European Court of Human Rights

Information Note on the Court’s case-law No. 159

January 2013

Markinković v. Serbia (dec.) - 5353/11

Decision 29.1.2013 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

In cases concerning non-enforcement of judgments against socially-owned companies, Constitutional Court appeal may under certain conditions be effective domestic remedy requiring exhaustion: admissible

 

Facts - The applicant complains under Article 6 § 1 of the European Convention of a failure by the respondent State to enforce final judgments against a predominantly socially-owned company that had become insolvent and under Article 13 of the lack of an effective remedy. The Government raised a preliminary objection arguing that the applicant had failed to exhaust domestic remedies as he had not lodged an appeal with the Constitutional Court, which had recently harmonised its case-law with that of the European Court.

Law - Article 35 § 1: The recent case-law of the Serbian Constitutional Court indicated that, in matters concerning the non-enforcement of judgments against socially-owned companies undergoing insolvency proceedings and/or that had ceased to exist, it was prepared to find a violation of the relevant constitutional rights, and to order the State to pay compensation in respect of both non-pecuniary damage and pecuniary damage. Accordingly, a constitutional appeal was, in principle, to be considered an effective domestic remedy requiring exhaustion in respect of all applications lodged from 22 June 2012 onwards (the date of publication in the Official Gazette of the relevant Constitutional Court decision).

Conversely, in cases where the debtor company was still undergoing a process of restructuring, the Constitutional Court was only willing to award compensation against the State in respect of non-pecuniary damage, but not in respect of pecuniary damage. Consequently, a constitutional appeal still could not be considered effective in cases involving the respondent State’s liability for the non-enforcement of judgments against socially-owned companies undergoing restructuring, although the European Court might reconsider that position in the future if there was clear evidence that the Constitutional Court had fully harmonised its approach with the Court’s case-law.

In the present case, as the applicant had lodged his application well before 22 June, he had been under no obligation to lodge a constitutional appeal before turning to the Court. The Government’s preliminary objection was therefore dismissed.

Conclusion: admissible (unanimously).

 

 

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