European Court of Human Rights

SECOND SECTION

DECISION

Application no. 17234/04
by Goran ZIVKOVIĆ
against Serbia

The European Court of Human Rights (Second Section), sitting on 4 November 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 29 April 2004,

Having regard to the declaration submitted by the respondent Government on 1 July 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply thereto,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Goran Zivković, is a Serbian national who was born in 1960 and lives in Belgrade. He was represented before the Court by Mr M. Bogosavljević, a lawyer practising in Velika Plana. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  First set of proceedings

On 26 December 1996 K.M., the applicant’s grandmother, filed a civil claim with the Second Municipal Court (Drugi opštinski sud) in Belgrade against Z.M. and N.N., seeking termination of a “life-long support contract” as well as annulment of a subsequent purchase agreement (tuZba radi raskida ugovora o doZivotnom izdrZavanju i poništenja ugovora o kupoprodaji).

In 1999 the case was transferred to the Municipal Court (Opštinski sud) in Zabari.

Following K.M.’s death on 29 October 1999, this court formally recognised the applicant as a plaintiff in his own right.

The Municipal Court in Zabari appears to have held several hearings from 2000 to 2002.

The hearings scheduled for 18 November 2005, 30 January 2006, 6 September 2006, 27 November 2006, 21 May 2006 and 31 May 2006, however, were all adjourned, while the hearings scheduled for 17 February 2005 and 22 February 2007 were both duly held.

The most recent hearing appears to have been scheduled for September 2007.

2.  Second set of proceedings

On 20 March 1997 K.M. filed an action with the Second Municipal Court in Belgrade, seeking compensation for lost rent and access to a particular flat.

On an unspecified date the case was transferred to the Municipal Court (Opštinski sud) in Svilajnac.

Following a remittal prior to 3 March 2004, on 22 June 2004 the Municipal Court in Svilajnac decided to stay these proceedings pending the outcome of the first set of proceedings, which would appear to have been related to the issue in this case.

COMPLAINTS

The applicant complained about the excessive length of the above proceedings, as well as their overall fairness and impartiality.

THE LAW

A.  Complaints concerning the length of proceedings and the absence of an effective domestic remedy

By letter dated 1 July 2008, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving these issues raised by the application.

They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration, signed by the Government’s Agent, provided as follows:

“I declare that the Government of the Republic of Serbia is ready to accept that there had been a violation of the applicant’s rights under Article 6 paragraph 1 and offer to pay the applicant, Mr Goran Zivković, the amount of EUR 4,500 ex gratia in respect of the application registered under no. 17234/04 before the European Court of Human Rights.

This sum, which covers any pecuniary and non-pecuniary damage as well as costs, shall be paid in dinar counter-value, free of any taxes that may be applicable and to an account ... [specified] ... by the applicant. The sum shall be payable within three months from the date of delivery of the judgment by the Court. This payment will constitute the final resolution of the case.

The Government regret the occurrence of the actions which have led to the bringing of the present application.”

In a letter received by the Court on 8 September 2008 the applicant expressed the view that a strike-out of his case would not be justified.

The Court recalls that Article 37 of the Convention provides that it may, at any stage of the proceedings, decide to strike an application out of its list of cases. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if it finds that “it is no longer justified to continue the examination of the application”, and it has done so in the past on the basis of certain unilateral declarations by respondent Governments even if the applicants had maintained their cases.

To this end, the Court will carefully examine the declaration made by the Government in the present case in the light of the principles emerging from its case-law (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).

The Court notes that it has specified in a number of cases the nature and extent of the obligations which arise for a State Party under Articles 6 and 13 of the Convention concerning the right to a hearing within a reasonable time (see, among many others, Cocchiarella v. Italy [GC], no. 64886/01, ECHR 2006; Kudła v. Poland [GC], no. 30210/96, ECHR 2000 XI; Ilić v. Serbia, no. 30132/04, 9 October 2007). Where the Court has found a breach of these Articles it has awarded just satisfaction, the amount of which has depended on the particular features of the case.

Having regard to the nature of the concessions contained in the Government’s unilateral declaration in the present case, as well as the amount of compensation proposed (which can be considered reasonable in comparison with the Court’s awards in similar cases, when account is taken of the fact that only three years and eleven months of the impugned proceedings fall within the Court’s competence ratione temporis, Serbia having ratified the Convention on 3 March 2004), the Court finds that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c) of the Convention; see, for the relevant principles, Tahsin Acar, cited above; Haran v. Turkey, no. 25754/94, judgment of 26 March 2002).

The Court is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, it should be struck out of the list.

Since the impugned proceedings appear to be still pending, it is to be noted that the Court’s strike-out decision is without prejudice to the merits of the applicant’s domestic claim or, indeed, his ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.

Finally, the Court recalls that, in accordance with Article 46 § 2 of the Convention, the Committee of Ministers is competent to supervise the execution of its final judgments only. Should the respondent State, however, fail to comply with the terms of its unilateral declaration given in the present case, the application could be restored to the Court’s list of cases pursuant to Article 37 § 2 of the Convention (see Aleksentseva and 28 Others v. Russia (dec.), no. 75025/01, ECHR, 23 March 2006).

B.  Complaints concerning the fairness and impartiality of the impugned proceedings

Given that the proceedings at issue are apparently still pending, the Court finds that these complaints are premature and, as such, inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the complaints communicated under Articles 6 § 1 (concerning the length of proceedings) and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to these complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President