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JOVICEVIC v. SERBIA - 2637/05 [2007] ECHR 998 (27 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/998.html
Cite as:
[2007] ECHR 998
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SECOND
SECTION
CASE OF JOVIĆEVIĆ v. SERBIA
(Application
no. 2637/05)
JUDGMENT
STRASBOURG
27
November 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 Jovićević 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 R. Türmen,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Mrs D.
Jočienė,
Mr D. Popović, judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 2637/05) against the
Republic of Serbia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Serbian national, Mr Tomislav
Jovićević
(“the applicant”), on 25 December 2004.
The
Serbian Government (“the Government”) were represented by
their Agent, Mr S. Carić.
On
17 October 2006 the
Court decided to give notice of 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 1935 and lives in Beograd.
On
16 July 2001 the applicant, along with fourteen other individuals,
instituted civil proceedings against his former employer seeking
payment of certain sums of money.
On
13 August 2003 the Beograd Fourth Municipal Court declared the action
inadmissible because the plaintiffs' lawyer had failed to submit a
full list of plaintiffs and their addresses, a specification of their
claims and a power of attorney.
On
appeal, on 28 April 2004 the Beograd District Court quashed the
first-instance decision and remitted the case. It found that the
plaintiffs' lawyer had supplied the requested documents and that the
case was suitable for examination on its merits.
On
16 November 2004 the applicant filed a complaint with the Supreme
Court concerning the length of the proceedings. The Supreme Court
forwarded that complaint to the president of the Beograd Fourth
Municipal Court, who, having reviewed the case file, informed the
applicant that the next hearing in his case was scheduled for 22
December 2004.
At
the hearing held on that date, the court decided to split the claims
made by the various plaintiffs into separate proceedings and another
judge was appointed to hear the applicant's case. The newly appointed
judge ordered the joinder of the applicant's case to the initial case
file, but was unable to obtain that file until 11 June 2005.
The
court apparently held hearings on 19 January, 11 April, 6 June, 3
July and 23 October 2006.
On
5 April 2007 the first-instance court gave judgment in the case and,
according to the information provided by the parties to date, the
proceedings are currently pending before the second-instance court
following the applicant's appeal.
II. RELEVANT DOMESTIC LAW
A. Relevant provisions of the Judges Act and 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. Criminal Code 2005 (Krivični
zakonik; published in OG RS nos. 85/05, 88/05 and 107/05)
Sections
359, 360 and 361 of this Code define abuse of office (zloupotreba
sluZbenog poloZaja), judicial malfeasance (kršenje
zakona od strane sudije) and official malfeasance (nesavestan
rad u sluZbi) as separate criminal offences.
C. 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 met 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 the previous Article
25.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
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 president of the
competent municipal court. It is true that the applicant addressed
his length complaint to the Supreme Court; however, in this way he
prolonged the time necessary for replying to his complaint. In the
Government's view, the applicant eventually obtained positive results
and should have used these aforementioned means to expedite the
proceedings more often. Further, the applicant had not brought a
separate civil suit under sections 199 and 200 of the Obligations Act
and Article 25 of the Constitution (see paragraphs 12 and 14 above);
nor had he filed a criminal complaint under sections 359, 360 or 361
of the Criminal Code (see paragraph 13 above).
The
applicant contested the effectiveness of these remedies.
The
Court recalls that it had already held that the remedies put forward
by the Government could not be deemed effective within the meaning of
Article 35 § 1 of the Convention (see, mutatis mutandis,
V.A.M. v. Serbia, cited above, §§ 85-88
and 119, 13 March 2007, and EVT Company v. Serbia,
no. 3102/05, §§ 39 and 41, 21 June 2007). It
sees no reason to depart from those findings in the present case and
concludes, therefore, that the Government's objection must be
rejected.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
1. Arguments of the parties
The
Government submitted that the case was factually and legally complex
and that the length of the proceedings was largely attributable to
the applicant's lawyer, who had failed to supply the court with all
the necessary information (see paragraph 6). As to the conduct of the
domestic authorities, the Government pointed out that the
first-instance court had split the claims of the many plaintiffs into
separate proceedings for reasons of efficiency and that, since then,
it has scheduled regular hearings in the case.
The
applicant contested these arguments, claiming that his case has been
pending for an unreasonably long time.
2. Period to be taken into account
The
Court notes that the proceedings started on 16 July 2001 when the
applicant filed his civil action. According to the information
available in the case file, they were still pending on the date of
adoption of the present judgment. Consequently, they have lasted over
six years and four months before two levels of jurisdiction.
However,
the period falling within the Court's jurisdiction began on 3 March
2004, when the Convention entered into force in respect of Serbia,
and has not yet ended. It has thus lasted over three years and eight
months before two court instances by the date of adoption of the
present judgment.
Nevertheless,
in order to determine the reasonableness of the length of time in
question, regard may also be had to the state of the case on 3 March
2004 (see, among other authorities, Styranowski v. Poland,
judgment of 30 October 1998, Reports of Judgments and
Decisions 1998 VIII, p. 3376, § 46). By that
date, the case had already been pending two years and eight months.
3. The Court's assessment
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or convincing argument
capable of persuading it to reach a different conclusion in the
present case. Having regard to its case-law on the subject, the Court
considers that the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained of the fact that, in Serbia, there was
no court to which application could be made to complain of the
excessive length of proceedings. He relied on Article 13 of the
Convention.
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is closely linked to that examined
above and must, therefore, likewise be declared admissible.
B. Merits
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier cases (see V.A.M. v.
Serbia, no. 39177/05, § 155, 13 March 2007) and
sees no reason to reach a different conclusion in the present case.
Accordingly,
the Court considers that there has been a violation of Article 13 of
the Convention on account of the lack of a remedy under domestic law
whereby the applicant could have obtained a ruling upholding his
right to have his case heard within a reasonable time, as set forth
in Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides as follows:
“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 non-pecuniary damages, without specifying an exact
amount.
The
Government contested this claim.
The Court considers that the applicant must have
sustained some non-pecuniary damage. Ruling on an equitable basis, it
awards him 1,200 euros (“EUR”) under this head.
B. Costs and expenses
The
applicant did not make any claim in this respect. Accordingly, the
Court is not required to make an award 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 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, which
sum is to be converted into the currency of the respondent State at
the rate applicable at the date of settlement, and free of any taxes
or charges 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
S. Dollé F. Tulkens
Registrar President
