by Zaviša JANJIĆ and Gordana JANJIĆ
The European Court of Human Rights (Second Section), sitting on 29 September 2009 as a Chamber composed of:
Kristina Pardalos, judges,
Ireneu Cabral Barreto,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 20 July 2006,
Having regard to the declaration submitted by the respondent Government on 4 May 2009 requesting the Court to strike the application out of its list of cases and the applicants’ reply thereto,
Having deliberated, decides as follows:
The applicants, Mr Zaviša Janjić and Ms Gordana Janjić, are Serbian nationals who were born in 1949 and 1948, respectively, and live in Bethesda, the United States of America. They were represented before the Court by Mr Z. Zivanović, a lawyer practising in Belgrade. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
The facts of the case, as submitted by the parties, may be summarised as follows.
By 1998 the applicants and a construction company, A, concluded a contract whereby the former were obliged to give their current flat, as well as an additional sum of money, to the latter and the latter, in return, promised to provide the applicants with a larger flat.
By 2 October 1998 the applicants complied with their contractual obligations.
As it subsequently transpired, however, in 1996 company B, with which company A had had a joint venture, had already sold the larger flat to company C which, in turn, had resold it to a third private party.
Consequently, company A has never provided any flat or compensation to the applicants.
Thus, the applicants filed three different lawsuits against the companies in question, on 27 March 2001, 24 December 2002, and 10 December 2004, respectively, in an attempt to be provided either with a flat or appropriate compensation. Two sets of proceedings are pending before the Second Municipal Court in Belgrade, and the third set of proceedings is pending before the Third Municipal Court in Belgrade.
However, since there appears to be a series of other civil proceedings ongoing between the companies in question, the applicants’ three sets of proceedings have been suspended by the District Court in Belgrade pending the outcome of the said proceedings between the companies. The applicants’ suits were suspended on 23 May 2005, 29 June 2005 and 18 April 2007, respectively, and there have been no developments in any of the cases since.
Under Articles 6 and 14 of the Convention, as well as Article 1 of Protocol No. 1, the applicants complained about the length and fairness of their civil suits, the violation of their property rights, as well as of being discriminated against.
The application had been communicated to the Government under Article 6 § 1 of the Convention, regarding the procedural delay in the applicants’ three sets of proceedings.
By letter dated 4 May 2009, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicants. 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 are ready to accept that there had been a violation of the applicants’ rights under Article 6 paragraph 1 of the Convention and offer to pay to the applicants, Mr Zaviša Janjić and Ms Gordana Janjić jointly, the amount of EUR 2,600 ex gratia in respect of the application registered under no. 31149/06 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 applicants. The sum shall be payable within three months from the date of delivery of the [decision] 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 later submission dated 28 April 2009 the applicants informed the Court that they could not accept the unilateral declaration, as the damage they suffered had been much greater.
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 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.
The Court considers that all three sets of proceedings in the present case relate to the same issue, and will therefore consider the period as a whole for the purposes of its Article 6 § 1 analysis, starting with 27 March 2001 (see, mutatis mutandis, Cravcenco v. Moldova, no. 13012/02, § 49, 15 January 2008).
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 five years and six 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 with this examination (Article 37 § 1 in fine). Nevertheless, in the particular circumstances of the case, the Court considers that the State should still ensure that all necessary steps are taken to allow the proceedings to be concluded as speedily as possible, taking into account the requirements of the proper administration of justice.
Accordingly, this part of the application 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 applicants’ domestic claim or, indeed, their ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.
Finally, the Court recalls that, should the respondent State, fail to comply with the terms of its unilateral declaration in the present case, the application could be restored to the Court’s list pursuant to Article 37 § 2 of the Convention (see Aleksentseva and 28 Others v. Russia (dec.), no. 75025/01, ECHR, 23 March 2006).
The applicants also complained, under Article 6 § 1 of the Convention, and Article 1 of Protocol No. 1 about the overall fairness of their civil proceedings, the violation of their property rights, as well as of being discriminated against.
Given that the proceedings at issue are apparently still pending, the Court finds that the complaints of fairness and violation of the applicants’ property are premature and, as such, inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
The Court has also examined the applicants’ complaint of discrimination, under Article 14 of the Convention. However, there is nothing in the case file which might disclose any appearance of a violation of the Convention at the present stage. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike out of its list of cases, in accordance with Article 37 § 1 (c) of the Convention, that part of the application which concerns the declaration;
Declares the remainder of the application inadmissible.
Sally Dollé Françoise