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SECOND
SECTION
CASE OF STANKOVIĆ v. SERBIA
(Application
no. 29907/05)
JUDGMENT
STRASBOURG
16 December 2008
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 Stanković v. Serbia,
The
European Court of Human Rights (Second Section), sitting 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
deliberated in private on 25 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29907/05) against the State
Union of Serbia and Montenegro, lodged with the Court, under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), by, at that
time, a citizen of the State Union of Serbia and Montenegro, Mr
Radenko Stanković (“the applicant”), on 1 August
2005.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- The
applicant was represented by Mr R. Spasojević, a lawyer
practising in Valjevo. The Government of the State Union of Serbia
and Montenegro and, subsequently, the Government of Serbia
(“the Government”) were represented by their Agent,
Mr S. Carić.
- On
15 March 2007 the Court decided to give notice of the application to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Mionica.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
7 November 2001 the applicant, a bus conductor, was dismissed by his
employer, “Lasta Strela”, a transportation company based
in Valjevo.
- On
24 December 2001 he filed a claim with the Municipal Court in Valjevo
(“the Municipal Court”), seeking reinstatement and
payment of salary arrears.
- Following
a remittal of 14 April 2003, the next hearing in the case was
scheduled by the Municipal Court for 27 September 2004.
- Of
the nine separate hearings scheduled between 27 September 2004 and 26
January 2006, it would appear that four were adjourned whilst five
were held. As regards the former, two hearings were adjourned because
the respondent and/or several witnesses had not been duly summoned
and the other two because witnesses, of whom two were proposed by the
applicant, had, though duly summoned, failed to appear in court (for
which omission they were ultimately fined).
- On
27 January 2006 the Municipal Court ruled against the applicant.
- On
25 April 2006 the applicant was served with this judgment.
- On
3 May 2006 the applicant filed an appeal with the District Court in
Valjevo (“the District Court”).
- On
18 December 2006 the District Court returned the case file to the
Municipal Court, requesting it to submit certain missing documents.
- On
29 March 2007 the District Court upheld the judgment rendered at
first instance.
- On
3 April 2008 the Supreme Court rejected the applicant's appeal on
points of law (revizija).
II. RELEVANT DOMESTIC LAW
A. Labour Act 2001 (Zakon o radu; published in the
Official Gazette of the Republic of Serbia - OG RS - nos. 70/01 and
73/01)
- Article
122 § 3 provided that all employment-related disputes were to be
resolved by the courts within a period of 6 months from the date of
institution of the proceedings.
B. Labour Act 2005 (Zakon o radu; published in OG RS
nos. 24/05 and 61/05)
- This
Act entered into force on 23 March 2005 and thereby repealed the
Labour Act 2001.
- The
text of Article 195 § 3 of the Labour Act 2005 corresponds to
Article 122 § 3 of the Labour Act 2001.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the above proceedings had
been incompatible with the “reasonable time” requirement
contained in Article 6 § 1, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had not exhausted all
effective domestic remedies. In particular, he had neither brought a
separate civil lawsuit under Articles 172, 199 and 200 of the
Obligations Act nor filed a criminal complaint under Article 243 of
the Criminal Code 1977.
- The
applicant contested the effectiveness of these remedies.
- The
Court has already held that the above remedies could not be deemed
effective within the meaning of its established case-law under
Article 35 § 1 of the Convention (see, mutatis mutandis,
V.A.M. v. Serbia, cited above, §§ 86 and
119, 13 March 2007). It sees no reason to depart from those
findings in the present case and concludes, therefore, that the
Government's objection must be rejected.
- The
Court further considers that the applicant's complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and finds no other ground to declare it inadmissible.
The complaint must therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
Government maintained that there had been no violation of Article 6 §
1 of the Convention. In particular, they noted that: (i) the
proceedings have only been within the Court's competence ratione
temporis as of 3 March 2004; (ii)
the domestic courts have been sufficiently active during this
period; and (iii) the applicant himself had not made any attempt to
have his case expedited.
- The
applicant reaffirmed his complaint and referred to the relevant
provisions of the respondent State's labour law (see paragraphs 17-19
above).
2. 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
having regard to the criteria laid down in its case-law, in
particular the complexity of the case, the conduct of the parties and
of the relevant authorities, as well as the importance of what is at
stake for the applicant.
- It
is further recalled that reinstatement proceedings are of crucial
importance to plaintiffs and that, as such, they must be dealt with
expeditiously (see Guzicka v. Poland, no. 55383/00, § 30,
13 July 2004).
- Lastly,
the Court notes that this requirement is reinforced additionally in
respect of States where the domestic law provides that such cases
must be resolved with particular urgency (see, among other
authorities, Stevanović v. Serbia, no. 26642/05,
§§ 53 and 55, 9 October 2007).
The Court's assessment
- The Court observes, in the first place, that the
impugned proceedings lasted between 24 December 2001 and
3 April 2008. Since Serbia ratified the Convention on 3 March
2004, they have thus been within the Court's competence ratione
temporis for a period of four years and one month before three
levels of jurisdiction.
- Secondly, on 3 March 2004 the applicant's case had
already been pending for more than two years and two months (see,
mutatis mutandis, Styranowski v. Poland, judgment of
30 October 1998, Reports of Judgments and Decisions
1998-VIII).
- Thirdly,
the nature of the applicant's lawsuit was not particularly complex.
- Fourthly, there had been one significant period of
judicial inactivity of more then one year and five months,
of which almost seven months had elapsed following the respondent
State's ratification of the Convention (see paragraph 9 above).
- Finally, it is noted that the
first instance judgment was served on the applicant some three months
following its adoption and that there had been further delays and
errors in the processing of his appeal lodged subsequently (see
paragraphs 12-15 above).
- Having
regard to the criteria laid down in its jurisprudence and the
domestic law (see, in particular, paragraphs 29 and 17-19 above, in
that order), as well as the circumstances of the present case, the
Court is of the opinion that the overall 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. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
-
The Government contested this claim.
- The
Court considers that the applicant must have suffered some
non-pecuniary damage as a result of the violation found. Accordingly,
taking into account the circumstances of the case and making its
assessment on an equitable basis, the Court awards the applicant
600 euros (EUR) under this head.
B. Costs and expenses
- The
applicant also claimed an unspecified amount
for the costs and expenses incurred domestically, as well as those
incurred in the proceedings before the Court.
- The
Government contested this claim.
- 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 (see, for example, Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54,
ECHR 2000-XI).
- In the present case, regard being had to the
information in its possession and the above criteria, the Court
rejects, as unsubstantiated, the applicant's claims in their
entirety.
C. 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 a violation of Article
6 § 1 of the Convention;
- 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 600 (six
hundred euros) in respect of the non-pecuniary damage suffered, which
sum is to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement, plus any tax
that may be chargeable;
(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 16 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. TULKENS
Registrar President
