British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
SORGIC v. SERBIA - 34973/06 [2011] ECHR 1838 (3 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1838.html
Cite as:
[2011] ECHR 1838
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
SECOND
SECTION
CASE OF
ŠORGIĆ v. SERBIA
(Application
no. 34973/06)
JUDGMENT
STRASBOURG
3 November
2011
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 Šorgić v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34973/06) against Serbia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Serbian national, Mr Sava Šorgić
(“the applicant”), on 27 July 2006.
The
applicant was represented by Mr M. Bjegović, a lawyer practising
in Belgrade. The Serbian Government (“the Government”)
were represented by their Agent, Mr S. Carić.
The
applicant complained under Articles 6 § 1 and 13 of the
Convention about the length of the inheritance proceedings, as well
as the composition of the courts in the parallel civil suit brought
in 2000.
On
23 March 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1962 and lives in Sopot, Serbia.
The
relevant facts of the case, as submitted by the parties, may be
summarised as follows.
A. The inheritance proceedings
On
22 May 1995 an inheritance-related case (ostavinski postupak)
was instituted before the Fifth Municipal Court in Belgrade. The
applicant was only one of the parties formally involved.
On
14 June 1995 the Fifth Municipal Court suspended the proceedings
since one of the heirs had contested the validity of a life-long
support contract (ugovor o doZivotnom izdrZavanju) concerning
the deceased’s flat. The inheritance proceedings were to be
resumed once this issue had been resolved in a separate civil suit.
The
deceased’s wife subsequently brought a number of cases against
the applicant, the deceased’s son, who had concluded the said
life-long support contract with his father (see paragraphs 15-33
below).
On
14 June 2000 and in view of the judgment adopted on 2 March 1999 (see
paragraphs 15-17 below), the applicant requested that the inheritance
proceedings be terminated given that there remained no estate to be
divided between the heirs.
On
15 April 2010 and in view of the decisions adopted on 13 August 2001
and 20 April 2006 (see paragraphs 19, 20 and 25 below), the
deceased’s wife requested that the inheritance proceedings be
continued.
The
applicant apparently opposed this motion, stating that the relevant
parallel proceedings were still pending (see paragraphs 18-33 below).
On
7 September 2010 the inheritance proceedings resumed, but the hearing
of the same date was adjourned due to the failure of the deceased’s
wife to appear before the court.
The
next hearing was scheduled for 21 February 2011. This hearing,
however, was also adjourned, this time in order for the court to
obtain additional information about the estate. The applicant, it
seems, did not appear at this hearing.
B. The parallel civil proceedings
1. The first set of proceedings
On
20 September 1995 the deceased’s wife filed a claim against the
applicant with the Fifth Municipal Court. She sought that the
life-long support contract be declared fictitious (fiktivan).
On
2 March 1999 the Fifth Municipal Court ruled against the plaintiff,
partly based on the “inadequately” specified cause of
action.
Having
been upheld on appeal, by 25 January 2000 this judgment became final.
2. The second set of proceedings
On
15 August 2000 the deceased’s wife brought another claim
against the applicant before the Fifth Municipal Court. She outlined
the relevant facts and sought that the life-long support contract be
partly annulled (poništen)
and partly cancelled (raskinut).
On
25 December 2000 the Fifth Municipal Court adopted a partial
judgement against the applicant (doneo delimičnu
presudu). In so doing, it stated that one half of a disputed flat
belonged to the plaintiff as the deceased’s spouse, and that
the corresponding part of the life-long support contract was
therefore to be deemed null and void. The presiding judge in the case
was judge B.
On
13 August 2001 the District Court in Belgrade confirmed this judgment
on appeal and it thereby became final. The appeal bench included
judge D.
On
17 June 2003 the Fifth Municipal Court cancelled the remainder of the
above contract, noting that the applicant had not been fulfilling his
contractual obligations properly.
On
24 March 2004 the District Court in Belgrade quashed this judgment in
view of the incoherence between its operative provisions and its
reasoning. It did not, however, offer any guidance in terms of the
desired outcome of the plaintiff’s remaining claim on its
merits. The appeal bench included judges D and B.
On
21 January 2005 the Fifth Municipal Court again cancelled the
remainder of the contract in question.
On
31 August 2005 the District Court in Belgrade confirmed this decision
on appeal, and it thereby became final.
On
20 April 2006 the Supreme Court rejected the applicant’s appeal
on points of law (revizija), reasoning that the applicant had
not been complying with his contractual obligations. The Supreme
Court’s bench included judge D.
On
12 July 2006 the applicant filed a request for
the reopening of the above proceedings (predlog
za ponavljanje postupka), which
request, inter alia,
referred to the unlawful composition of the courts on 24 March 2004
and 20 April 2006.
On
20 September 2006 the Fifth Municipal Court rejected the applicant’s
request as inadmissible (odbacio
predlog), applying the Civil
Procedure Act 2004 (see Article 422 at paragraph 44 below).
On
9 October 2006 the applicant filed a request for the protection of
legality (zahtev za zaštitu zakonitosti) with the
Supreme Court.
On
16 October 2006 the Fifth Municipal Court informed the applicant that
his request for the protection of legality would not be considered
until a final decision had been adopted in respect of his request for
reopening.
On
2 July 2008 the District Court in Belgrade quashed the Fifth
Municipal Court’s decision of 20 September 2006 on appeal,
noting that the applicable legislation was the Civil Procedure Act
1977 (see Articles 421.1 and 71.5 at paragraphs 40 and 36 below, in
that order).
On
3 December 2008 the Fifth Municipal Court again rejected the
applicant’s request for reopening as inadmissible. In
particular, it applied the Civil Procedure Act 2004 and noted, inter
alia, that the said legislation,
unlike the Civil Procedure Act 1977, did not provide for reopening in
cases where the composition of the courts was not in accordance with
the law.
On
an unspecified date thereafter the applicant appealed against this
decision.
On
28 April 2010 the High Court in Belgrade, now acting as the court of
second instance in the former District Court’s stead, quashed
the impugned decision and ordered the court of first instance to
re-examine the applicant’s request. The High Court described
the impugned decision’s reasoning as incoherent, and reaffirmed
that the applicable legislation was the Civil Procedure Act 1977.
C. The proceedings before the Constitutional Court
On
22 May 2008 the Constitutional Court rejected as inadmissible the
applicant’s appeal (ustavna Zalba) lodged against the
Fifth Municipal Court’s, the District Court’s and the
Supreme Court’s decisions of 21 January 2005, 31 August
2005 and 20 April 2006, respectively. In so doing, it explained that
all were rendered prior to the adoption of the new Serbian
Constitution in November 2006.
On
an unspecified date the applicant apparently lodged a further
constitutional appeal concerning the fairness and length of the
proceedings initiated on the basis of his request for reopening.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Civil Procedure Act 1977 (Zakon o parničnom
postupku; published in the Official Gazette of the Socialist Federal
Republic of Yugoslavia nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82,
69/82, 58/84, 74/87, 57/89, 20/90, 27/90 and 35/91, as well as in the
Official Gazette of the Federal Republic of Yugoslavia nos. 27/92,
31/93, 24/94, 12/98, 15/98 and 3/02)
Article
71.5 provides, inter alia, that a judge may not sit in a case
where he or she has already taken part in its adjudication before a
lower court.
Article
72 § 1 provides that as soon as a judge discovers this ground
for recusal, he or she must cease dealing with the case and request
the president of the court to appoint another judge in his or her
stead.
Articles
354 § 2 (1) and 365 § 2, inter alia, list a breach
of Article 71.5 as a ground for appeal which, even if not
specifically relied on by the appellant, shall be taken into account
by the appeals court ex officio.
Articles 382 § 1, 383 and 400 § 1 provide
that parties to a case may file an appeal on points of law (revizija)
with the Supreme Court. They may, however, only do so against a final
judgment or decision resulting in the termination of a lawsuit at
second instance. Articles 385 § 1 (1) and 386 further specify
that an appeal on points of law may be lodged if the composition of
the lower courts was not in accordance with Article 71.5, but do not
specify that this ground shall be taken into account by the Supreme
Court ex officio.
Article
421.1, read in conjunction with Articles 427 and 428, provides that a
case concluded by means of a final court decision shall be reopened,
at the request of one of the parties, if Article 71.5 has not been
complied with.
B. Domestic case-law as regards the application of
Article 71.5 of the Civil Procedure Act 1977
In
1987 and 1995, respectively, the Federal Court clarified that under
Article 71.5 a judge could only be excluded from deciding on a remedy
lodged against the very decision in whose adoption he or she had
already participated. This provision, however, does not preclude a
judge from sitting in a case in any other situation, including where
he or she had otherwise taken part in its adjudication before a lower
court (Gzs. 50/87 and Gzs. 36/95).
C. The
Civil Procedure Act 2004 (Zakon o parničnom postupku; published
in Official Gazette of the Republic of Serbia – OG RS –
no. 125/04)
The
substance of Articles 66 § 1 (6), 67 § 1, 361 § 2 (1),
372 § 2, 394 § 1, 396, 398 § 1 (1), 399 and 412 §
1 of the Civil Procedure Act 2004 essentially corresponds to the
substance of the aforementioned Articles 71.5, 72 § 1, 73 §
1, 354 § 2 (1), 365 § 2, 382 § 1, 383, 385 § 1
(1), 386 and 400 § 1 of the Civil Procedure Act 1977.
Articles
378 and 411 provide, inter alia, that second and third
instance courts may remit a case either to the same judge/panel which
had already taken part in the adoption of the impugned decision or to
another judge/panel of the same court.
Article
412 § 4 provides that an appeal on points of law may also be
filed where a request for the reopening of proceedings has already
been decided upon at second instance.
Article
422 of the Civil Procedure Act 2004 does not provide that a case
concluded by means of a final court decision may be reopened if the
composition of the courts was not in accordance with Article 66 §
1 (6), which provision, as noted above, essentially corresponds to
Article 71.5 of the Civil Procedure Act 1977.
The
Civil Procedure Act 2004 entered into force on 23 February 2005,
thereby repealing the Civil Procedure Act 1977.
Article
491 § 1 of the Civil Procedure Act 2004, however, provides that
the Civil Procedure Act 1977 shall be applied to all cases where
first instance proceedings have been concluded prior to 23 February
2005. Article 491 § 4 of the Civil Procedure Act 2004 further
provides that in all cases which were brought before the said date
the applicable legislation, as regards an appeal on points of law,
shall be the legislation which was in force at the relevant time.
D. The Non-contentious Proceedings Act (Zakon o
vanparničnom postupku; published in OG RS nos. 25/82, 48/88 and
46/95)
Articles
24 and 121 provide, inter alia, that should a legal heir of
the deceased raise an issue in respect of what comprises the latter’s
estate, the inheritance court shall instruct him or her to initiate a
separate civil suit and suspend the inheritance proceedings pending
its final outcome (do pravosnaZnosti).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained under Articles 6 § 1 and 13 of the
Convention about the length of the inheritance proceedings, as well
as the composition of the civil courts in the parallel civil suit
brought in 2000 (see paragraphs 18-25 above). As regards the latter,
the applicant specifically noted that judges B and D took part in the
adjudication of his case before the District Court and Supreme Court,
on 24 March 2004 and 20 April 2006 respectively, even though they had
already ruled in the same matter at lower instances. This, in the
applicant’s view, amounted to a breach of the Convention
requirement for his claim to determined by an “impartial
tribunal” as well as a “tribunal established by law”.
The
Court considers that both complaints fall to be examined under
Article 6 § 1 of the Convention only (see Posokhov v. Russia,
no. 63486/00, § 39, ECHR 2003 IV, Akdeniz v. Turkey,
no. 25165/94, § 88, 31 May 2005), which, in so far as
relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by an ... impartial tribunal established by law ...”
A. As regards whether the District Court’s and
the Supreme Court’s decisions of 24 March 2004 and 20 April
2006, respectively, were adopted by an “impartial tribunal”
or a tribunal “established by law”
1. Admissibility
(a) The parties’ arguments
The
Government maintained that the applicant has not exhausted all
effective domestic remedies. In particular, he had not complained
about the composition or the impartiality of the District Court on 24
March 2004 in his appeal on points of law, which was rejected by the
Supreme Court on 20 April 2006. Further, the proceedings for the
reopening of the civil suit in question are still pending. In respect
of the latter, the Government provided domestic case-law where civil
proceedings had been reopened, including in cases involving the
Supreme Court’s decisions, albeit on different grounds compared
to the one at issue in the present case.
The
applicant submitted that the request for reopening cannot be deemed
effective within the meaning of Article 35 § 1 of the
Convention. In particular, notwithstanding the High Court’s
decision of 28 April 2010, the first instance court was again more
than likely to reaffirm its view expressed earlier.
(b) The Court’s assessment
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for
their acts before they have had an opportunity to put matters right
through their own legal system. The rule is based on the assumption
that the domestic system provides an effective remedy in respect of
the alleged breach. The burden of proof is on the Government claiming
non-exhaustion to satisfy the Court that an effective remedy was
available in theory and in practice at the relevant time; that is to
say, that the remedy was accessible, capable of providing redress in
respect of the applicant’s complaints and offered reasonable
prospects of success. However, once this burden of proof has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement (see Mirazović v. Bosnia and
Herzegovina (dec.), no. 13628/03, 6 May 2006).
It
is further recalled that a request for the reopening of a case
concluded by means of a final court decision cannot usually be
regarded as an effective remedy within the meaning of Article 35 §
1 of the Convention (see, among many others, Josseline
Riedl-Riedenstein and Others v. Germany (dec.), no.
48662/99, 22 January 2002), but that the situation may be different
if it can be established that under domestic law such a request can
genuinely be deemed effective (see K.S. and K.S. AG
v. Switzerland, no. 19117/91, Commission decision of
12 January 1994, Decisions and Reports (DR) 76-A, p. 70).
Finally,
it has been repeatedly recognized that the speed
of the domestic procedure is relevant to whether a given remedy is to
be deemed effective and hence necessary to exhaust in terms of
Article 35 § 1 of the Convention (see, for example, Mitap
and Müftüoğlu
v. Turkey, no. 15530/89 and 15531/89,
Commission decision of 10 October 1991, DR 72, p. 169; see also the
reference to the said decision in the matter of Selmouni
v. France, no. 25803/94, Commission
decision of 25 November 1996, DR 88-3, p. 55). Indeed, the
excessive length of domestic proceedings may constitute a special
circumstance which would absolve the applicants from exhausting the
domestic remedies at their disposal (see X.
v. the Federal Republic of Germany, no.
6699/74, Commission decision of 15 December 1977, DR 11, p. 24; and
Okpisz v. Germany
(dec.), no. 59140/00, 17 June 2003).
Turning
to the present case, the Court notes that the District Court’s
decision of 24 March 2004 merely quashed the impugned decision of
17 June 2003 and remitted the matter to the Fifth Municipal
Court for re examination. The applicant could not, therefore,
have raised his complaints concerning the former in the appeal on
points of law filed subsequently, it being understood that the
relevant civil procedure rules specified that such an appeal could
only have been brought against a final judgment or decision
resulting in the termination of a lawsuit at second instance (see
paragraph 39 above). As regards the applicant’s request for
reopening, the Court notes that while in the specific circumstances
of the present case this request was not devoid of all prospects of
success, the proceedings instituted thereupon have been pending since
12 July 2006. More than five years and two remittals later, the
matter is currently again being examined at first instance with
little chance of a final decision on the issue being rendered any
time soon (see paragraph 44 above). Lastly, the domestic courts
themselves would appear to be still at odds as to which of the two
Civil Procedure Acts is applicable in the applicant’s case (see
paragraphs 27-33 above).
In
view of the above, as well as this Court’s cited case-law, the
Government’s two-pronged objection as regards the
non-exhaustion of effective domestic remedies must be rejected.
The
Court further notes that the complaints in question are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. They are also not inadmissible on any other ground.
The complaints must therefore be declared admissible.
2. Merits
(a) Arguments of the parties
The
Government maintained that there had been no violation of Article 6 §
1 of the Convention. Firstly, the domestic courts in question had
been established in accordance with the law, namely none of the
judges referred to took part in deciding on a remedy lodged against
the very decision in whose adoption he or she had participated
respectively. Secondly, the impugned civil proceedings concerning the
partial annulment of the contract in question should be distinguished
from the proceedings concerning the subsequent cancellation of the
remainder thereof, as should, indeed, the participation of the judges
at issue in each of these proceedings. Thirdly, some of the courts in
Serbia have an insufficient number of judges, which is why the law,
flexibly, provides that second and third instance courts may remit a
case either to the same judge/panel which had already taken part in
the adoption of the impugned decision or to another judge/panel of
the same court. Fourthly, the mere fact that a judge has been
involved in other proceedings concerning the same parties is not in
itself capable of giving rise to well-founded doubts as to his or her
impartiality.
The
applicant reaffirmed his complaints.
(b) The Court’s assessment
(i) As regards whether the courts were
“established by law”
The
Court recalls that “law”, within the meaning of Article 6
§ 1 of the Convention, comprises not only legislation providing
for the establishment and competence of judicial organs (see, inter
alia, Lavents v. Latvia, no. 58442/00, § 114, 28
November 2002), but also any other provision of domestic law which,
if breached, would render the participation of one or more judges in
the examination of a case irregular (see Gorguiladzé v.
Georgia, no. 4313/04, § 68, 20 October 2009, and Pandjikidzé
and Others v. Georgia, no. 30323/02, § 104, 27 October
2009).
In
other words, the phrase “established by law” covers not
only the legal basis for the very existence of a “tribunal”
but also compliance by the tribunal with the particular rules that
govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04
and 29465/04, § 24, 20 July 2006) and the composition of the
bench in each case (see Buscarini v. San Marino (dec.), no.
31657/96, 4 May 2000).
The
Court further reiterates that, in principle, a violation by
a tribunal of domestic legal provisions relating to the
establishment and competence of judicial organs gives rise to a
violation of Article 6 § 1. The Court may therefore examine
whether the domestic law has been complied with in this respect.
However, having regard to the general principle that it is, in the
first place, for the national courts themselves to interpret the
provisions of domestic law, the Court finds that it may not question
their interpretation unless there has been a flagrant violation of
domestic law (see DMD GROUP, a.s. v. Slovakia, no. 19334/03,
§ 61, 5 October 2010).
Turning
to the present case, the Court notes that, as argued by the
Government and documented by consistent and long-standing domestic
case-law, Article 71.5 of the Civil Procedure Act 1977 provided that
a judge could only be excluded from deciding on a remedy
lodged against the very decision in whose adoption he or she
had already participated (see paragraphs 18-25, 30, 33, 36 and 41
above). Since neither judge B nor judge D on 24 March 2004 and 20
April 2006, respectively, had been in such a position (see paragraphs
21, 22, 24 and 25 above), the Court cannot but conclude that the
composition of the District Court’s and Supreme Court’s
benches at issue was “established by law” within the
meaning of Article 6 § 1 of the Convention.
It
follows that there has, accordingly, been no violation of Article 6
§ 1 of the Convention in this respect.
(ii) As regards whether the courts were
“impartial”
According
to the Court’s established case-law, impartiality denotes the
absence of prejudice or bias and its existence or otherwise can be
tested in various ways. It can be assessed under a subjective
approach, that is trying to ascertain the personal conviction or
interest of a given judge in a particular case, and an objective
approach, that is determining whether the judge concerned offered
sufficient guarantees to exclude any legitimate doubt in that
respect. As to the second test, it means determining whether, quite
apart from the personal conduct of an individual judge, there are
ascertainable facts which may raise doubts as to a court’s
impartiality. The litigants’ standpoint is important but not
decisive; what is decisive is whether any misgivings in that respect
can be held to be objectively justified (see, among many other
authorities, Kyprianou v. Cyprus [GC], no. 73797/01,
§ 118, ECHR 2005-XIII, and Micallef v. Malta [GC],
no. 17056/06, §§ 93-96, ECHR 2009-...). Indeed, even
appearances may be of importance or, in other words, “justice
must not only be done, it must also be seen to be done” (see De
Cubber v. Belgium, judgment of 26 October 1984, Series A no.
86, § 26; and MeZnarić v. Croatia, no.71615/01, §
32, 15 July 2005).
In
applying the subjective test, the Court has consistently held that
the personal impartiality of a judge must be presumed until there is
proof to the contrary (see Kyprianou, § 119, and
Micallef, § 94, both cited above), whilst as regards the
objective test, the mere fact that a judge has been involved in other
proceedings concerning the same parties is not in itself reasonably
capable of giving rise to legitimate doubts as to his or her
impartiality (see Anguelov v. Bulgaria (dec.), no. 45963/99,
14 December 2004).
Turning
to the matter at hand and in applying the subjective test, the Court
notes that the applicant has not adduced any proof to rebut the
presumption that the judges in question were impartial. The fact that
they had not recused themselves from dealing with the civil suit at
issue at second and third instance, following their earlier
participation in the proceedings, does not constitute the required
proof (see, mutatis mutandis, Sofri and Others v. Italy
(dec.), no. 37235/97, ECHR 2003-VIII; Bracci v. Italy,
no. 36822/02, § 52, 13 October 2005; and Previti v. Italy
(dec.), no. 45291/06, § 258, 8 December 2009). It is
further noted that the benches concerned, including the judges in
question, gave reasons for their rulings, and evinced no bias in
favour or against any of the parties to the proceedings (contrast
Kyprianou, cited above, § 130, and, mutatis mutandis,
the related case of Panovits v. Cyprus, no. 4268/04, §§
96-100, 11 December 2008).
As
regards the objective test, the Court observes that on 25 December
2000 judge B had taken part in the partial annulment of the life-long
support contract, which annulment became final by 13 August 2001 (see
paragraphs 19 and 20 above). The proceedings then continued as
regards the remainder of the impugned contract, which was itself
cancelled by judgment of the Fifth Municipal Court of 17 June 2003
(see paragraph 21 above). On 24 March 2004 judge B participated in
the adoption of the decision to quash this judgment on appeal (see
paragraph 22 above). In such circumstances, the Court notes that the
decisions of 25 December 2000 and 24 March 2004 seemingly concerned
different issues, i.e. the partial annulment of the contract on the
one hand and the cancellation of its remainder on the other. However,
on both occasions the decisions in question relied on the same set of
inter-related facts concerning the deceased’s complex
relationship with his son and his wife, and essentially dealt with
the same original claim through which the latter sought a
comprehensive determination of her interests arising in this context
(see, mutatis mutandis, Fatullayev v. Azerbaijan, no.
40984/07, § 139, 22 April 2010). Moreover,
whilst the decision of 25 December 2000 had clearly been rendered
partly against the interests of the applicant, the decision of
24 March 2004 contained no pronouncements as to how the
remainder of the plaintiff’s claim ought to be adjudicated.
Taking into account the overall context in which the decision to
quash the earlier decision on technical grounds was adopted and the
fact that it did not finally determine the outcome of the proceedings
in the applicant’s favour, it cannot
either reasonably be argued that judge B had ruled once against the
applicant and once in line with his interests. Lastly, the Court
notes that judge D had taken part in the adoption of the District
Court’s said decision of 24 March 2004, ordering a
remittal, as well as the Supreme Court’s decision of 20 April
2006 whereby the applicant’s appeal on points of law had been
rejected, and that both decisions concerned the cancellation of the
remainder of the contract at issue (see paragraphs 21, 22 and 25
above).
It
follows that as regards the decision of 24 March 2004 and, a
fortiori, the decision of 20 April 2006, legitimate doubts can be
raised as to the lack of the said judges’ impartiality,
respectively, and, further, that such doubts can be considered as
objectively justified.
There
has accordingly been a violation of Article 6 § 1 of the
Convention in this respect.
B. As regards the length of the inheritance proceedings
1. Admissibility
(a) Compatibility ratione materiae
In
the Court’s view, although the Government have not raised an
objection as to its competence ratione materiae, this matter
nevertheless requires consideration (see, mutatis mutandis,
Blečić v. Croatia [GC], no. 59532/00, §
67, ECHR 2006 III).
The
Court observes in this regard that the impugned inheritance
proceedings and the parallel civil suits all essentially concern the
same issue, i.e. the disposition of the deceased’s estate in
the context of the disputed validity of the life-long support
contract in question.
It
follows therefore that, notwithstanding their suspension pending the
outcome of the parallel civil suits, the inheritance proceedings
themselves, as well as the said civil suits, all fall within the
scope of Article 6 § 1 of the Convention.
(b) Exhaustion of domestic remedies
The
Government pointed out that the applicant had never complained before
the Constitutional Court concerning the length of the inheritance
proceedings at issue.
The
Court recalls that it has already held that a constitutional appeal
should, in principle, be considered as an effective domestic remedy,
within the meaning of Article 35 § 1 of the Convention, in
respect of all applications introduced against Serbia as of 7 August
2008 (see Vinčić and Others v. Serbia,
nos. 44698/06 et seq., § 51, 1 December 2009). It sees no
reason to hold otherwise in the present case.
In
view of the above and having regard to the fact that the applicant
had introduced his complaint before the Court on 27 July 2006, it
follows that the Government’s objection must be dismissed.
(c) Conclusion
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It is
also not inadmissible on any other ground. The complaint must
therefore be declared admissible.
2. Merits
(a) Arguments of the parties
The
Government submitted that the Fifth Municipal Court had decided to
suspend the inheritance proceedings based on the relevant domestic
law and had subsequently ordered their resumption when the situation
so warranted. The inheritance proceedings, prior to and
following their suspension, could not be considered as excessively
protracted, and the parallel civil suits were themselves not
characterised by any significant periods of judicial inactivity.
Lastly, the Government noted that the applicant had made use of many
avenues of redress, thus contributing to the length of the impugned
proceedings, and argued that whilst he cannot be blamed for making
use of his procedural rights under domestic law neither should the
State for the unavoidable, delay-related, consequences thereof.
The
applicant did not comment.
(b) Relevant principles
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII; the Humen v. Poland [GC], no 26614/95, §
60, unreported, and the Comingersoll S.A. v. Portugal [GC],
no. 35382/97, ECHR 2000-IV; the Philis v. Greece (no. 2),
judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV,
§ 35).
Further,
repeated re-examination of a single case following remittal may in
itself disclose a serious deficiency in the respondent State’s
judicial system (see, for example, Pavlyulynets v. Ukraine,
no. 70767/01, § 51, 6 September 2005).
(c) Period to be taken into account
The
Court observes that the inheritance proceedings at issue were brought
on 22 May 1995 and that they are still pending at first instance (see
paragraphs 7-14 above). Since the respondent State ratified the
Convention on 3 March 2004, they have thus been within the Court’s
competence ratione temporis for a period of more than seven
years.
Further,
the Court recalls that, in order to determine the reasonableness of
the delay complained of, regard must also be had to the state of the
case on the date of ratification (see, mutatis mutandis,
Styranowski v. Poland, judgment of 30 October 1998, Reports
1998-VIII) and notes that on 3 March 2004 the proceedings in
question had already been pending for a period of almost nine years.
Finally,
the Court observes that the impugned inheritance proceedings were
suspended between 14 June 1995 and 7 September 2010, pending the
outcome of the parallel civil suits. However, since all of these
proceedings concern the same underlying issue (see, mutatis
mutandis, Cravcenco v. Moldova, no. 13012/02, § 49,
15 January 2008), i.e. the deceased’s estate, and are
inextricably linked to each other, the Court shall also examine the
conduct of the parallel civil proceedings between 3 March 2004 and 7
September 2010.
(d) The Court’s assessment
The
Court notes that on the date of the Convention’s entry into
force in respect of Serbia the inheritance proceedings had already
been suspended, but that the second set of the parallel civil
proceedings were pending on appeal. Following a remittal and new
decisions rendered at first and second instance, by 20 April 2006 the
Supreme Court rejected the applicant’s further appeal on points
of law (see paragraphs 7-14 and 18-25 above).
On
12 July 2006 the applicant filed a request for the reopening of the
above proceedings. By 28 April 2010 this request was twice rejected
at first instance, and these rejections were twice quashed on appeal.
As of 28 April 2010, therefore, the applicant’s request has
again been pending at first instance, apparently without any relevant
procedural developments (see paragraphs 26-33).
The
inheritance proceedings were resumed on 7 September 2010, seemingly
without further awaiting the outcome of the applicant’s request
for reopening. In these circumstances it remains unclear why the
inheritance court had not done so earlier, i.e. after the adoption of
the Supreme Court’s decision of 20 April 2006. It is further
noted that two hearings were scheduled as of 7 September 2010, but
that both were adjourned subsequently (see paragraph 7-14 and 25
above).
Finally,
the applicant’s conduct would appear not to have contributed to
the procedural delay complained of, including between 15 April
2010 and 7 September 2010 (see paragraphs 11-13 above), it being
understood that according to the Court’s jurisprudence, an
applicant cannot be blamed for taking full advantage of the remedies
afforded by national law in the defence of his interests (see Nankov
v. “the former Yugoslav Republic of Macedonia”, no.
26541/02, § 47, 29 November 2007). Equally, however, while it is
always for Contracting States to organise their judicial systems in
such a way that their courts can guarantee everyone’s right to
obtain a determination of their rights and obligations “within
a reasonable time” (see, among other authorities, G.H. v.
Austria, no. 31266/96, § 20, 3 October 2000), this
obligation cannot be construed so as to mean that any delays created
by an applicant’s use of various remedies can be imputed
thereto.
Having
regard to the criteria laid down in its jurisprudence (see paragraphs
81 and 82 above) and the relevant facts of the present case,
including its relative simplicity, as well as the conduct of the
parties and of the authorities, the Court considers that the length
of the proceedings complained of has failed to satisfy the reasonable
time requirement.
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. As regards the timeliness of the applicant’s
claim
The
Government maintained that the applicant’s just satisfaction
claim was belated.
In
this respect the Court notes that on 22 November 2010 the Registry
acknowledge receipt of, inter alia, the applicant’s just
satisfaction claim posted on 12 November 2010. It further observed
that the claim was submitted outside the time-limit set in its letter
of 27 September 2010, but then went on to inform the applicant that,
due to his own delayed receipt of the Court’s prior
correspondence, the President of the Chamber had exceptionally
decided to admit his claim to the file.
By
letter of even date the Government were notified of the above and
were invited, inter alia, to provide any comments concerning
the substance of the applicant’s claim for just satisfaction.
In
view of the above, as well as having regard to the provisions of Rule
60 of the Rules of Court, the Government’s objection must be
dismissed.
B. Damage
In
his application form the applicant sought EUR 20,000 in respect of
the non-pecuniary damage suffered due to the “breach of
contract” at issue.
In
his observations of 12 November 2010 the applicant requested costs
and expenses (as detailed below), but noted that the related
“pecuniary and non-pecuniary damage will ... [be sought before]
... the competent court in Belgrade ... [,] ... Serbia”.
Accordingly,
the Court considers that there is no call to award him any sum on
that account.
C. Costs and expenses
The
applicant claimed a total of EUR 8,110, plus “legal interest”,
for the costs and expenses incurred before the domestic courts, as
well as those incurred before the Court.
The
Government contested this claim, describing it as unsubstantiated.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum. In the present case, regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 1,000
covering costs under all heads.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention as regards whether the domestic
courts were “established by law”;
Holds that there has been a violation of Article
6 § 1 of the Convention as regards the applicant’s right
to an impartial tribunal;
Holds that there has also been a violation of
Article 6 § 1 of the Convention as regards the length of the
impugned proceedings;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one thousand
euros), plus any tax that may be chargeable, in respect of costs and
expenses, to be converted into Serbian Dinars at the rate applicable
at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
