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1 SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES Contact: Clare Ovey Tel: DH-DD(2017)213 Date: 24/02/2017 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1280 meeting (7-9 March 2017) (DH) Communication from Bosnia and Herzegovina (14/02/2017) with reply of Serbia (23/02/2017) in the case of Ališić and others v. Serbia and Slovenia (Application No /08) Information made available under Rule 8.2a of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. * * * * * * * * * * * Les documents distribués à la demande d un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : 1280 réunion (7-9 mars 2017) (DH) Communication de Bosnie-Herzégovine (14/02/2017) et réponse de la Serbie (23/02/2017) dans l affaire Ališić et autres c. Serbie et Slovénie (Requête n 60642/08) [anglais uniquement] Informations mises à disposition en vertu de la Règle 8.2a des Règles du Comité des Ministres pour la surveillance de l exécution des arrêts et des termes des règlements amiables.

2 REPRESENTATION PERM11.'YENTE DE LA BOSNIE-HERZEGOl.L\'E AUPRES DU CONSEIL DE L'EUROPE 16. allé".\j>ach 6 _71)()1) S1rasbu11rg TJI. 03?0 22?J 5'! Fax.03 SS 3j DG FEV SERVICE DE L'EXECUTION DES ARRETS DE LA CEDH No /2017 Strasbourg, 14 February 2017 Council of Europe Dircctoratc Gcncral l/human Rights and Rule of Law Ms Genevicve Mayer Head of the Department for the Exccution of Judgcmcnts of the ECH R Dear Madame Mayer. l have the pleasure to forward here with the letter or ;\mbassador i\lrnîr Sahovic. Assistant Minister, Ministry of Foreign Affairs of Bosnia and Herzcgo\'ina. conccrning the cxccution of the ECHRjudgmcnt in the case '"Alisic'" - Serbian (Cornments on Serbian s lm.v and comments on cirait decisions for next Dl!) Arnbassador ~ '.. ilc \

3 BOSNA I HERCEGOVINA Ministarstvo vanjskih poslova BOSNJA AND HERZEGOVINA Ministry of Foreign Affairs iv1f A-BA-R1-0SCE-VE No: Sarajevo. 14 Fcbruary 2017 Ms Gcnevieve MAYER Head of the De pan ment for the Exccution of Judgements of the ECHR Directorate Gcncral l - Human Rigths and Rule of Lav.: Council of Europe DG FEV SERVICE DE L'EXECUTION DES ARRETS DE LA CEDH Dear Ms Mayer, Rcferring to the Notes on the Agenda for the h meeting (DH), scheduled for 7-9 March 20! ï. we would like to inform you of the following: Bosnia and Hcrzcgovina express its satisfaction regarding the foct that Serbia adopted the n.:vised Lavv aimcd at introducing a repayment scheme lor the 'old" fore ign currency savings in foreign branches of its banks. It is a first step tov;ard the full irnplementation of the ECHR 's judgment in the case of Ali sic and others v. Serbia and Slovenia (1\pplication No 60642/08). Nevcrtheless. we have to draw your attention to the foct that certain articles of the Scrbian Law do not comply with the Alisic judgment, or do no! comply with the norms or international law as follows: Article 1. Paragraph 3 of the Law According to this Article of the Law, the obligations, arising from unpaid foreign currcncy savings, depositecl by the citizens of the former Y ngoslav republics in banks headqua1iered in the Repuhlic of Serbia and their subsidiarics at the territory or the former Yugoslav republics of Yugoslavia, are applicable to their successors as wcll.. Accorcling to this provision, exercising the right to foreign currency savings is not possible for thosc persans who have amassed their savings by means of any other legal grounds (gift agreement. contract for support until dcath, contract of dcposit and care, etc.). Law of succession is rcgulated by the regulation in the field of succession and the rights are cquatcd with the rights arising from other laws regu!ating the field of obiigatory relations. For instance, hy means of gift agreements, a gift-givcr ex.presses his/her willingness to hand over or is obliged to hand a particular gift ovcr to a gift-receiver. or to band over other right ~lnsala '.!.Sarajt,o."\ti: (+Jl\7 33) 281-IOO, l'ax: (+387 JJ) 227- J5(.. ;\lus:i"12:s;ira;-;;,_ l'hn11c: (d87 3J)!Hl-IOtl, F:n: ( )

4 without compensation. The main purpose of the gift is the gift-giver's intention ofwillingness to present someone with the gift (animus donandi - causa donandi) as we ll as the giftrecciver's readiness to receive the gifl. Accordingly, the gift reprcsents the ownership right that shoulcl and must beequated with fulfilling other rights, so that any restriction of the ownership right docs not cornply with the Eurnpean Convention on Human Rights and fundamental Freedoms. Article 3 of the Law Article 3 of the Law stipulates that the persans referred to in Article l, paragraph 1, item 1) of this Law shall be entitled to the paymcnt of foreign currency savings only tmder condition of rcciprocity, and that the existence of rec iprocity refcrred to in paragraph l of this Article shall be provided by the Ministry of Justice. \Ve belicve that this Article of the Law is unclear and incomplete bccause one is unable to discem from Article 3 of the Law who is required lo obtain a cenificate from the competcnt ministry - whether the ov.rner of previous forcign cunency savîngs or the compctent authorities of the Republic of Serbia. as well as the period and the reason of its proving. Article 4 of the L::nv This Article provides for the calculation of interest at the agreed intcrest rate, or at an interest rate of 5%, if the agreed interest rate cannot be dctcnnined until 31 December 1997; for the accrued intercst at an interest rate of 2% annually for the period bctween 1 January 1998 and 31 May 2016; and for the interest calculatcd at an interest rate of 0.5% annually for the period bctwecn 1 June 2016 and the maturîty of bond rates. [n Article 2 of the Law on regulating Public Debt of the Fedcrnl Republic of Yugoslavia based on foreîgn currency savings of citizens ("Official Gazette of SFR. Y no. 36/02) intercst on foreign currcncy deposits is 2% from 1 January 1998 unti l maturity payment. The paymcnt was made parti y in cash (EUR 276, l 0 in 2002, EUR in 2003 anà EUR 530 in 2004), and the rest in bonds and twelvc annual rmcs from 2005 to 31 May Accordingly, the same amount of interest is not officially recognized to the savers form Bosnia and Herzegovina and other republics from the former Republic of Yugoslavia as the persons who deposited their savings in Serbian banks, which was an obligation under the.ludgement in the case "A!isié and Othcrs"(parngraph 146. of the Judgement - appl ication no. 606.:/2/08). Article 11 of the Law This A1ticle indicates that the application claîms can be submitted within a ycar frorn the date of publication of the invitation, and after the cxpiry of this dead!ine the right on the application for the unpaid foreign currency savings rcfcrrcd to in Article l of th is Lnw will be los!. In this way, the acquired right limits the character of property right protected by Article 1 of Protocol 1 of the European Convention for the Protec tion of Human Rights and Fundamcntal Freedoms ("Every natural or legal person is entitied ro lhe peacc/id e1?foyment of his/her

5 possessions. No one shall be dispossessed. excepr in Ehe public interesc and on/y wirh!he conditions provided by the La w and genera! principles o(the International Law. ") And after the expiration of the administrative de::.idlinc, that right can be cxercised in a regular court proceedings but the confinement of the rights oc the dcadline prescribcd by the Lavv provisions violate the right to possessions. Article 12, Paragraph 2 and Article 13, Paragraph 3 of the Law The adopted Law stipulates that in addition to the application claims on the basis of foreign currency savings, it is necessary to submit, among other documents, original savings book; and in Article 13, paragraph 3, it is said that if the original savings book is not submitted, the applicant is required to iniliate the proceedings bcfore the compctent court of the Republic of Serbi a in order to determine the existence of claim and its amount. This procedure further complicates the exercising of the righ1s of savers; the process is prolonged and requires additional costs because it is clear that a particular nurnber of sa.vers has no original savings books because of the passage of tirne and the previous events in the former SFRY. ln section 148 of the Judgemcnt, it is stated: "No request must be denied because rhere is 110 original conrracl or a savings book (i egarding the time that has passed and the wars that ajfected sa many people in di/ferenr ways) provided thar the persans concerned can prove rheir daims othenvise." Given the importance of the presented concerns, Bosnia and Herzegovina submits a draft decision on this malter to be adopted by the Deputies at the DH meeting, 7-9.tvfarch 2017, Yours sincerely,,(,_,.../~~/a lmir S -AFIOVI~ '...,,. ' --.',.,.. ~.. ~-~.:> :<;:- ~ /../< -.. ~~ :,,, ~ _, " An.;i)a~~ -ad~ t t Z.-<-z~ Assistant Minister l\tlinistry of Foreign Affairs of Bos11ia and Hcrzegovina

6 DRAFT DECISIONS The deputies 1. noted with satisfaction that on 28 December 2016 the Serbian Parliament adopted the law introducing a repayment scheme with a view to allowing the applicants and ail others in their situation (including those app!ictitions pending before the European Court) to recover "old" foreign-currency savin3s; and that the law entered into the force on 30 December 2016 and wi!i become operational by mid-february 2017; 2. noted that the Serbian authorities have taken measures to ensure the effective implernentation of the law, such as securing premises and staff for the treatment of applications from depositors, and invited them to put additional effort to ensure the proper functioning of the repayment scheme in line with Convention standards, and under the same conditions as Serbian citizens who had such savings in domestic branches of Serbian banks; as well as to provide information regularly to the Committee in this respect; 3. decided to resume consideration of this item at their next meeting (June 2017) on the basis of the information to be provided bv the authorities as regards the progress in the implementation of the law.

7 1 ' ' MISSION PERMANENTE DE SERBIE AUPRES DU CONSEIL DE L'EUROPE 26, Avenue de la Forêt Noire STRASBOURG Tél : ~:~! ' l SERVICE DE L'EXECUTIŒ": ( Lcr:s ARRETS DE U\ CEDH ~--... ~ ~.. -- No. i0'5-1 /z 0 rt- Strasbourg, 22 February 2017 Dear Ms Mayer, I would like to thank you for transmitting the letter of the Permanent Representation of Bosnia and Herzegovina to the Cormeil of Europe concerning the relevant law adopted by the Republic of Serbia in the framework of the execution of the ECHR judgment in the case "Alisié and Others against Serbia". From my side, I am sending you the letter of Ms Natasa Plavsié, the Agent of the Republic of Serbia before the ECHR, with the responses to the comments of Bosnia and Herzegovina. The Serbian side agrees that this letter be sent to the relevant authorities of Bosnia and Herzegovina. Y ours sincerely, Ms Geneviève MAYER Head of Department Department for the Execution of the Judgements Cormeil of Europe Strasbourg

8 DG FEV The Republic of Serbia THE STATE ATTORNEY'S OFFICE The Agency Department before the European Court of Human Rights No: Elp 31/15 Date: 22 February 2017 Belgrade SERVICE DE L'EXECUTION DES ARRETS DE LA CEDH Madam Genevieve MAYER Head of the Department for the Execution of Judgments of the European Court of Human Rights Council of Europe Strasbourg Subject: Response ta the letter from Bosnia and Herzegovina dated 14 February 2017 concerning the case: Alisié and Others v. Serbia and Slovenia ( ) Dear Madam Mayer, 1. The Government of the Republic of Serbia presents its compliments to the Department for the Execution of Judgments of the European Court of Human Rights and the authorities of Bosnia and Herzegovina and acknowledges the receipt of the letter mentioned above. ln reply, the Govemment has the honour ta provide the following clarifications in respect of the concerns expressed in the letter regarding the law Serbia adopted ta execute the judgment in the Alisié case and amendments proposed ta the draft decision ta be adopted at the 128Q 1 h DH meeting (March 2017) in this case.

9 Belgrade, 22 February As an opening remark, the Government of the Republic of Serbia reaffirms its strong commitment te pursuing the policy of good neighbouring relations and promoting stability in the region. Within this context, the Govemment of Serbia is particularly attached to its commitment ta secure to ail persans within its jurisdicticn the highest level of internationally recognised human rights and fundamental freedom _ flowing out from the European Convention on Human Rights. 3. ln this respect, the Government affirms that it remains attached to the constructive dialogue with ail successor States of the former Socialist Federative Republic of Yugoslavia in resolving outstanding issues in good faith. ln this respect, the Government stands ready to maintain dialogue with Bosnia and Herzegovina and its depositors with a view to attending to their concems in respect of the repayment scheme set out in the Serbian law and providing the necessary clarifications. The Govemment is willing ta maintain this dialogue in any format, including bilateral contacts, under the auspices of the Secretariat or not, and if necessary in trilateral arrangements including the other Respondent State. 4. Having said that, the Government notes that the authorities of Bosnia and Herzegovina have not raised so far any concems in respect of the Serbian repayment scheme nor sought to obtain clarifications from the Serbian authorities nor any such concerns have been voiced by the civil sector in the past. 5. ln this respect, the Government would like to make two comments. Firstly, the Govemment sought in good faith to maintain communication with Bosnia and Herzegovina in respect of the repayment scheme in Serbia. ln particular, shortly after the European Court's judgment, in early 2015, the Serbian Minister of Finance addressed a letter to the Federation Ministry of Finance of Bosnia and Herzegovina seeking their cooperation in this matter. The Committee of Ministers of the Council of Europe has been informed accordingly (see DH-00(2015)69}. ln the absence of any response, the Serbian Minister of Finance repeatedly addressed letters to his counterparts in the Federation Ministry of Finances of Bosnia and Herzegovina on 29 December 2015 and 2 February However, these letters remained unanswered to date. 6. Secondly, the Govemment communicated the key solutions set out in the law two years age in April 2015 (see DH-00(2015)397) and regularly updated the Committee of Ministers of the Council of Europe in this respect. On the basis of this information, the Committee "noted in particular that the conditions envisaged for repayment of the deposits concemed were based on the same interest rates as were applied to Serbian citizens who had such savings in domestic branches of Serbian banks" (June 2015) and "noted with satisfaction the detailed explanations given by the Serbian authorities as regards the manner in which the Response to the letter from Bosnia and Herzegovina dated 14 February Alisié 2

10 Belgrade, 22 February 2017 proposed repayment scheme will comply with the Court's judgment" (September 2015) while repeatedly urging Serbia ta adopt the law. Bosnia and Herzegovina acquiesced with these decisions. ln addition, the text of the draft law has a!so been made available on the Par1iament's website ta the public at large. lt should have thus been known ta the authorities of Bosnia and Herzegovina much before. 7. The Government dealt with this complex matter in good faith considering the need to.allocate major funds and resources ta repay depositors on one side and the need to abide by the European Court's judgment and ta secure everyone within its jurisdiction the Convention rights on the other. 8. ln this respect, the Government would like to highlight that no concerns have been raised in respect of the Serbian repayment scheme by the authorities of Bosnia and Herzegovina so far before the Committee of Ministers or in bilateral contacts with the Serbian authorities. Referring the issues to the Committee of Ministers of the Council of Europe first without seeking ta clarify them in bilateral contacts in good faith might not constitute in our view the most productive avenue of resolving the related issues. 9. The Government would now like te address specific concerns raised in the letter, while noting that these concerns largely match the concerns raised in the recent communication received from an association of depositors from Bosnia and Herzegovina. 1 O. Assignments and transfers of deposits. The authorities of Bosnia and Herzegovina hold a view that under the Serbian law persans ta whom the deposits concemed were assigned or transferred through various legal transactions (such as gifts, lifelong care contracts and the!ike) will not be eligible ta apply for repayment. 11. ln response, the Government recalls the European Court's indications in 10 of the operative part of the judgment that "Serbia must make all necessary arrangements... in order ta allow Mr èahdanovié and all others in his position to recover their "oldd foreign-currency savings under the same conditions as Serbian citizens who had such savings in domestic branches of Serbian banks;" 12. lt transpires from the judgment that Mr Sahdanovié has been a depositor himself and has not obtained his deposits by way of any legal transaction. The Government is therefore of the opinion that persons who obtained title to deposit claims by virtue of various legal transaction are not in his position. 13. Bearing in mind the need to find a global solution for the issue of "oldn foreigncurrency savings held by the nationals of other successor States in the Serbian Response to the letter from Bosnia and Herzegovina dated 14 February 2017! Allslé 3

11 Belgrade, 22 February 2017 banks, the Serbian law however expressly indicated that depositors' heirs would be eligible to apply for repayment (Article 1, Section 3 of the Law). 14. Finally, the Government stresses these daims have neither been stipulated in the initial repayment scheme, in relation to Serbian citizens. However, these claims might be examined in accordance with the general rules of the domestic law to verify whether title holders claiming repayment of deposits meet the requirements of the law for a particular transaction depending on circumstances of each particular case. 15. The Government considers that the above clarification would be sufficient to dispel the concerns raised in respect of eligibility of assignees and transferees te apply for repayment under the Serbian law. 16. Reciprocity. The authorities of Bosnia and Herzegovina expressed certain doubts as to the rationale and operation of the principle of reciprocity in the Serbian law. 17. ln response, the Government recalls that on 10 April 2001 Bosnia and Herzegovina and the republic of Serbia, as the Federal Republic of Yugoslavia successor, signed the Agreement on Succession Issues together with other successor States of the Socialist Federal Republic of Yugoslavia. Bosnia and Herzegovina and the Republic of Serbia have an obligation to abide by its Article 7 in Annex G Private Property and Acquired Rights of the Agreement on Succession Issues, which reads as follows: "Ali natural and legal persans from each successor State shall, on the basis of reciprocity, have the same right of access ta the courts, administrative tribunats and agencies, of that State and of the other successor States for the purpose of realising the protection of their rights." 18. The reciprocity requirement is therefore binding upon both Bosnia and Herzegovina and the Republic of Serbia in this matter. To avoid any doubt, the Govemment would like to affirm that this reciprocity requirement is met in relations between Serbia and Bosnia and Herzegovina. This condition will therefore net affect or prejudice in any way the entitlement of depositors from Bosnia and Herzegovina, including those from the Federation of Bosnia and Herzegovina, to exercise their right to access courts and administrative agencies in Serbia to claim repayment of their deposits. 19. The Government holds a view that the above clarification dispels any doubt the authorities of Bosnia and Herzegovina might have in this respect. 20. lnterest rates. Bosnia and Herzegovina raised concerns that the interest rates set out in the law might not be compliant with the European Court's indications. Response tothe letter from Bosnia and Herzegovina dated 14 February Allsié 4

12 Belgrade, 22 February ln response, the Govemment would like to indicate that, pursuant to the law, the fo!lowing annual interest rates shall be payable to the depositors: original rate until 31 December 1997 or 5% if the rate cannot be established; 2% between 1 January 1998 and 31 May 2016; 0.5% after 1 June 2016 until the full repayment. 22. The Government would like to hightight that the European Court indicated in paragraph 45 of the judgment that the following interest rates were payable in the initial repayment scheme intended for non-nationals of other successor States: original rate until 31 December 1997; 2% between 1 January 1998 and 31 May 2016 (the date when the last payments were made under the initial repayment scheme). 23. lt therefore transpires from the above facts that the conditions set out in the law ctosely follow the European Court's indications set out in paragraph 45 of the judgment in terms of interest rates. The interest rates provided in the Serbian law mirror the interest rates indicated by the European Court in the paragraph concemed. 24. ln addition, the Government would like to draw the attention of the authorities of Bosnia and Herzegovina that in June 2015 the Committee of Ministers of the Council of Europe "noted in particular that the conditions envisaged for repayment of the deposits concerned were based on the same interest rates as were applied to Serbian citizens who had such savings in domestic branches of Serbian banks". The Committee has therefore resolved this point and Bosnia and Herzegovina did not raise any objection in respect of this decision. 25. Time-frame for applying. Bosnia and Herzegovina expressed concems that the time-frame set out in the law to file applications for repayment might not be in compliance with Convention requirements. 26. ln response, the Government would like to highlight that the modalities of execution of this judgment are within the margin of appreciation of the Respondent State. ln this respect, the Government would like to recall that in 2012 the High Level Conference on the Future of the European Court of Human Rights adopted the Brighton Declaration noting in particular the following: "The States Parties and the Court share responsibility for realising the effective imp!ementation of the Convention, underpinned by the fundamental principle of subsidiarity. The Convention was concluded on the basis, inter alia, of the sovereign equality of States. States Parties must respect the rights and freedoms guaranteed by the Convention, and must effectively resolve violations at the national level.n Response to the letter from Bosnia and Herzegovina dated 14 February Alisié 5

13 Belgrade, 22 February The Govemment considers that the solutions provided in the law will effectively resolve violations at the national level in respect of "old" foreign-currency savings deposited with the Serbian banks in the territory of Bosnia and Herzegovina. 28. ln addition, the Govemment would like to indicate that the Committee of Ministers of the Council of Europe accepted in the past introducing a time-frame for applications ta the national authorities to make claims (see, for instance, Final Resolution CM/ResDH(2009)89 in Broniowski against Poland or Final Resolution CM/ResDH(2016)112 in Kurié aga_inst Slovenia). ln this vein, the attention of the authorities of Bosnia and Herzegovina is drawn to the fact that in September 2015 the Committee of Ministers of the Council of Europe "noted with satisfaction the detailed explanations given by the Serbian authorities as regards the manner in which the proposed repayment scheme will comply with the Court's judgment". Bosnia and Herzegovina acquiesced with this decision and raised no objection at the time. 29. Judicial review. Bosnia and Herzegovina raised concerns that the provision of Article 13 of the Law prescribing the verification would be referred to the courts in case of lack of original bankbooks, which in its view might generate protraction and increased costs. 30. ln response, the Government would like to recall the European Court's indications in paragraph 148 of the judgment in this respect: ~To allow the Serbian and Slovenian authorities to verify the balance in their accounts, the applicants and all others in their position must comply with the requirements of any verification procedure ta be set up by those States. That being said, nô claim should be rejected only because of a lack of original contracts or bankbooks (given the lapse of time and the wars that affected so many people in different ways), provided that the persans concerned are able to prove their claims by other means. Furthermore, any and all verification decisions must be subject to judicial review." 31. The Govemment took into consideration the above indications and secured that no claim would be rejected only because of lack of original contracts or bankbooks, provided that the persans concerned were able to prove their claims by other means. ln line with the European Court's indications, the law ensured that all decisions concerning the amounts payable were subject ta judicial review. The immediate referral to courts in specific situations such as lack of original bankbooks expected to raise time-consuming questions in the verification process has been introduced with a view to respecting the principle of efficiency and effectiveness and in the interests of depositors. The Serbian authorities notably assessed that this solution would enable depositors to obtain final Response to the letter from Bosnia and Herzegovina dated 14 February Alisié 6

14 Belgrade, 22 February 2017 resolution of their claims more rapidly than if they were to wait for the administrative body to make a decision, which, in turn, could be further referred to the domestic courts for their review. Therefore, the solution adopted complies with the principle of efficiency and effectiveness and prevents undue protractian. 32. As regards this issue, the Government would also like to refer the authorities of Bosnia and Herzegovina to the above considerations on its margin of appreciation and subsidiarity principle in devising measures required to execute the European Court's judgment (see paragraph 26) aise applicable here. 33. Global conclusion. ln view of the above, the Government considers that the repayment scheme complies with the European Court's indications and effectively resolves violations concemed at the national level. The Govemment stands ready to maintain constructive dialogue with Bosnia and Herzegovina if they require further clarifications in respect of the repayment scheme in Serbia. With a view to ensuring that this dialogue could take place in a constructive atmosphere, the Serbian authorities provided their consent to the amendments ta the draft decision ta be adopted at the farthcoming OH meeting in March. 1r,3Jsié Agent of the Republic of Serbia before the ECHR Response to the letter from Bosnia and Herzegovina dated 14 February Alislé 7