4 separate applications against Serbia,
1. no. 5958/07 BENJOCKI and Others,
2. no. 6561/07 Ivanka RADIN,
3. no. 8093/07 Laslo KIŠ,
4. no. 9162/07 Sandor NJERGEŠ,
The European Court of Human Rights (Second Section), sitting on 15 December 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,
Having regard to the above applications lodged on 26 January 2007, 26 January 2007, 2 February 2007 and 30 January 2007, respectively,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the parties’ submission,
Having deliberated, decides as follows:
The applicants, Ms Nada Benjocki, born in 1952, Ms Kristina Benjocki, born in 1984, and Mr Vladimir Benjocki, born in 1977 (“the applicants in the first case”), Ms Ivanka Radin, born in 1960 (“the applicant in the second case”), Mr Laslo Kiš, born in 1955 (“the applicant in the third case”), and Mr Šandor Njergeš, born in 1979 (“the applicant in the fourth case”), are all Serbian nationals and currently live in Zrenjanin, except for the applicant in the fourth case who lives in MuZlja.
The applicants were also all represented before the Court by Mr D. Radin, a licensed lawyer practising in Zrenjanin. 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.
A. As regards the applicants in the first case
On 10 January 1997 the applicants filed a property-related claim before the Municipal Court (Opštinski sud) in Zrenjanin.
Following two remittals, in 2002 and 2006, as well as two hearings held on 30 April 2009 and 3 September 2009, respectively, their case is apparently still pending at first instance.
B. As regards the applicant in the second case
On 12 February 2001 the applicant filed a claim for damages with the Municipal Court in Zrenjanin.
On 30 December 2008 the Municipal Court ruled in favour of the applicant, and by 3 February 2009 this judgment became final.
C. As regards the applicant in the third case
On 8 April 1997 the applicant filed a civil claim with the Municipal Court in Zrenjanin, seeking payment of a debt owed by a third party.
Following a remittal in 2005, on 28 November 2007 the said court ruled partly in favour of the applicant.
On 26 June 2008 the District Court (OkruZni sud) in Zrenjanin upheld this judgement on appeal.
On 23 October 2008 the Supreme Court (Vrhovni sud Srbije) rejected the applicant’s appeal on points of law (revizija) as inadmissible.
D. As regards the applicant in the fourth case
On 27 January 2003 the applicant brought a personal injury suit before the Municipal Court in Zrenjanin.
Following two remittals, in 2005 and 2007, on 5 September 2007 the said court ruled in his favour.
On 17 December 2007 the District Court in Zrenjanin partly overturned this judgment.
On 27 August 2008 the Supreme Court rejected the parties’ respective appeals on points of law.
E. Other relevant facts
On 26 June 2008 “Zrenjaninske novine”, a local daily newspaper, published an article titled: “Trials lasting more than a decade? [Suđenja duZa od decenije?]”. In this piece the journalist described his interview with Mr D. Radin, the applicants’ legal representative. In particular, Mr Radin was reported to have stated that he had brought approximately forty cases to the Court concerning the excessive length of lawsuits in Serbia, as well as the absence of an effective domestic remedy in this regard. He further revealed, inter alia, the names of the applicants in the present four applications, set out a brief factual summary of their respective cases, and disclosed the specific amounts proposed by the Court’s Registry with a view to securing a friendly settlement.
On 13 July 2008 “Dnevnik”, a regional daily newspaper, posted the same article on its internet site. On 14 July 2008 the said newspaper published this piece in its printed edition under the title: “The State pays, with no right to appeal [DrZava plaća, bez prava na Zalbu]”.
Under Article 6 § 1 of the Convention, all applicants complained about the length of their proceedings, respectively.
The applicant in the second case, as well as the applicant in the third case, further complained about the overall fairness of their proceedings.
A. Joinder of the applications
The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
B. The Government’s request concerning the alleged abuse of the right of petition
By letter of 5 June 2008, the applicants were informed of the Court’s decision to communicate their respective cases to the Government in accordance with Article 29 § 3 of the Convention (this letter, as well as all subsequent letters sent by the Court, was in English whilst the applicants themselves were authorised to continue using Serbian).
On the same date the Court provided the parties with the declarations prepared by the Registry, aimed at securing a friendly settlement of their cases.
On 13 June 2008 the Court received the friendly settlement declarations signed by the applicants’ representative.
By letter of 18 July 2008, the Government submitted a copy of the article published in “Zrenjaninske novine” on 26 June 2008 (see under “E. Other relevant facts” above). They further noted that Mr Radin had thus seriously breached the rules of confidentiality and “misused” the Court’s proceedings “in order to promote himself”. In conclusion, the Government invited the Court to “strike out” the applications in question or “exclude” the applicants’ representative “from any further proceedings”.
On 25 July 2008 the Court received the friendly settlement declarations signed by the Government. In the letter attached to these declarations, the Government reaffirmed their views expressed in their prior submission, but then went on to propose, in the alternative, that the applications could also be struck out on the basis of the declarations signed by the parties.
By letter of 27 August 2008, the applicants’ counsel agreed with the Government’s alternative proposal. As regards their initial motion, however, he informed the Court that he could not have concealed anything from the journalist who had already heard rumours “coming from the applicants” in respect of the Registry’s friendly settlement proposals. The article in question had also had a very positive impact, given that the domestic proceedings at issue had since been expedited. The applicants’ representative further argued that he had unintentionally breached the rules of confidentiality, as at the relevant time he had not been sufficiently familiar with the Convention or the Rules of Court, and the applicants themselves could not have afforded to translate the Court’s letter of 5 June 2008 into Serbian. Lastly, the applicant’s lawyer requested the Registry to provide him with the Rules of Court, as well as a Code of Conduct, which he promised to abide by in the future, whilst acting on behalf of numerous other applicants in cases currently pending before the Court.
On 10 February 2009 the applicants’ counsel reaffirmed his views expressed earlier. He further stated that, unlike the Government who could always rely on their “impoverished” tax payers, the applicants could not afford to have the Court’s letters officially translated. It was also a widely held opinion in domestic legal circles that the Government would not abide by the Court’s decisions or honour their financial obligations stemming from signed friendly settlement declarations.
On 29 May 2009 the Government reaffirmed their views expressed on 18 July 2008. They added that the applicant’s representative was a lawyer and should, as such, have been aware of the confidentiality requirement. Instead of advancing human rights, however, he had clearly chosen to promote his own practice in the local press. The Government concluded by noting that some of the statements contained in the applicants’ submission of 10 February 2009 were both untrue and gratuitously derisive, implying that this alone may be considered abusive.
The Court recalls that, according to Article 38 § 2 of the Convention, friendly settlement negotiations are confidential. Rule 62 § 1 of the Rules of Court reiterates this principle and Rule 62 § 2 thereof stipulates that no written or oral communication and no offer or concession made within the friendly settlement framework may be referred to or relied on in contentious proceedings. Moreover, it cannot be excluded that a breach of the confidentiality principle could, in certain circumstances, justify the conclusion that an application is inadmissible on the ground of an abuse of the right of petition (see, inter alia, Hadrabová v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; Popov v. Moldova, (no. 1), no. 74153/01, § 48, 18 January 2005).
The Court further recalls that, exceptionally, the persistent use of insulting or provocative language by an applicant against the respondent Government may also be considered an abuse of the right of petition (see, for example, Duringer and Grunge v. France (dec.), nos. 61164/00 and 18589/02, ECHR 2003-II, as well as Stamoulakatos v. the United Kingdom, no. 27567/95, Commission decision of 9 April 1997; L.R. v. Austria, cited above; X. v. Germany, no. 2724/66, Commission decision of 10 February 1967; X. and Y. v. Germany, no. 2625/65, Commission decision of 30 September 1968, Reports 28, pp. 26-42).
Finally, under Rule 44D of its Rules of Court, if the representative of a party makes abusive, frivolous, vexatious, misleading or prolix submissions, the Court may exclude that representative from the proceedings, refuse to accept all or part of the submissions or make any other order which it deems appropriate to make, without prejudice to Article 35 § 3 of the Convention.
Turning to the applications here at issue and in view of the above, the Court notes that: (a) the applicants had discussed the Registry’s friendly settlement proposals in public and their representative had subsequently disclosed to the press the details thereof; (b) the information note in Serbian, enclosed together with the Court’s letter of 5 June 2008, had made it clear that the nature of all friendly settlement negotiations was strictly confidential; (c) the applicants and their representative, hence, should have complied with this requirement; and (d) they have, ultimately, failed to advance any convincing justification for not so doing. Such conduct therefore amounts to a breach of the rule of confidentiality, which must also be considered to be an abuse of the right of petition. In these circumstances, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject, on this basis alone, all four applications, in their entirety, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares the applications inadmissible.
Sally Dollé F. Tulkens