European Court of Human Rights

SECOND SECTION

DECISION

Application no. 25377/08
by Nusret KARIŠIK
against Serbia

The European Court of Human Rights (Second Section), sitting on 15 December 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 29 April 2008,

Having regard to the declaration submitted by the respondent Government on 10 September 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nusret Karišik, is a Serbian national who was born in 1942 and lives in Novi Pazar. He was represented before the Court by Ms M. Popović, a lawyer practising in Novi Pazar. 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.

On 27 March 2001 the applicant filed a property related civil suit against three private parties before the Municipal Court in Novi Pazar.

The Municipal Court scheduled about fifteen hearings in the case, many of which had not taken place, due to the court’s failure to duly deliver summonses to the respondents.

On 19 March 2009 the Constitutional Court found that the applicant’s right to a hearing within a reasonable time had been violated. However, the applicant has not been awarded any compensation for the delay in question.

It would appear that the case is still pending at first instance.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings.

Under Article 1 of Protocol No. 1, he further complained that his property rights have been violated.

THE LAW

The application had been communicated to the Government under Article 6 § 1 of the Convention, regarding the procedural delay in the applicant’s property suit.

By letter dated 10 September 2009, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the applicant. 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 applicant’s right under Article 6 paragraph 1 [...] of the Convention and offer to pay to the applicant, Mr Nusret Karišik the amount of EUR 3,000 ex gratia in respect of the application registered under no. 25377/08 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 applicant. 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 submission dated 9 October 2009 the applicant informed the Court that he could not accept the unilateral declaration, as the damage he 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 Article 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 this provision it has awarded just satisfaction, the amount of which has depended on the particular features of the case.

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 nine 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 applicant’s domestic claim or, indeed, his 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 applicant also complained, under Article 1 of Protocol No. 1 about the violation of his property rights.

Given that the proceedings at issue are apparently still pending, the Court finds that this complaint is premature and, as such, inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 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 Tulkens
Registrar President