CASE OF MOLNAR GABOR v. SERBIA
(Application no. 22762/05)
8 December 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 Molnar Gabor v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Relevant background to the applicant's case
B. Relevant facts of the applicant's case
II. RELEVANT DOMESTIC LAW
A. Act on the Settlement of Obligations Arising from the Citizens' Foreign Currency Savings (Zakon o izmirenju obaveza po osnovu devizne štednje građana; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 59/98, 44/99 and 53/01)
B. Act on the Settlement of the Public Debt of the Federal Republic of Yugoslavia Arising from the Citizens' Foreign Currency Savings (Zakon o regulisanju javnog duga Savezne Republike Jugoslavije po osnovu devizne štednje građana; published in OG FRY no. 36/02)
D. Statutory Interest Act (Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01)
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The Court considers that these complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his 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.”
2. Exhaustion of domestic remedies
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Tulkens, Popović and Karakaş is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES TULKENS, POPOVIĆ AND KARAKAŞ
Much to our regret we could not follow the majority of our colleagues in this case, for the sake of following reasons.
In the present case the respondent State failed to execute a final judgment given in the applicant's favour. We are of opinion that the reason invoked by the State for such an interference with an individual's rights is not acceptable. It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. We do admit that a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Art. 6.1 of the Convention (see Burdov v. Russia, ECHR 2002-III paragraph 35, and Immobiliare Saffi v. Italy [GC] ECHR 1999-V paragraph 74).
We would also like to underline the fact that the applicant's situation in this case is significantly different from the presumed majority of other savers, whose savings had also been transformed into a public debt, but who have never obtained a final judgment ordering release of their deposits. That is why we consider that it was not justified for the authorities to intervene in the execution of a final judgment rendered at the domestic level, although it was done in a manner permitted by the relevant domestic legislation. For that reason we conclude that the right of access to court as protected by Art. 6. of the Convention was impaired (see Jeličić v. Bosnia and Herzegovina, ECHR 2006- paragraphs 38-46).
Our conclusion is that the impossibility of obtaining the execution of the final judgment at issue constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Art. 1 First Protocol (see Burdov, paragraph 40 and Jeličić, paragraphs 47-49).
As to the respondent Government's objection to the Court's jurisdiction ratione temporis we are of opinion that all facts fall within the Court's jurisdiction if they are only extensions of an already existing situation at the moment of the ratification of the Convention by a member state (see Yagci and Sargin v. Turkey, Judgments and Decisions 1995, A 319 paragraph 40; Almeida Garret, Mascarenhas Falcao and Others v. Portugal, ECHR 2000-I paragraph 43). It is to be noted that the applicant in the present case has been unable to have his judgment legally enforced as of 1998, which situation has continued to this date.
Last but not least we find it necessary to stress the reason for maintaining of the coherence of the Court's case-law. We consider the ruling in Jeličić to be binding in this case as a leading precedent. Although the Court may depart from its previous rulings the Court is entitled to it only “if it is persuaded that there were cogent reasons for doing so” (see Cossey v. United Kingdom, Judgments and Decisions 1990, A 184 paragraph 35; Chapman v. United Kingdom, ECHR 2001-I paragraph 70; Christine Goodwin v. United Kingdom, ECHR 2002-I paragraph 74; Mamatkulov and Askarov v. Turkey, ECHR 2005- paragraph 121). In the present judgment we cannot find any reference to cogent reasons which led our colleagues to depart from the Court's previous ruling in a case which was identical to the present one.
1 At the time in question Serbia had been suffering from record levels of inflation.