European Court of Human Rights

Information Note on the Court’s case-law No. 168

November 2013

Azemi v. Serbia (dec.) - 11209/09

Decision 5.11.2013 [Section II] See: [2013] ECHR 1314

Article 1

Responsibility of states

Serbia’s responsibility for non-enforcement of decision given by a Kosovo court: inadmissible

 

Facts - In 1990 the applicant instituted proceedings with the Pristina District Court challenging his dismissal from work. In 2002 a municipal court in Kosovo ruled in his favour and ordered his reinstatement. Enforcement orders were issued in 2005 and 2006. In 2010 Kosovo’s Constitutional Court found a violation of the applicant’s right to a fair trial on account of the non-enforcement of the 2002 decision. Meanwhile, on 10 June 1999 the UN Security Council adopted Resolution 1244 deploying an international civil (UNMIK) and security (KFOR) presence in Kosovo. In February 2008 Kosovo declared its independence and has subsequently been recognised by 89 countries.

Law - Article 1: The applicant’s complaint against Serbia concerned the non-enforcement of the judgment adopted by a Kosovo court in 2002. In so far as it could be understood to relate to the period before 10 June 1999, that part of the complaint was incompatible ratione temporis, given that Serbia ratified the Convention only in 2004. As regards the subsequent period, the Court observed that by virtue of UNSC Resolution 1244 Kosovo was placed under international civil and military presence. UNMIK assumed all executive, legislative and judicial powers and regularly reported to the UN Secretary General, who submitted periodic reports on the situation in Kosovo to the UN Security Council. There was no evidence that Serbia exercised any control over UNMIK, Kosovo’s judiciary or other institutions that had been established by virtue of UNMIK regulations. Neither could it be said that the Serbian authorities had militarily, economically, financially or politically supported Kosovo’s institutions. Moreover, Kosovo’s subsequent declaration of independence objectively prevented Serbia from securing the rights and freedoms in Kosovo, over which it had no effective control. That part of the complaint was therefore incompatible ratione personae. To the extent that the impugned non-enforcement might be attributed to the international civil administration acting under the UN, that part of the complaint was also incompatible ratione personae.

Conclusion: inadmissible (majority).

 

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