AS TO THE RESTORATION OF
by Tomislav KATIĆ and Branislav KATIĆ
The European Court of Human Rights (Second Section), sitting on 7 July 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
Françoise Tulkens, President,
Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 2 April 2004,
Having regard to the Court’s decision of 4 March 2008,
Having regard to the subsequent submissions of the respondent Government as well as the applicants’ representative,
Having deliberated, decides as follows:
The applicants, Mr Tomislav Katić and Mr Branislav Katić, are Serbian nationals who were born in 1948 and 1953, respectively. They currently live in Markovac and are both represented before the Court by Mr M. Bogosavljević, a lawyer practicing in Velika Plana. The respondent Government were represented by their Agent, Mr S. Carić.
A. Facts that gave rise to the application
Both applicants are mentally disabled, which is why they were totally dependant on their father’s financial support for as long as he lived.
On 28 June 1983, however, the applicants’ father died in a traffic accident and the applicants were thus left with no income of their own.
In 1987 the applicants filed a civil claim against a major Serbian insurance company. They sought accrued and ongoing maintenance, together with statutory interest, recovery of their father’s funeral expenses and legal costs.
On 2 February 2005 the Social Care Centre (Centar za socijalni rad) in Velika Plana (“the Centre”) issued a decision depriving the applicants’ of their legal capacity (poslovne sposobnosti), and on 31 March 2005 it appointed Mr B.M. as their guardian.
Following seven remittals, on 14 October 2008 the Municipal Court ruled partly in favour of the applicants. In particular, the insurance company was ordered to pay each applicant 803,174 dinars (approximately 9,900 euros) together with statutory interest as of 1 July 2008, as well as a total of 943,587.50 dinars (approximately 11,650 euros) for legal costs.
On an unspecified date thereafter the applicants’ representative lodged an appeal on their behalf.
The proceedings would therefore appear to be still pending, notwithstanding the fact that the respondent company seems to have paid to the applicants the sums awarded at first instance.
B. Proceedings before the Court
On 19 June 2007 the President of the Chamber decided to invite the Government to submit their written observations in the case.
On 7 January 2008 the Court received the signed friendly settlement offer from the Government.
On 11 January 2008 the applicants’ representative accepted this offer.
On 4 March 2008 the Court struck the case out of its list of cases.
On 30 April 2008 the Government, as specified in the friendly settlement, paid the 6,000 euros to a bank account opened on behalf of the applicants, and the Centre appointed an interim guardian (privremeni staratelj) to manage the spending of this sum.
Despite the fact that the said bank account has been opened in the applicants’ name, they could not independently access their money in view of their legal status. Moreover, the special guardian in question is herself an employee of the Centre, and, as such, under its direct supervision.
By November 2008 only 33,000 dinars (approximately 400 euros) of the 6,000 euros were spent for the applicants’ subsistence.
The applicants are thus still living in very difficult conditions. They have a leaking roof, dangerously inadequate electric installations, and no functional home appliances. It seems that certain efforts were made towards repairing the said installations, but that ultimately the Centre had advised the applicants to deal with the situation themselves.
It would appear that the applicants’ permanent guardian requested the Centre to appoint the applicants’ godfather as their guardian in charge of the management of the 6,000 euros in question, but that this request has been ignored.
On 10 June 2008 and 25 July 2008 the applicants’ representative informed the Court about the initial problems with the settlement.
On 4 November 2008 the respondent Government was asked to respond to the applicants’ claims.
On 1 December 2008 the Government provided its observations. They informed the Court about the developments in the impugned civil case, but failed to respond to the issue of the Centre’s, as well as the special guardian’s, alleged inactivity.
On 14 January 2009 the applicants’ representative provided additional written comments.
The applicants invoked Articles 6 § 1, 13 and 14 of the Convention, as well as Article 1 of Protocol No. 1. In substance, however, they complained about the overall fairness and length of the above proceedings.
The Court recalls that should a respondent State fail to comply with the terms of a friendly settlement in a case which has been struck out, the application may be restored to the Court’s list of cases in accordance with Article 37 § 2 of the Convention (see Aleksentseva and 28 Others v. Russia (dec.), no. 75025/01, ECHR, 23 March 2006).
As regards the present case, the Court notes the respondent Government’s timely transfer of the settlement sum to the applicants’ account. It further notes that, in different circumstances such a transfer would generally satisfy the terms of a friendly settlement. In the present case, however, this alone cannot suffice. In particular, given the applicants’ disability and their legal status, the fact that by November 2008 only 400 euros have been spent for their subsistence, and, lastly, that their housing situation remains very difficult, it seems that the special guardian and/or the Centre have indeed failed to make sure that the settlement sum was being used in the applicants’ best interest.
The Court therefore considers it justifiable, pursuant to Article 37 § 2 of the Convention, to restore the present case to its list of cases and adjourn the examination of the applicants’ complaints.
For these reasons, the Court unanimously,
Decides to restore the application to its list of cases;
Decides to adjourn the examination of the applicants’ complaints and re-started friendly settlement negotiations;
Decides to grant priority to the case.
Elens-Passos Françoise Tulkens
Deputy Section Registrar President