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MILICA POPOVIC v. SERBIA - 33888/05 [2009] ECHR 1923 (24 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1923.html
Cite as:
[2009] ECHR 1923
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SECOND
SECTION
CASE OF МILICA
POPOVIĆ v.
SERBIA
(Application
no. 33888/05)
JUDGMENT
STRASBOURG
24 November 2009
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 Popović v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Vladimiro Zagrebelsky,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 3 November,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 33888/05) against the State Union of Serbia and
Montenegro, 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, Ms Milica
Popović (“the applicant”), on 12 September 2005.
As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
The
applicant was represented by Mr S. Stojanović, a lawyer
practicing in Belgrade. The Serbian Government (“the
Government”) were represented by their Agent, Mr S. Carić.
On
13 July 2006 the President of the Second Section decided to give
notice of the application to the Government. Applying Article 29 §
3 of the Convention, it was also decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On
23 October 1984 the Second Municipal Court (Drugi opštinski
sud) in Belgrade issued a judgment stating, inter alia,
that the applicant was the owner of 36% of a flat and a garage
located in Belgrade. The remaining 64% was determined to be the
property of D.S., the applicant's former partner. On 25 June
1985 this judgment became final.
In
a separate set of proceedings, on 30 March 1987, the Fourth Municipal
Court (Četvrti opštinski sud) in Belgrade ruled
that the physical division of the said real estate was impossible,
that a public auction should be held instead, and that the proceeds
thereof should be divided among the former partners accordingly.
On
16 November 1987 this decision became final.
On
18 May 1990 the Fourth Municipal Court in Belgrade (hereinafter “the
enforcement court”) accepted the applicant's request and
ordered the enforcement of the above decision dated 30 March 1987.
At
the hearing held on 2 September 1996 the applicant offered to buy the
64% of the flat in question owned by D.S. and thereby become its sole
owner. On the same date the enforcement court accepted this offer,
“awarded” the flat (“dosudio nepokretnosi”)
to the applicant and set the price at 25,126.22 Dinars. D.S.
subsequently filed an appeal against this decision.
Following
a remittal, on 26 April 2002 the District Court upheld the decision
of the enforcement court and it thereby became final.
On
3 March 2004 the Supreme Court accepted the request for the
protection of legality (zahtev za zaštitu zakonitosti)
filed by the Chief Public Prosecutor personally. It quashed the lower
courts' decisions and remitted the case to the enforcement court for
reconsideration. It would appear that the Supreme Court's decision
was served on the applicant by 12 January 2005.
Following
their separation in 1978, D.S. retained sole possession of the flat
in question while the applicant appears to have had no access since
then.
On
20 October 2006 the applicant was given back the nominal value of the
amount paid pursuant to the decision of 2 September 1996 (see
paragraph 9 above).
On
2 September 2007 the applicant died.
On
21 September 2007 the Fourth Municipal Court suspended the
proceedings pending the determination of the applicant's legal heirs.
On
10 October 2008 the applicant's son, as her only legal heir,
requested the continuation of the proceedings.
It
would appear that there have been no further developments in the case
since then.
II. RELEVANT DOMESTIC LAW
A. Enforcement Procedure Act (Zakon
o izvršnom postupku; Official Gazette of Federal
Republic of Yugoslavia nos. 28/00, 73/00 and 71/01)
Article
4 provides that enforcement proceedings are to be conducted with
particular urgency.
Articles
147-160 set out the details as regards the auctioning of real estate.
B. Inheritance Act 1995 (Zakon o nasleđivanju,
published in the Official Gazette of the Republic of Serbia nos.
46/95 and 101/03)
Article
212 § 1 provides that the deceased's estate shall be transferred
ex lege to the legal heirs at the moment of death.
THE LAW
I. THE APPLICANT'S DEATH
On
2 June 2007 the applicant died.
On
20 March 2008 the First Municipal Court (Prvi opštinski
sud) in Belgrade declared the applicant's son, Mr Vojko Mišković,
to be her sole legal heir.
On
23 April 2009 Mr Mišković informed the Court that he
wished to maintain the proceedings lodged by his mother.
Given
the relevant domestic legislation (see paragraph 20 above), as well
as the fact that he has a “definite pecuniary interest”
in the enforcement proceedings at issue, the Court finds, without
prejudice to the Government's other preliminary objections, that Mr
Mišković has standing to proceed in his mother's stead
(see, mutatis mutandis, Marčić and Others v.
Serbia, no. 17556/05, § 35-40, 30 October 2007).
Mr
Mišković shall, therefore, himself be referred to as “the
applicant” hereinafter.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
Under
Article 1 of Protocol No. 1, the applicant complained about the
non-execution of the Fourth Municipal Court's final decision of
30 March 1987.
Article
1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his [or her] possessions. No one shall be
deprived of his [or her] possessions except in the public interest
and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
The
Government raised various objections to the admissibility of this
matter. However, the Court has rejected similar objections in many
previous cases (see, for example, EVT Company v. Serbia, no.
3102/05, §§ 39-42, 21 June 2007). It finds no
particular circumstances in the instant case which would require a
departure from this jurisprudence. It therefore declares the
application admissible.
B. Merits
The
applicant reaffirmed that his property rights had been violated while
the Government maintained that there had been no violation of Article
1 of Protocol No. 1.
The
Court has frequently found that, in the context of Article 1 of
Protocol No. 1, the States' positive obligations may require that
measures be taken where necessary to protect the right of property,
particularly where there is a direct link between the measures which
an applicant may legitimately expect the authorities to undertake and
the effective enjoyment of his or her possessions (see, for example,
Burdov v. Russia, no. 59498/00, §§ 39-42, ECHR
2002 III).
It
is thus the State's responsibility to make use of all available legal
means at its disposal in order to enforce a final court decision,
notwithstanding the fact that it has been issued against a private
party, as well as to make sure that all relevant domestic procedures
are duly complied with (see, mutatis mutandis, Marčić
and Others v. Serbia, cited above, § 56).
Turning
to the present case, the Court first notes that the ongoing inability
of the domestic authorities to auction the flat in question amounts
to an interference with the applicant's property rights. Secondly,
the decision at issue had become final by 16 November 1987, and its
enforcement had been ordered on 18 May 1990. Thirdly, Protocol No. 1
had entered into force in respect of Serbia on 3 March 2004, meaning
that the non-enforcement at issue has been within the Court's
competence ratione temporis for a period of five years and
eight months, some fourteen years having already elapsed before that
date. Lastly, there is nothing to suggest that the auction should
have been anything but straightforward.
In
view of the foregoing, the Court finds that the Serbian authorities
have failed to fulfil their positive obligation, within the meaning
of Article 1 of Protocol No. 1, to enforce the decision of 30 March
1987. There has, accordingly, been a violation of the said provision.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained, under Article 13 of the Convention,
that he has had no means to expedite the proceedings in question or
obtain compensation for the past delay.
Article
13 reads 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.”
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that it
cannot be declared inadmissible on any other ground. The complaint
must therefore be declared admissible.
Having
regard to its findings in respect of Article 1 of Protocol No. 1 and
its prior judgments on the issue (see, mutatis mutandis,
Cvetković v. Serbia, no. 17271/04, § 59, 10 June
2008), the Court considers that, at the
relevant time, there was indeed no effective remedy under domestic
law for the applicant's complaint about the non-enforcement in
question. There has, accordingly, been a violation of Article 13
of the Convention taken together with Article 1 of Protocol No. 1.
IV. OTHER ALLEGED VIOLATIONS
Under
Article 6 § 1 of the Convention, the applicant also complained
about the Supreme Court's decision of 3 March 2004.
The
Court observes that this decision was served on the applicant by 12
January 2005 while the application itself was introduced on
12 September 2005, more than six months later. It follows that
this complaint has been lodged out of time, and must therefore be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
Finally,
under Article 6 § 1 of the Convention, the applicant, again,
complained about the non-enforcement of the Fourth Municipal Court's
decision of 30 March 1987.
Having
regard to its finding in respect of Article 1 of Protocol No. 1
above, the Court declares the applicant's identical complaint made
under Article 6 § 1 admissible, but does not find it necessary
to examine it separately on the merits under this provision (see,
mutatis mutandis, Davidescu v. Romania, no. 2252/02,
§ 57, 16 November 2006).
IV. 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 147,350 Euros (EUR) in respect of the
pecuniary and the non-pecuniary damage suffered.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However,
the Court considers that the applicant must have suffered some
non-pecuniary damage as a result of the non-enforcement at issue.
Accordingly, taking into account the circumstances of the case and
making its assessment on an equitable basis, the Court awards the
applicant EUR 1,800 under this head.
It must, further, be noted that a judgment in which
the Court finds a violation of the Convention or of its Protocols
imposes on the respondent State a legal obligation not just to pay
those concerned the sums awarded by way of just satisfaction, but
also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted
in its domestic legal order to put an end to the violation found (see
Apostol v. Georgia, no. 40765/02, § 71,
ECHR 2006).
Having
regard to its finding in the instant case, the Court considers that
the respondent State must secure, by appropriate means, the
enforcement of the Fourth Municipal Court's final decision of 30
March 1987 (see, among many other authorities, Marčić
and Others v. Serbia, cited above, § 65).
B. Costs and expenses
The
applicant claimed EUR 41,092 for the costs and expenses incurred
before the domestic courts and EUR 2,000 for those incurred before
the Court.
The Government contested these claims.
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
reasonable as to their quantum. In the present case, regard being had
to the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
but considers it reasonable to award the sum of EUR 600 for the
proceedings before the Court.
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 complaint concerning the
non-enforcement of the final domestic decision admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
1 of Protocol No. 1;
Holds that there has been a violation of Article
13 of the Convention taken together with Article 1 of Protocol No. 1;
Holds that it is not necessary to examine
separately the non-enforcement complaint under Article 6 § 1 of
the Convention;
Holds
(a) that
the respondent State shall ensure, by appropriate means, within three
months from the date on which this judgment becomes final, in
accordance with Article 44 § 2 of the Convention,
the enforcement of the Fourth Municipal Court's final decision of 30
March 1987;
(b) that
the respondent State is to pay the applicant,
within the same three month period, the following sums:
(i)
EUR 1,800 (one thousand eight hundred euros), plus any tax that may
be chargeable, for the non-pecuniary damage suffered, and
(ii)
EUR 600 (six hundred euros), plus any tax that may be chargeable to
the applicant for costs and expenses;
(c) 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 24 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
