European Court of Human Rights

SECOND SECTION

DECISION

Application no. 28339/06
by Radmila PEŠIKAN
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 4 July 2006,

Having regard to the declaration submitted by the respondent Government on 7 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, Ms Radmila Pešikan, is a Serbian national who was born in 1948 and lives in Novi Sad. 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 13 September 2001 the applicant was dismissed by her employer.

On 28 September 2001 the applicant filed a claim with the Municipal Court in Novi Sad, seeking reinstatement as well as salary arrears (hereinafter: “the main reinstatement suit”).

On 3 June 2008 the Municipal Court ruled against the applicant.

On 4 December 2008 and 18 June 2009 the District Court and the Supreme Court, respectively, upheld the judgment of 3 June 2008.

The applicant also instituted a number of administrative and four separate sets of judicial proceedings against her employer, seeking compensation regarding an eviction, the annulment of her suspension, interim reinstatement and better working conditions.

The first three sets of proceedings ended by 18 January 2007, 29 November 2007 and 25 September 2008, respectively.

The civil suit brought in respect of working conditions was stayed on 24 April 2006, pending the outcome of another case. However, when this other case was concluded, the applicant did not request the resumption of the former suit.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings upon her main reinstatement suit.

She further complained about the outcome of all the other proceedings she instituted.

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 proceedings regarding the main reinstatement suit.

By letter dated 7 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 applicants’ rights under Article 6 paragraph 1 of the Convention and offer to pay to the applicant, Ms Radmila Pešikan the amount of EUR 1,400 ex gratia in respect of the application registered under no. 28339/06 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 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 two later submissions dated 2 July 2009 and 7 August 2009 the applicant informed the Court that she could not accept the unilateral declaration, as the damage she suffered had been much greater.

The Court recalls that Article 37 § 1 (c) of the Convention 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 that 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, the amount of compensation proposed (which can be considered reasonable in comparison with the Court’s awards in similar cases), as well as the fact that the main reinstatement suit has finally been determined on 18 June 2009 (after a delay of five years and three months before three instances), the Court finds that it is no longer justified to continue the examination of this complaint (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).

Accordingly, this part of the application should be struck out of the list.

Finally, the Court recalls that, in accordance with Article 46 § 2 of the Convention, the Committee of Ministers is competent to supervise the execution of its final judgments only. However, 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 Court has also examined the remainder of the application as submitted by the applicant. However, having regard to all the material in its possession, an in so far as the matters complained of are within its competence or have not been effectively resolved by the aforementioned declaration, the Court finds nothing in the case file which might disclose any appearance of a violation of the Convention. 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 in respect of the complaint communicated under Article 6 § 1 of the Convention (concerning the length of the reinstatement proceedings) and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to this complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President