European Court of Human Rights

SECOND SECTION

DECISION

Application no. 46616/07
by Teodora KNEZEVIĆ and Svetlana KNEZEVIĆ
against Serbia

The European Court of Human Rights (Second Section), sitting on 17 March 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 24 October 2007,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the declaration submitted by the respondent Government on 12 September 2008 requesting the Court to strike the application out of the list of cases and the applicant’s reply thereto,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Teodora KneZević (“the first applicant”) and Ms Svetlana KneZević (“the second applicant”), are both Serbian nationals who were born in 1990 and 1954 respectively and currently live in Belgrade. The second applicant is the first applicant’s mother. The Serbian Government (“the Government”) were represented by their Agent, Mr. S. Carić.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The first set of civil proceedings

On 1 October 1990 Đ.Z. acknowledged, before the District Court (OkruZni sud) in Belgrade, that he was the first applicant’s biological father.

On the same date this court ordered Đ.Z. to pay monthly child maintenance for the first applicant.

It seems, however, that Đ.Z. failed to comply with this judgment.

2.  The second set of civil proceedings

On 2 June 1992 Đ.Z. filed a claim against both applicants, to have his prior recognition of paternity declared null and void.

On 5 May 1993 the Fourth Municipal Court (Četvrti opštinski sud) in Belgrade ruled in his favour.

By September 1994 this judgment had become final.

3.  The third set of civil proceedings and the subsequent enforcement proceedings

On 6 September 1994 the applicants jointly filed a claim against Đ.Z., seeking recognition of his paternity and an order for an increased amount of child maintenance.

Following one remittal, on 30 December 2005 the Fourth Municipal Court ruled in favour of the applicants. In so doing, it declared Đ.Z. to be the first applicant’s biological father and ordered him to pay, as of 6 September 1994, monthly maintenance in the amount of 8,000 dinars, plus the already accrued maintenance and 99,362.50 dinars in costs, within a period of fifteen days.

On 31 May 2006 this judgment was upheld by the District Court in Belgrade and thereby became final.

On 15 September 2006 the first applicant filed a request with the Fourth Municipal Court, seeking enforcement of the judgment rendered in her favour.

On 18 October 2006 the Fourth Municipal Court issued an enforcement order to this effect.

It appears that the enforcement proceedings are still pending, no payment being forthcoming from the debtor.

COMPLAINTS

The applicants invoked Article 6, 8, and 13 of the Convention, as well as Article 5 of Protocol No. 7. In substance, however, they complained about: (i) the fairness and the outcome of the second set of civil proceedings; (ii) the length of the third set of civil proceedings, taken together with the subsequent enforcement proceedings; and (iii) the absence of an effective domestic remedy for procedural delay.

THE LAW

By letter dated 12 September 2008, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving these issues They also requested the Court to strike out the application in accordance with Article 37 of the Convention.

The Government’s declaration signed by their Agent reads as follows:

“I declare that the Government of the Republic of Serbia is ready to accept that there had been a violation of the applicants’ rights under Article 6 paragraph 1 and Article 13 of the Convention and offer to pay the applicants the amount of EUR 4,400 ex gratia in respect of the application registered under no. 46616/07 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 judgment 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 letter dated 20 October 2008the applicants expressed the view that a strike-out of their case would not be justified.

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 Articles 6 and 13 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 these Articles 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 four years and eleven 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 the examination of this part of the application (Article 37 § 1 in fine).

Accordingly, it should be struck out of the case.

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 applicants’ domestic claim or, indeed, their ability to obtain redress for any additional procedural delay which may occur after the date of the present decision.

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).

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the complaints communicated under Articles 6 § 1 and 13 of the Convention (concerning the length of 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 these complaints in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Sally Dollé Françoise Tulkens
Registrar President