into privatisation coupons and sold those coupons on the secondary market pursuant to the Privatisation of Companies Act 1998. She claimed to have received EUR 4,400. She also claimed to have converted, on an unspecified date, DEM 60,000 (approximately EUR   30,000) into coupons, which she sold on the secondary market for approximately EUR 12,000. B.     Relevant international and domestic law and practice 1.     Legislation of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) (a)     Foreign-Currency Transactions Act 1977 ( Zakon o deviznom poslovanju i kreditnim odnosima ; published in the Official Gazette of the SFRY (“OG SFRY”) no. 15/77; amendments published in OG SFRY nos. 61/82, 77/82, 34/83, 70/83 and 71/84) This Act was in force until 1 January 1986. Section 51(2) provided as follows:   “The National Bank of the SFRY shall be bound, at the request of an authorised bank, to accept citizens’ foreign-currency deposits held in accounts at such authorised bank, and at the same time to grant the authorised bank an interest-free credit in the amount of the dinar counter-value of the foreign currency deposited.” (b)     Civil Obligations Act 1978 ( Zakon o obligacionim odnosima ; published in OG SFRY no. 29/78; amendments published in OG SFRY nos. 39/85, 45/89 and 57/89) This SFRY Act is still in force in Bosnia and Herzegovina. The following are the relevant provisions: Section 1035 “1.   A contract for a monetary deposit shall be formed when the bank agrees to accept and the depositor agrees to deposit a certain sum of money in the bank. 2.   Under such a contract, the bank shall have the right to use the deposited money and the obligation to return it in accordance with the terms set out in the agreement.” Section 1038(2) “Unless otherwise agreed ... the depositor shall have the right to withdraw all or part of the balance of the deposit at any time.” Section 1043(1) “If the money is deposited in a savings account, the bank or financial institution shall issue the depositor with a savings book.” Section 1045 “Interest shall be paid on savings deposits.” (c)     Foreign-Currency Transactions Act 1985 ( Zakon o deviznom poslovanju ; published in OG SFRY no. 66/85; amendments published in OG SFRY nos. 13/86, 71/86, 2/87, 3/88, 59/88 and 82/90) This SFRY Act was in force in the Republic of Bosnia and Herzegovina (the legal predecessor of present-day Bosnia and Herzegovina) until 11   April 1992. The following were the relevant provisions: Section 14, as read until 21 December 1990   “1. Domestic nationals and legal persons may keep foreign currency in a foreign-currency ordinary or savings account at an authorised bank and use it for making payments abroad, in accordance with the provisions of this Act. 2. Foreign nationals may keep foreign currency in a foreign-currency ordinary or savings account at an authorised bank. 3. Foreign currency in foreign-currency ordinary or savings accounts shall be guaranteed by the SFRY.” Section 14, as amended on 21 December 1990 “1. Domestic nationals may keep foreign currency in a foreign-currency ordinary or savings account at an authorised bank and use them for making payments abroad, in accordance with the provisions of this Act. 2. Foreign nationals may keep foreign currency in a foreign-currency ordinary or savings account at an authorised bank. 3. Foreign currency in foreign-currency ordinary or savings accounts shall be guaranteed by the SFRY. 4. The conditions and procedure applicable to the obligations arising under the guarantee shall be regulated by a separate SFRY law.” Section 71, as amended on 21 December 1990 “1. Domestic nationals may ... deposit convertible currencies in a foreign-currency ordinary or savings account at an authorised bank. 2.   Foreign currency kept in foreign-currency ordinary or savings accounts may be used by domestic nationals to pay for imported goods or services for their own and close relatives’ needs, in accordance with the legislation concerning foreign trade. ... 4.   Foreign currency referred to in paragraph 2 of this section may be used by domestic nationals for the purchase of foreign-currency bonds, to make testamentary gifts for scientific or humanitarian purposes in the SFRY or to pay for life insurance with an insurance company in the SFRY. 5. The National Bank of the SFRY shall regulate the operation of the foreign-currency ordinary or savings accounts of domestic and foreign nationals.” Section 103, as read until 15 October 1988   “1.   The National Bank of the SFRY shall, on request by an authorised bank, accept in its deposit foreign currency that has been deposited by domestic and foreign nationals in foreign-currency ordinary or savings accounts after the entry into force of this Act. 2.   The procedure for depositing foreign currency with or withdrawing foreign currency from the National Bank of the SFRY and the conditions under which such deposits or withdrawals may be made shall be regulated by the Federal Executive Council in accordance with the recommendations of the National Bank of the SFRY.” Section 103, as amended on 15 October 1988 and on 21 December 1990   “Banks approved to engage in foreign-trade transactions may retain foreign currency ... in overseas accounts or sell it to the National Bank of the SFRY or on the single monetary market with a right of redemption at the exchange rate applicable at the date of purchase.” (d)     1985 Decision on the procedure to be followed when depositing foreign currency with or withdrawing foreign currency from the National Bank of the SFRY and the conditions under which such deposits or withdrawals may be made ( Odluka o načinu i uslovima deponovanja i vraćanja deviza građana iz depozita Narodne banke Jugoslavije ; published in OG SFRY no. 73/85) Section 5 provided as follows: “1.   By reference to the deposited foreign currency ... the National Bank shall authorise credits to the banks in dinars in an amount equal to the deposited foreign currency, which shall be established on the basis of the average daily exchange rate applicable at the end of the month in which the foreign currency is deposited. 2.   When withdrawing foreign currency on deposit, the bank shall repay the National Bank the used dinar credits in an amount equal to the amount of foreign currency withdrawn from deposit, which amount shall be established on the basis of the exchange rate applicable when the foreign currency was deposited.”   (e)     National Bank Act 1989 ( Zakon o Narodnoj banci Jugoslavije i jedinstvenom monetarnom poslovanju narodnih banaka republika i narodnih banaka autonomnih pokrajina; published in OG SFRY no. 34/89; amendments published in OG SFRY nos. 88/89 and 61/90) Section 4 read as follows: “The SFRY shall guarantee the obligations of the National Bank of the SFRY.” (f)     Banks and Other Financial Institutions Act 1989 ( Zakon o bankama i drugim finansijskim organizacijama ; published in OG SFRY no. 10/89; amendments published in OG SFRY nos. 40/89, 87/89, 18/90, 72/90 and 79/90) Section 76(1) provided as follows: “... [T]he SFRY shall guarantee foreign-currency ordinary or savings accounts of domestic and foreign nationals.” 2.     Legislation of the Republic of Bosnia and Herzegovina (the legal predecessor of present-day Bosnia and Herzegovina) (a)     SFRY Legislation Application Act 1992 ( Uredba sa zakonskom snagom o preuzimanju i primjenjivanju saveznih zakona koji se u Bosni i Hercegovini primjenjuju kao republički zakoni ; published in the Official Gazette of the Republic of Bosnia and Herzegovina (“OG RBH”) no. 2/92) This Act entered in force on 11 April 1992. Pursuant to sections 1 and 6, the Republic of Bosnia and Herzegovina took over, inter alia, the Banks and Other Financial Institutions Act 1989 mentioned above and the financial rights and obligations of the former SFRY stemming from that Act. (b)     Foreign-Currency Transactions Act 1992 ( Uredba sa zakonskom snagom o deviznom poslovanju ; published in OG RBH no. 2/92) Section 144 read as follows: “Conditions and methods for repayment of credits used by authorised banks on the basis of foreign currency deposited with the National Bank of the SFRY prior to the entry into force of this Act and for return of the foreign currency from the deposit at the National Bank of the SFRY shall be regulated by separate legislation.” (c)     1996 Decision on Foreign-Currency Policy ( Odluka o ciljevima i zadacima devizne politike ; published in OG RBH no. 13/96) Section 7 of this decision provided that the issue of foreign-currency savings deposited with the National Bank of the SFRY, including the interest on these savings, “shall be resolved by the enactment of legislation concerning the public debt of Bosnia and Herzegovina or in another way within the overall consolidation of the public debt of Bosnia and Herzegovina and in consultation with the international community”. 3.     Resolution 93 (6) of the Committee of Ministers of the Council of Europe on the Control of Respect for Human Rights in European States not yet Members of the Council of Europe, adopted on 9   March 1993 The Resolution reads as follows: “The Committee of Ministers of the Council of Europe,         Acting under the Statute of the Council of Europe signed in London on 5 May 1949;         Having regard to the European Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Protocols thereto;         Considering that it is desirable that all European states become members of the Council of Europe and Parties to the European Convention on Human Rights and the Protocols thereto;         Wishing to make arrangements under which the Council of Europe can contribute to the setting up by European states which are not yet members of the Council of Europe and which so desire, as a transitional measure, within their internal legal system, of a body responsible for the control of respect for human rights that takes into account the substantive provisions of the European Convention of Human Rights;         Considering that the establishment of a transitional human rights control mechanism drawing on the competence and experience of the control organs of the European Convention on Human Rights might promote the process of accession to the Council of Europe;         Having consulted the European Court and Commission of Human Rights which have both indicated their agreement,         Resolves to contribute towards the control of respect for human rights in European non-member states, in accordance with the following principles: Article 1         At the request of a European non-member state, the Committee of Ministers may, after consultation with the European Court and Commission of Human Rights, appoint specially qualified persons to sit on a court or other body responsible for the control of respect for human rights set up by this state within its internal legal system (hereafter called the ‘control body’). Article 2         The number of members of the control body set up by the requesting state shall be such that the number of members appointed by virtue of this resolution will be greater than the number of other members. Article 3         The law applicable by the control body shall include the substantive provisions of the European Convention on Human Rights. Article 4         Practical arrangements concerning the participation described in Article 1 shall be specified in an agreement concluded by the Secretary General of the Council of Europe with the requesting state on behalf of the Committee of Ministers. Article 5         The arrangements under this resolution shall cease once the requesting state has become a member of the Council of Europe except as otherwise agreed between the Council of Europe and the state concerned.” 4.     The 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Agreement”) Three principal parties to the 1992-95 war in Bosnia and Herzegovina (the then Republic of Bosnia and Herzegovina, the Republic of Croatia and the then Federal Republic of Yugoslavia) signed the Dayton Agreement on 14   December 1995. It entered into force on the same day. There are twelve Annexes to the Agreement, including the Constitution of Bosnia and Herzegovina (Annex 4) and the Agreement on Human Rights (Annex 6). (a)     Constitution of Bosnia and Herzegovina (Annex 4 to the Dayton Agreement) The Constitution entered into force on 14 December 1995. Declarations on behalf of the then Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska approving the Constitution were attached to it. The following are its relevant provisions: Article I § 1 “The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be ‘Bosnia and Herzegovina’, shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders...” Article I § 3 “Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.” Article II § 1 “Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognized human rights and fundamental freedoms. To that end, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the [Dayton] Agreement.” Article II § 2 “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.” Article II § 6 “Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities, shall apply and conform to the human rights and fundamental freedoms referred to in [Article II § 2 above].”   Article II § 8 provides that all competent authorities in Bosnia and Herzegovina will cooperate with, and provide unrestricted access to, the European Court of Human Rights and the other supervisory bodies established by any of the numerous international agreements listed in Annex I to the Constitution. Article III § 2 (b) “Each Entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honor the international obligations of Bosnia and Herzegovina...” Article III § 3 (b) “The Entities and any subdivisions thereof shall comply fully with this Constitution, which supersedes inconsistent provisions of the law of Bosnia and Herzegovina and of the constitutions and law of the Entities, and with the decisions of the institutions of Bosnia and Herzegovina. The general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.” Article VI § 3 “The Constitutional Court shall uphold this Constitution. a. The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to: –     Whether an Entity’s decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina. –     Whether any provision of an Entity’s constitution or law is consistent with this Constitution. Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. b. The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina. c. The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.” Article VI § 4 “Decisions of the Constitutional Court shall be final and binding.” (b)     Jurisprudence of the Constitutional Court of Bosnia and Herzegovina On 26 February 1999 the Constitutional Court adopted its decision in case no. U 7/98. The following is the relevant part: “...According to Article VI.3 (b) of the Constitution of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina (hereinafter: the Constitutional Court) has jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina. Article II of the Constitution of Bosnia and Herzegovina deals with the protection of human rights and fundamental freedoms in Bosnia and Herzegovina. In particular, Article II.2 provides that the rights set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the European Convention) and its Protocols shall apply directly in Bosnia and Herzegovina and have priority over all other law. Moreover, Article II.3 specifies various human rights which shall be enjoyed by all persons within the territory of Bosnia and Herzegovina. It follows that issues of protection of human rights fall, in principle, within the Constitutional Court’s jurisdiction, and that the Constitutional Court has the competence, under Article VI.3 (b) of the Constitution of Bosnia and Herzegovina, to decide over such matters on appeals against decisions of other courts. However, Article II.1 of the Constitution of Bosnia and Herzegovina also provides that, in order to ensure the highest level of internationally protected human rights and fundamental freedoms, there shall be a Human Rights Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. Since the Constitution of Bosnia and Herzegovina specifically refers to that Commission and to the provisions contained in the Agreement on Human Rights, which is Annex 6 to the General Framework Agreement, the provisions of the Agreement on Human Rights must be considered as recognized by the Constitution of Bosnia and Herzegovina itself as being part of the whole system of protection of human rights and fundamental freedoms in Bosnia and Herzegovina. Moreover, it is significant that the Constitution of Bosnia and Herzegovina and the Agreement on Human Rights were adopted at the same time, on 14 December 1995, as Annexes to the General Framework Agreement for Peace in Bosnia and Herzegovina. The provisions of these two Annexes should therefore be considered to supplement each other, and in view of the link between these two Annexes, it can be concluded with certainty that the rules contained in the Agreement on Human Rights cannot be contrary to the Constitution of Bosnia and Herzegovina. The Agreement on Human Rights provides in its Article VIII that the Human Rights Chamber shall have jurisdiction to examine questions of alleged human rights violations, subject to the conditions set out in that Article. It is thus clear that human rights issues fall under the jurisdiction of both the Constitutional Court and the Human Rights Chamber. There is no mention in the Constitution of Bosnia and Herzegovina or in any other law of a specific hierarchy or other relationship between the Constitutional Court and the Human Rights Chamber. The question therefore arises whether, despite the absence of any express rules, such a hierarchy or relationship should be considered to exist and, in particular, whether one of these institutions should be considered competent to review the decisions of the other concerning human rights issues. This question already arose in Cases No. U 3/98 and U 4/98, but in its decisions in those cases, adopted on 5 June 1998, the Constitutional Court did not find it necessary to resolve the question, since the appeals had to be rejected for other reasons. The appellate jurisdiction of the Constitutional Court is based on Article VI.3 (b) of the Constitution of Bosnia and Herzegovina, which provides for such jurisdiction in regard to ‘a judgment of any other court in Bosnia and Herzegovina’. Although the Human Rights Chamber exercises its judicial functions with respect to alleged violations of human rights in Bosnia and Herzegovina, the Human Rights Chamber is an institution of a special nature. According to Article II.1 of the Agreement on Human Rights, the Human Rights Chamber is one of the two parts of the Commission on Human Rights for Bosnia and Herzegovina. According to Article XIV of the Agreement on Human Rights, the Commission on Human Rights will only function in its present form during a transitional five-year period, unless the Parties to the Agreement agree otherwise. In the legal terminology of the Agreement on Human Rights, the Human Rights Chamber is neither a court nor an institution of Bosnia and Herzegovina. Indeed, Article XIV of the Agreement specifically refers to the transfer of responsibility to ‘the institutions of Bosnia and Herzegovina’. It is significant that the Constitution of Bosnia and Herzegovina refers to the concept of a ‘court in Bosnia and Herzegovina’ not only in Article VI.3 (b) but also in Article VI.3 (c). The latter provision provides for the jurisdiction of the Constitutional Court over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible, in particular, with this Constitution or the European Convention and its Protocols. It is quite certain that the authors of this provision did not intend the Human Rights Chamber to be included among those institutions which should be competent to refer human rights issues to the Constitutional Court for preliminary consideration. It is also important to take into account certain provisions in the Constitution of Bosnia and Herzegovina and the Agreement on Human Rights which regulate the legal effects of the decisions of the Constitutional Court and the Human Rights Chamber. According to Article VI.4 of the Constitution of Bosnia and Herzegovina, the decisions of the Constitutional Court shall be final and binding. Similarly, Article XI.3 of the Agreement on Human Rights does not provide for any reviews of the decisions of the Human Rights Chamber, except in some cases by the Human Rights Chamber itself; they are thus final and binding. As these two provisions were adopted at the same time, the correct interpretation must be that the authors did not intend to give either one of these institutions the competence to review the decisions of the other, but rather considered that, in regard to human rights issues, the Constitutional Court and the Human Rights Chamber should function as parallel institutions, neither of them being competent to interfere in the work of the other and it being left in some cases to the discretion of applicants to make a choice between these alternative remedies. It is true that such a system could result in conflicting jurisprudences concerning some human rights issues. It may also have the disadvantage of creating a dilemma for the individuals whether to appeal to the Constitutional Court or to bring a case before the Commission on Human Rights. This, however, is a consequence of the system created by the Constitution of Bosnia and Herzegovina and the Agreement on Human Rights. Moreover, the dilemmas that might arise are mostly of a temporary nature, since the responsibility for the operation of the Commission on Human Rights will be transferred, after the initial transitional period, to the institutions of Bosnia and Herzegovina dealing with human rights, unless the Parties to the Agreement agree otherwise. It thus follows that the Constitutional Court has no jurisdiction in the present case and that the appeal must be rejected...” (c)     Agreement on Human Rights (Annex 6 to the Dayton Agreement) The Agreement on Human Rights was signed by the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska on 14 December 1995, when it entered into force. The following are the relevant provisions: Article I “The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex...” Article II “1. To assist in honoring their obligations under this Agreement, the Parties hereby establish a Commission on Human Rights (the ‘Commission’). The Commission shall consist of two parts: the Office of the Ombudsman and the Human Rights Chamber . 2. The Office of the Ombudsman and the Human Rights Chamber shall consider, as subsequently described: a. alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or b. alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex, where such violation is alleged or appears to have been committed by the Parties, including by any official or organ of the Parties, Cantons, Municipalities, or any individual acting under the authority of such official or organ. 3. The Parties recognise the right of all persons to submit to the Commission and to other human rights bodies applications concerning alleged violations of human rights, in accordance with the procedures of this Annex and such bodies. The Parties shall not undertake any punitive action directed against persons who intend to submit, or have submitted, such allegations.” Article III “... 2. The salaries and expenses of the Commission and its staff ... shall be borne by Bosnia and Herzegovina... ... 4. The Ombudsman and all members of the Chamber shall not be held criminally or civilly liable for any acts carried out within the scope of their duties. When the Ombudsman and members of the Chamber are not citizens of Bosnia and Herzegovina, they and their families shall be accorded the same privileges and immunities as are enjoyed by diplomatic agents and their families under the Vienna Convention on Diplomatic Relations. 5. With full regard for the need to maintain impartiality, the Commission may receive assistance as it deems appropriate from any governmental, international, or non-governmental organization.” Article VII §§ 1 and 2 “1. The Human Rights Chamber shall be composed of fourteen members. 2. Within 90 days after this Agreement enters into force, the Federation of Bosnia and Herzegovina shall appoint four members and the Republika Srpska shall appoint two members. The Committee of Ministers of the Council of Europe, pursuant to its Resolution (93) 6, after consultation with the Parties, shall appoint the remaining members, who shall not be citizens of Bosnia and Herzegovina or any neighboring state, and shall designate one such member as the President of the Chamber.” Article VIII “1. The Chamber shall receive by referral from the Ombudsman on behalf of an applicant, or directly from any Party or person, non-governmental organisation, or group of individuals claiming to be the victim of a violation by any Party or acting on behalf of alleged victims who are deceased or missing, for resolution or decision applications concerning alleged or apparent violations of human rights within the scope of paragraph 2 of Article II. 2. The Chamber shall decide which applications to accept and in what priority to address them. In so doing, the Chamber shall take into account the following criteria: a. Whether effective remedies exist, and the applicant has demonstrated that they have been exhausted and that the application has been filed with the Commission within six months from such date on which the final decision was taken. b. The Chamber shall not address any application which is substantially the same as a matter which has already been examined by the Chamber or has already been submitted to another procedure of international investigation or settlement. c. The Chamber shall also dismiss any application which it considers incompatible with this Agreement, manifestly ill-founded, or an abuse of the right of petition. d. The Chamber may reject or defer further consideration if the application concerns a matter currently pending before any other international human rights body responsible for the adjudication of applications or the decision of cases, or any other Commission established by the Annexes to the [Dayton] Agreement. e. In principle, the Chamber shall endeavor to accept and to give particular priority to allegations of especially severe or systematic violations and those founded on alleged discrimination on prohibited grounds. f. Applications which entail requests for provisional measures shall be reviewed as a matter of priority in order to determine (1) whether they should be accepted and, if so (2) whether high priority for the scheduling of proceedings on the provisional measures request is warranted. 3. The Chamber may decide at any point in its proceedings to suspend consideration of, reject or strike out, an application on the ground that (a) the applicant does not intend to pursue his application; (b) the matter has been resolved; or (c) for any other reason established by the Chamber, it is no longer justified to continue the examination of the application; provided that such result is consistent with the objective of respect for human rights.” Article XI “1. Following the conclusion of the proceedings, the Chamber shall promptly issue a decision, which shall address: a. Whether the facts found indicate a breach by the Party concerned of its obligations under this Agreement; and if so b. What steps shall be taken by the Party to remedy such breach, including orders to cease and desist, monetary relief (including pecuniary and non-pecuniary injuries), and provisional measures. ... 3. Subject to review [by the full Chamber of a panel’s decision], the decisions of the Chamber shall be final and binding. ... 5. The Chamber shall issue reasons for its decisions. Its decisions shall be published and forwarded to the parties concerned, the High Representative described in Annex 10 to the [Dayton] Agreement while such office exists, the Secretary General of the Council of Europe and the OSCE. 6. The Parties shall implement fully decisions of the Chamber.” Article XIV “Five years after this Agreement enters into force, the responsibility for the continued operation of the Commission shall transfer from the Parties to the institutions of Bosnia and Herzegovina, unless the Parties otherwise agree. In the latter case, the Commission shall continue to operate as provided above.” On 10 November 2000 the Parties to the Agreement on Human Rights extended the mandate of the Human Rights Chamber until 31 December 2003. Pursuant to their agreement of 25 September 2003 the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina was created with a mandate to decide on cases received by the Human Rights Chamber until 31 December 2003. 5.     The 2000 Statute of the Brčko District of Bosnia and Herzegovina This Statute entered into force on 8 March 2000. The following are its relevant provisions: Article 1 §§ 1 and 2 “The Brčko District (hereinafter the ‘District’) is a single administrative unit of local self-government existing under the sovereignty of Bosnia and Herzegovina. The District derives its powers of local self-government by virtue of each Entity having delegated all of its powers of governance as previously exercised by the two Entities and the three municipal governments within the pre-war Opština, as defined in Article 5 [below], to the District Government.” Article 5 “The territory of the District encompasses the complete territory of the Brčko Municipality with the boundaries as of 1 January 1991.” Article 71 § 2 “The Brcko District of Bosnia and Herzegovina is the legal successor to the Republika Srpska Brčko Municipality as well as to the administrative arrangements of Brka and Ravne-Brčko.” 6.     The 2001 Agreement on Succession Issues (“the Succession Agreement”) This Agreement was concluded by Bosnia and Herzegovina, the Republic of Croatia, the then Federal Republic of Yugoslavia (now Serbia and Montenegro), the former Yugoslav Republic of Macedonia and the Republic of Slovenia as successor States to the SFRY. It entered into force on 2 June 2004. Annex C to that Agreement regulates the matter of the financial assets and liabilities of the SFRY. Article 7 of this Agreement provides as follows: “Guarantees by the SFRY or its [National Bank] of hard currency savings deposited in a commercial bank and any of its branches in any successor State before the date on which it proclaimed independence shall be negotiated without delay taking into account in particular the necessity of protecting the hard currency savings of individuals. This negotiation shall take place under the auspices of the Bank for International Settlements.” 7.     Legislation of Bosnia and Herzegovina (a)     Privatisation of Companies and Banks Framework Act 1998 ( Okvirni zakon o privatizaciji preduzeća i banaka u Bosni i Hercegovini ; published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) nos. 14/98 of 27 July 1998 and 12/99 of 2 August 1999; amendments published in OG BH nos. 14/00 of 22 May 2000 and 16/02 of 11 July 2002) This Act has been in force since 4 August 1998. The relevant provisions read as follows: Section 2(1) “In accordance with the [Dayton Agreement], this Act expressly recognises the right of the Entities to privatise non-privately owned companies and banks located on their territory...” Section 4 “1. Proceeds from the privatisation of companies and banks located in the territory of one Entity shall be at the disposal of that Entity or the legal persons authorised to receive them under the laws of that Entity. 2. Claims against companies and banks to be privatised shall be deemed as a liability of the privatising Entity.” (b)     Criminal Code 2003 ( Krivični zakon Bosne i Hercegovine ; published in OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004 and 61/04 of 29 December 2004) This Code has been in force since 1 March 2003. Article 239 of this Code reads as follows: “An official person in the institutions of Bosnia and Herzegovina, institutions of the entities and institutions of the Brčko District of Bosnia and Herzegovina, who refuses to enforce a final and enforceable decision of the Constitu