British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
STEVANOVIC v. SERBIA - 26642/05 [2007] ECHR 802 (9 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/802.html
Cite as:
[2007] ECHR 802
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
SECOND
SECTION
CASE OF STEVANOVIĆ v. SERBIA
(Application
no. 26642/05)
JUDGMENT
STRASBOURG
9
October 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In
the case of Stevanović v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral
Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mr D. Popović, judges,
and Mrs F.
Elens-Passos, Deputy Section Registrar,
Having
deliberated in private on 18 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 26642/05) against the State
Union of Serbia and Montenegro, succeeded by Serbia on 3 June 2006
(see paragraph 37 below), lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by, at that time, a citizen
of the State Union of Serbia and Montenegro, Mr Velimir Stevanović
(“the applicant”), on 6 July 2005.
The
applicant was represented before the Court by Mr R. Gajić, a
lawyer practising in Belgrade. The Government of the State Union of
Serbia and Montenegro and, subsequently, the Government of Serbia
(“the Government”) were represented by their Agent, Mr S.
Carić.
On
2 June 2006 the Court decided to communicate the application to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1954 and lives in Belgrade.
A. The labour dispute and the mediation procedure
In
1992 the applicant was dismissed from the job which he held in a
local construction company.
On
16 June 1992 he filed a claim with the Third Municipal Court in
Belgrade (Treći opštinski sud u Beogradu), seeking
reinstatement.
On
16 June 1993 the Third Municipal Court ruled in favour of the
applicant.
On
22 September 1993 the District Court in Belgrade (OkruZni sud u
Beogradu) quashed this judgment and ordered a retrial.
From
23 December 1993 to 15 September 1999, the Third Municipal Court
ruled in favour of the applicant on six separate occasions, but each
time the District Court quashed those judgments on appeal and ordered
a retrial.
On
10 November 2000 the Third Municipal Court again ruled in favour of
the applicant. It also ordered the respondent company to reinstate
him until the adoption of a final decision in the proceedings.
On
17 August 2001 the District Court quashed this judgment and ordered a
retrial.
On
22 February 2002 the Third Municipal Court revoked its provisional
reinstatement order of 10 November 2000.
On
28 September 2004 the applicant requested his salary arrears.
At
the hearing held on 8 October 2004, the applicant complained about
the delay and sought the removal of the presiding judge.
On
18 October 2004 the President of the Third Municipal Court rejected
the applicant's request.
On
4 February 2005 the applicant apparently failed to appear at the
hearing scheduled for that date.
On
30 May 2005 the Third Municipal Court invited the parties to take
part in a mediation procedure and suspended the reinstatement suit.
On
29 November 2005 a mediator was appointed.
By
April 2006, five mediation hearings were scheduled and/or adjourned.
On
2 June 2006 the entire case file was apparently forwarded to
respondent State's Agent.
B. The civil compensation case
On
17 June 2004 and in respect of the above proceedings, the applicant
filed a separate civil claim against the State Union of Serbia and
Montenegro, seeking compensation for the breach of his “right
to a fair trial within a reasonable time, as guaranteed under Article
6 of the Convention”.
On
6 December 2005 the First Municipal Court in Belgrade (Prvi
opštinski sud u
Beogradu) rejected the applicant's claim as inadmissible.
On
24 July 2006 the District Court in Belgrade quashed this decision on
appeal and ordered a retrial. In its reasoning, inter alia, it
recognised the applicant's right to have his labour case resolved
within a reasonable time and referred to Article 6 of the Convention
as legally binding. Finally, the District Court noted that as of 3
June 2006 Serbia was the sole successor of the former State Union of
Serbia and Montenegro, meaning that there were no procedural
obstacles for the continuation of the applicant's case.
On
2 October 2006 the First Municipal Court suspended the proceedings,
stating that the State Union of Serbia and Montenegro had ceased to
exist in the meantime. Although he was entitled to file an appeal
against this decision, there is no evidence in the case file that the
applicant actually did so.
C. Other relevant facts
In
accordance with the Third Municipal Court's order of 10 November
2000, on 6 March 2001 the respondent company reinstated the applicant
(see paragraph 10 above).
The
applicant maintained that the respondent company had in the meantime
encountered serious financial difficulties, which is why it was “no
longer able to pay its employees” and was “under threat”
of being “declared insolvent”.
On
an unspecified date the Supreme Court (Vrhovni sud Srbije)
apparently instituted proceedings to have the presiding judge in
charge of the reinstatement case removed from the bench (razrešen).
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Judges Act as well as the
Obligations Act
The
relevant provisions of this legislation are set out in the V.A.M. v.
Serbia judgment (no. 39177/05, §§ 70-72, 13 March
2007).
B. Relevant provisions of the labour laws
1. Labour Act 2001 (Zakon o radu; published in the
Official Gazette of the Republic of Serbia - OG RS - nos. 70/01 and
73/01)
Article
122 § 3 provided that all employment-related disputes were to be
resolved by the courts within a period of 6 months from the date of
institution of the proceedings.
2. Labour Act 2005 (Zakon o radu; published in OG RS
no. 24/05 and 61/05)
This
Act entered into force on 23 March 2005 and thereby repealed the
Labour Act of 2001.
The
text of Article 195 § 3 of the Labour Act of 2005 corresponds to
the aforementioned Article 122 § 3 of the Labour Act of 2001.
C. Alternative Labour Disputes Resolution Act (Zakon o
mirnom rešavanju radnih sporova; published in OG RS no.
125/04)
Article
5 and Articles 30-37 of this Act provide, inter alia, that a
reinstatement case may be resolved by a State-appointed arbitrator.
Such proceedings, however, may only be instituted with the consent of
both parties and must be concluded within a period of thirty days as
of the date of the initial hearing.
D. Relevant constitutional provisions
Article
25 of the Serbian Constitution (Ustav Republike Srbije),
published in the Official Gazette of the Socialist Republic of Serbia
(OG SRS - no. 1/90) provided as follows:
“Everyone shall be entitled to compensation for
any pecuniary and non-pecuniary damages suffered due to the unlawful
or improper conduct of a State official, a State body or a public
authority, in accordance with the law.
Such damages shall be covered by the Republic of Serbia
or the public authority [in question].”
This
Constitution was repealed on 8 November 2006, which is when the “new”
Constitution (published in OG RS no. 98/06), entered into force.
The
substance of Article 35 § 2 of the new Constitution corresponds,
in its relevant part, to the above-cited text of Article 25 of the
previous Constitution.
E. Criminal Code 1977 (Krivični zakon Republike
Srbije; published OG SRS nos. 26/77, 28/77, 43/77, 20/79, 24/84,
39/86, 51/87, 6/89, 42/89, 21/90 and OG RS nos. 16/90, 26/91, 75/91,
9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02,
80/02, 39/03 and 67/03)
Article
243 of this Code defines “judicial malfeasance” (kršenje
zakona od strane sudije) as a separate criminal offence.
F. The Court of Serbia and Montenegro and the
succession of the State Union of Serbia and Montenegro
The
relevant provisions concerning the Court of Serbia and Montenegro and
the succession of the State Union of Serbia and Montenegro are set
out in the Matijašević
v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25,
19 September 2006).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the reinstatement case, as well as the
civil compensation suit, had not been concluded within a reasonable
time, as required by Article 6 § 1 of the Convention.
The
relevant part of this Article reads as follows:
“In the determination of his [or her] civil rights
and obligations .., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
1. Compatibility ratione personae
The
Government noted that on 6 March 2001 the applicant had been
reinstated pending the conclusion of his labour case (see paragraphs
10 and 25 above) and submitted that he had thereby been deprived of
his “victim status” within the meaning of Article 34 of
the Convention.
The
applicant recalled that the provisional reinstatement referred to had
been revoked in 2002 and pointed out that, from then on, he could
have been dismissed at his employer's absolute discretion.
Since
the complaints in question concern the length of the proceedings at
issue, which are still pending, and given the fact that his
reinstatement has indeed been devoid of any legal basis as of 22
February 2002 (see paragraph 12 above), it is clear that the
applicant has yet to obtain a “final acknowledgment” of
the violations allegedly suffered or be provided with any other
meaningful redress (see Dalban v. Romania [GC], no. 28114/95,
§ 44, ECHR 1999-VI).
The
Court therefore finds that the applicant has retained his victim
status and dismisses the Government's objection in this regard.
2. Compatibility ratione temporis
The
Government observed that all of the judgments concerning the
applicant's labour claim had been adopted by 2001, that the separate
compensation case was itself closely related to those proceedings,
and, lastly, that the respondent State had ratified the Convention on
3 March 2004. The applicant's complaints were therefore incompatible
with the provisions of the Convention ratione temporis.
The
applicant maintained that the violations in question were of a
continuing character.
Pursuant
to its extensive case-law on this issue (see, among many other
authorities, V.A.M. v. Serbia, no. 39177/05, § 102,
13 March 2007) and given that the impugned proceedings are still
pending, the Court finds that they fall clearly within its competence
ratione temporis as of 3 March 2004 (see also paragraphs 56-58
below). The Government's objection must therefore be dismissed.
3. Exhaustion of domestic remedies
The
Government submitted that the applicant had not exhausted all
effective domestic remedies.
In
particular, he had failed to complain about the delay in question to
the Supreme Court's Supervisory Board (see paragraph 28 above).
Further, he had not made use of the complaint procedure before the
Court of Serbia and Montenegro (see paragraph 37 above). Finally, the
applicant had neither brought a separate civil lawsuit under Articles
199 and 200 of the Obligations Act and Article 25 of the Constitution
(see paragraphs 28 and 33 above) nor filed a criminal complaint under
Article 243 of the Criminal Code 1977 (see paragraph 36 above).
The
applicant contested the effectiveness of these remedies.
The
Court has already held that the above remedies could not be deemed
effective within the meaning of its established case-law under
Article 35 § 1 of the Convention (see, mutatis mutandis,
V.A.M. v. Serbia, cited above, §§ 85-88
and 119, 13 March 2007). It sees no reason to depart from those
findings in the present application and concludes, therefore, that
the Government's objection must be rejected.
4. Conclusion
The
Court considers that the applicant's complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and finds no other ground to declare them inadmissible.
The complaints must therefore be declared admissible.
B. Merits
1. Arguments of the parties
Even
assuming that the applicant's complaints were not incompatible with
the Convention ratione temporis (see paragraph 43 above), the
Government argued that there had been no violation of Article 6 §
1 of the Convention.
The
applicant reaffirmed his complaints about the length of the
proceeding at issue.
2. Relevant principles
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
having regard to the criteria laid down in its case-law, in
particular the complexity of the case, the conduct of the parties and
of the relevant authorities, and the importance of what is at stake
for the applicant (see, among other authorities, Mikulić v.
Croatia, no. 53176/99, § 38, ECHR 2002 I).
Further,
according to the Court's settled jurisprudence, repeated
re-examination of a single case following remittal may in itself
disclose a serious deficiency in the respondent State's judicial
system (see Pavlyulynets v. Ukraine, no. 70767/01, § 51,
6 September 2005).
Finally,
the Court recalls that reinstatement proceedings are of “crucial
importance” to plaintiffs and that, as such, they must be dealt
with “expeditiously” (see Guzicka v. Poland, no.
55383/00, § 30, 13 July 2004). Indeed, this requirement is
reinforced additionally in respect of States where domestic law
provides that such cases must be resolved with particular urgency
(see, mutatis mutandis, Borgese v. Italy, judgment of
26 February 1992, Series A no. 228 B, § 18; see also
paragraphs 29-31 above).
3. The Court's assessment
(a) Period to be taken into account
The
Court notes that the labour case was brought on 16 June 1992 and,
further, that it is currently still pending at first instance (see
paragraphs 5-20 above). Since the respondent State ratified the
Convention on 3 March 2004, it has thus been within the
Court's competence ratione temporis for more than three years
and six months.
The
Court further recalls that, in order to determine the reasonableness
of the delay at issue, regard must be had to the state of the labour
case on the date of ratification (see, mutatis mutandis,
Styranowski v. Poland, judgment of 30 October 1998, Reports
of Judgments and Decisions 1998-VIII) and notes that on 3 March
2004, following eight remittals, it had already been pending for more
than eleven years and eight months.
Finally,
the Court observes that the related civil compensation suit,
initiated on 17 June 2004 and suspended since 2 October 2006 at first
instance, has been within its competence ratione temporis from
the outset, a period of three years and three months (see paragraphs
21-24 above).
(b) The labour case
The
Court notes that, since the respondent State's ratification of the
Convention, no decisions on the merits of the applicant's case have
been rendered (see paragraphs 12-20 above). Indeed, there has
apparently been no movement in the case since 2 June 2006 (see
paragraph 20 above; see also, mutatis mutandis, Hefková
v. Slovakia, no. 57237/00, §§ 35 and
36, 31 May 2005). Lastly, the applicant's conduct has not
contributed to the procedural delay complained of except, perhaps, in
respect of the hearing scheduled for 4 February 2005 (see paragraph
16 above).
(c) The civil compensation suit
The
Court observes that no hearings have been held in these proceedings.
Instead, three decisions on the admissibility of the applicant's
claim were adopted by 2 October 2006 and the case was suspended in
view of the fact that “the State Union of Serbia and Montenegro
had ceased to exist” in the meantime (see paragraph 24 above).
The Municipal Court, therefore, refused to consider the applicant's
claim on its merits, notwithstanding the fact that Serbia was the
undisputed successor of the former State Union of Serbia and
Montenegro (see paragraphs 23 and 37 above). Finally, the Court notes
that there is no evidence in the case file that the applicant had
filed an appeal against the Municipal Court's decision of 2 October
2006, which is why no delay as of that date can be imputed to the
domestic authorities (see paragraph 24 above).
(d) Conclusion
Having
regard to the criteria laid down in its jurisprudence and the
relevant facts of the present case, including its complexity, as well
as the conduct of parties and of the authorities, the Court considers
that the length of each of the two sets of proceedings complained of
has failed to satisfy the reasonable time requirement. There has,
accordingly, been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also complained about having had no effective domestic
remedy at his disposal to expedite the impugned labour case or obtain
compensation for the past delay. The Court considers that this
complaint falls to be examined under Article 13, which provides as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The Court notes that the applicant's complaint raises
issues of fact and law under the Convention, the determination of
which requires an examination of the merits. It also considers that
the applicant's complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and that it cannot
be rejected on any other ground. The complaint must therefore be
declared admissible.
B. Merits
1. Arguments of the parties
The
Government stated that there has been no violation of Article 13, but
the applicant reaffirmed his complaints.
2. Relevant principles
The
Court notes that a remedy concerning length is “effective”
if it can be used either to expedite the proceedings before the
courts dealing with the case, or to provide the litigant with
adequate redress for delays which have already occurred (see
Sürmeli v. Germany [GC], no. 75529/01, § 99,
ECHR 2006).
The
Court also recalls that the best solution in absolute terms is
indisputably, as in many spheres, prevention. Where the judicial
system is deficient with regard to the reasonable-time requirement in
Article 6 § 1 of the Convention, a remedy designed to expedite
the proceedings in order to prevent them from becoming excessively
lengthy is the most effective solution. Such a remedy offers an
undeniable advantage over a remedy affording only compensation, since
it also prevents a finding of successive violations in respect of the
same set of proceedings and does not merely repair the breach a
posteriori, as does a compensatory remedy. Some States have fully
understood the situation by choosing to combine the two types of
remedy, one designed to expedite the proceedings and the other to
afford compensation (see Sürmeli v.
Germany [GC], cited above, §100).
3. The Court's
assessment
The
Court notes that the Government have already suggested in their
preliminary objection that there were remedies available for the
applicant's complaints about the length of the proceedings under
Article 6 § 1, and finds that, in so far as they rely on the
same reasoning by way of their response to the Article 13
complaint, their arguments must, just like their objections, be
rejected on the grounds described at paragraphs 46-49 above.
The
Court considers, therefore, that there has been a violation of
Article 13 taken together with Article 6 § 1 of the
Convention on account of the lack of an effective remedy under
domestic law for the applicant's complaints concerning the length of
civil proceedings.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The
applicant claimed a total of 114,845 euros (EUR) for pecuniary and
non-pecuniary damages. As regards the former, he referred to salary
arrears, unpaid social security contributions and the free
distribution of his employer's shares, while, concerning the latter,
he stated that he had suffered considerable mental anguish as a
result of the length of the proceedings in question.
The
Government contested those claims.
The
Court considers that the applicant's pecuniary claim has not been
substantiated by any relevant supporting evidence and finds that it
must, therefore, be rejected in its entirety. However, making its
assessment on an equitable basis and having regard to the
circumstances of the case, the Court awards the applicant EUR 3,500
in respect of the non-pecuniary damage suffered.
B. Costs and expenses
The
applicant also claimed EUR 7,500 for the costs and expenses incurred
before the domestic courts.
The
Government contested this claim.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
In
the present case, the Court considers that the amount claimed by the
applicant is excessive. Regard being had to the information in its
possession and the above criteria, however, the Court considers it
reasonable to award the applicant the sum of EUR 1,000 under this
head.
C. Default interest
The
Court considers it appropriate that the default interest 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 there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
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 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage as well as EUR 1,000 (one thousand euros) for costs and
expenses, which sums are to be converted into the national currency
of the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
F. ELENS-PASSOS F. TULKENS
Deputy Registrar President
