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SECOND
SECTION
CASE OF ČEH v. SERBIA
(Application
no. 9906/04)
JUDGMENT
STRASBOURG
1 July
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 Čeh v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Vladimiro Zagrebelsky,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
decided to dispense with a hearing in the case and, instead,
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9906/04) 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, Ms
Natalija Čeh (“the applicant”), on 30
January 2004.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- 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
10 November 2006 the Court decided to give notice of the application
to the Government. Applying Article 29 § 3 of the Convention, it
further 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 Belgrade.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
16 October 1990 the owner of the flat in which the applicant lived
filed a civil action with the First Municipal Court (Prvi
opštinski sud) in Belgrade, seeking her eviction.
- In
his claim, the plaintiff maintained that the applicant had lost “the
status of a protected tenant” (nosilac stanarskog prava
odnosno zakupac stana na neodređeno
vreme), as provided for under the relevant domestic legislation.
- On
4 April 1994 the First Municipal Court ruled in favour of the
applicant.
- On
20 October 1994 the District Court (OkruZni sud) in Belgrade
quashed this judgment in view of the unlawful composition of the
trial chamber at first instance and sent the case back for a retrial.
- From
16 May 1995 to 28 February 2002, the First Municipal Court ruled in
favour of the applicant on two separate occasions but each time its
judgments were quashed on appeal by either the District Court or the
Supreme Court (Vrhovni sud) and were remitted.
- On
2 September 2002 the First Municipal Court ruled again in favour of
the applicant.
- On
29 April 2003 the District Court quashed this judgment on appeal. It
noted, once more, the unlawful composition of the trial chamber at
first instance and ordered a retrial before the Municipal Court.
- On
29 January 2004 the applicant complained to the President of the
First Municipal Court, stating that the presiding judge in her case,
despite repeatedly ruling in her favour, kept committing procedural
errors on the basis of which higher courts always had grounds to
order a retrial.
- On
16 March 2004 the President of the First Municipal Court accepted the
applicant's request and assigned another judge to deal with her case.
- From
20 April 2004 to 6 July 2006, the First Municipal Court scheduled
another twelve hearings. Only three of those, on 15 September 2005,
11 May 2006 and 6 July 2006, were held as scheduled, while the others
appear to have been adjourned on various grounds. In particular the
hearings scheduled for: (i) 20 April 2004 and 6 April 2005 were
adjourned because of the presiding judge's need for additional time
in order to review the case file; (ii) 27 September 2004 because of
the absence of the presiding judge; (iii) 24 November 2004, 28
November 2005 and 24 February 2006 because of several witnesses who
had either not been served properly or had failed to appear in court;
and (iv) 25 June 2004, 2 February 2005 and 26 May 2005 because
of the need to obtain additional written evidence and/or hear
additional witnesses.
- The
next hearing in the case was held on 5 September 2006.
- On
11 September 2006 the First Municipal Court decided that the
proceedings should not be joined with a related case filed by the
applicant separately.
- On
17 October 2006 the First Municipal Court ruled again in favour of
the applicant. In so doing, it recognised the plaintiff as the owner
of the flat in question, but, at the same time, held that the
applicant, being a protected tenant, had a right to continue living
therein.
- On
an unspecified date the applicant, as well as the plaintiff, appealed
against this judgment. The applicant, in particular, maintained that
she should have been recognised as the owner of the flat in question.
- On
30 May 2007 the District Court rejected both appeals and upheld the
judgment rendered at first instance.
- On
9 July 2007 the plaintiff filed an appeal on points of law (revizija)
with the Supreme Court.
- On
16 August 2007 the applicant filed a request for the protection of
legality (zahtev za zaštitu zakonitosti) with the same
court.
- The
applicant has been living in the flat at issue throughout the
proceedings.
II. RELEVANT DOMESTIC LAW
A. Constitution of the Republic of Serbia 2006 (Ustav
Republike Srbije; published in the Official Gazette of the Republic
of Serbia – OG RS – no. 98/06)
- The
relevant provisions of the Constitution read as follows:
Article 32
§ 1
“Everyone shall have the right to ... [a hearing
before a] ... tribunal ... within a reasonable time ... [in the
determination] ... of his [or her] rights and obligations ...”
Article 170
“A constitutional appeal may be lodged against
individual decisions or actions of State
bodies or organisations exercising delegated public powers which
violate or deny human or minority rights and freedoms guaranteed by
the Constitution, if other legal remedies for their protection have
already been exhausted or have not been prescribed.”
Article 172 §§ 1, 2 and 3
“The Constitutional Court shall have fifteen
judges who shall be elected or appointed for a period of nine years.
Five judges
of the Constitutional Court shall be elected by the National
Assembly, another five shall be appointed by the President of the
Republic, and another five shall be appointed at the general session
of the Supreme Court of Cassation ...
The National Assembly shall elect
five judges of the Constitutional Court
from among ten candidates proposed by the President of the Republic,
the President of the Republic shall appoint five judges of the
Constitutional Court from among ten candidates proposed by the
National Assembly, and the general session of the Supreme Court of
Cassation shall appoint five judges from among ten candidates
proposed at the general session by the High Judicial Council and the
State Prosecutors' Council.”
Article 175 § 1
“The Constitutional Court shall adjudicate by the
majority of votes cast by all judges of the Constitutional Court.”
B. Constitutional Act on the Implementation of the
Constitution of the Republic of Serbia (Ustavni zakon za sprovođenje
Ustava Republike Srbije; published in OG RS no. 98/06)
- In
accordance with Article 9 § 3 of this Act, the Constitutional
Court shall be deemed constituted when two thirds of the total number
of judges have been elected or appointed, which had been attained by
24 November 2007.
C. Constitutional Court Act (Zakon o Ustavnom sudu;
published in OG RS no. 109/07)
- The
relevant provision of this Act read as follows:
Article 7 § 1
“The decisions of the Constitutional Court shall
be final, enforceable and binding.”
Article 10 § 1
“The Constitutional Court shall have its Rules of
Procedure ... which shall regulate, in greater detail, the
organisation ... [and the functioning of the Constitutional Court]
... as well as the proceedings ... [before it] ...”
Article 27 §§ 1 and 2
“ ... [T]he Constitutional Court shall have a
Registry.
The organisation, the tasks, and the functioning of the
Registry shall be regulated, in greater detail, by ... the
Constitutional Court.”
Article 82 § 1 and 2
“A constitutional appeal may be lodged against an
individual decision or an action of a State body or an
organisation exercising delegated public powers which violates or
denies human or minority rights and freedoms guaranteed by the
Constitution, if other legal remedies have already been exhausted or
have not been prescribed or where
the right to their judicial protection has been excluded by law.
A constitutional appeal may be lodged even if all
available remedies have not been exhausted in the event of a breach
of an applicant's right to a trial within a reasonable time.”
Article 83 § 1
“A constitutional appeal may be lodged by any
individual who believes that any of his or her human or
minority rights or freedoms guaranteed by the Constitution has
been violated or denied by an individual decision or an action of a
State body or an organisation exercising delegated public powers.”
Article 84 § 1
“A constitutional appeal may be lodged within
thirty days of receipt of the individual decision or the date of
commission of the actions ... [in question] ...”
Article 89 § 2 and 3
“When the Constitutional Court finds that an ...
individual decision or action has violated or denied a human or
minority right or a freedom guaranteed by the Constitution, it shall
annul the ... decision in question or ban the continuation of such
action or order the implementation of other specific measures as well
as the removal of all adverse consequences within a specified period
of time.
The decision of the Constitutional Court accepting a
constitutional appeal shall constitute a legal basis for requesting
compensation or the removal of other adverse consequences before a
competent body, in accordance with the law.”
Article 90
“... [An applicant who has obtained a
Constitutional Court decision in his or her favour] .., may lodge a
compensation claim with the Commission for Compensation in order to
reach an agreement in respect of the amount ... [of compensation to
be awarded] ...
If the Commission for Compensation does not rule
favourably in respect of a compensation claim or fails to issue a
decision within thirty days from the date of its submission, the
applicant may file a civil claim for damages before the
competent court. If only partial agreement has
been achieved, a civil claim may be filed in respect of the remainder
of the amount sought.
The composition and operation of the Commission for
Compensation shall be regulated by the Minister of Justice.”
Article 116
“The Constitutional Court shall, within ninety
days as of the date of entry into force of this Act, adopt its Rules
of Procedure and ... [further regulate the organisation and
functioning of its Registry] ...”
The Minister of Justice shall, within ninety days as of
the date of entry into force of this Act ... [regulate the
composition and the operation of the Commission for Compensation]
...”
D. Rules of Procedure adopted by the Constitutional
Court (Poslovnik o radu Ustavnog suda; published in OG RS no. 24/08)
- Articles
72 and 73 provide additional details as regards the processing of the
appeals lodged with the Constitutional Court.
E. Entry into force of the above legislation
- The
new Constitution of the Republic of Serbia, as well as the
Constitutional Act on its implementation, entered into force in
November 2006.
- The
Constitutional Court Act entered into force in December 2007.
- The
Rules of Procedure of the Constitutional Court entered into force in
March 2008.
F. Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in OG RS no. 125/04)
- Articles
181 and 182, taken together, provide, inter alia, that the
court shall award compensation for the damage suffered by a party to
an ongoing civil suit if such damage was caused by any procedural
abuse (zloupotreba procesnih ovlašćenja) committed
by other natural and/or legal persons involved in the proceedings.
III. RELEVANT INTERNATIONAL JURISPRUDENCE
- At
page 34 of the judgment in the Mavrommatis Palestine Concessions
case (Greece v. UK, 1924, Series A – No. 2), the
Permanent Court of International Justice, inter alia, held as
follows:
“... [I]t must also be considered whether the
validity of the institution of proceedings can be disputed on the
ground that the application was filed before Protocol XII had become
applicable. This is not the case. Even assuming that before that time
the Court had no jurisdiction because the international obligation
referred to in Article II was not yet effective, it would always have
been possible for the applicant to re-submit his application in the
same terms after the coming into force of the Treaty of Lausanne, and
in that case, the argument in question could not have been advanced
... [In any event, even if] ... the application were premature
because the Treaty of Lausanne had not yet been ratified, this
circumstance would now be covered by the subsequent deposit of the
necessary ratifications ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant relied on Articles 1, 3, 6, 8, 13, 14 and 17 of the
Convention. In substance, however, she complained about the length,
as well as the overall fairness and impartiality, of the eviction
proceedings in question.
- The
Court considers that these complaints fall to be examined under
Article 6 § 1 of the Convention only, which, in its relevant
part reads as follows:
“In the determination of his [or her] civil rights
and obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. As regards the length of the eviction proceedings
1. Admissibility
(a) Compatibility ratione personae
- The
Government noted that even though Serbia ratified the Convention on 3
March 2004 the applicant had lodged her application with the Court on
30 January 2004, more than a month earlier. The application as a
whole was thus incompatible with the provisions of the Convention
ratione personae.
- The
applicant disagreed.
- The
Court notes that the applicant's complaints made initially, that is
before the respondent State's ratification of the Convention, were
repeatedly reaffirmed thereafter and, further, that the impugned
domestic proceedings are themselves still pending.
- The
Government's objection must, therefore, be dismissed (see paragraph
33 above; see also, although in a somewhat different context,
Cenbauer v. Croatia, no. 73786/01, ECHR 2006).
(b) Exhaustion of domestic remedies
- The
Government maintained that the applicant had not exhausted all
effective domestic remedies. In particular, she had failed: (i) to
bring a separate civil suit under Articles 172 and 200 of the
Obligations Act, Article 25 of the Constitution 1990, and Article 6 §
1 of the Convention; (ii) to lodge a criminal complaint under
Articles 242, 243 and 245 of the Criminal Code 1977; (iii) to file a
compensation claim under Article 182 of the Civil Procedure Act; and
(iv) to lodge an appeal with the “new” Constitutional
Court;
- The
applicant argued that none of the remedies referred to could be
deemed effective.
- As
regards the Government's submissions under (i) and (ii), the Court
recalls that it has already held that the remedies in question were
ineffective within the meaning of Article 35 § 1 of the
Convention (see V.A.M. v. Serbia, no. 39177/05, § 86,
13 March 2007). It sees no reason to depart from this finding in
the present case.
- Concerning
the Government's submissions under (iii), the Court notes that
Article 182 of the Civil Procedure Act relates to any procedural
abuse committed by the parties themselves, or other natural or legal
persons involved in the proceedings, rather than the domestic court's
own conduct. Since the Government have failed to provide any evidence
to the contrary, Article 182 must likewise be deemed ineffective.
- Finally,
as regards the Government's submissions under (iii), the Court
reiterates that the issue of whether domestic remedies have been
exhausted is normally determined by reference to the date when the
application was lodged with the Court (see Baumann v. France,
no. 33592/96, § 47, ECHR 2001-V (extracts)). In the
present case, the application was filed on 30 January 2004. By 24
November 2007 two thirds of the Constitutional Court's new judges
were elected or appointed (see paragraph 26 above). Accordingly, and
irrespective of the said court's effectiveness within the meaning of
Article 35 § 1, the applicant could not have been expected to
file a constitutional appeal almost four years after the submission
of her application to the Court. Therefore the Court concludes that
in the present case and indeed as regards, at the very least, all
applications lodged before 24 November 2007, there are no special
circumstances which would justify a departure from the general rule
of exhaustion of domestic remedies (see, mutatis mutandis,
Pikić v. Croatia, no. 16552/02, §§ 30-33,
18 January 2005).
- It
follows that the Government's objection must be dismissed in its
entirety.
(c) Conclusion
- The
Court 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.
2. Merits
(a) Arguments of the parties
- The
Government noted, in the first place, that the proceedings in
question have been within the Court's competence ratione temporis
as of 3 March 2004 only.
- Secondly,
they pointed out that the domestic courts have been sufficiently
active thereafter.
- Thirdly,
the Government maintained that the applicant had contributed to the
delay complained of and observed, in this respect, that she had filed
an appeal against the first instance judgment even though it had been
rendered in her favour.
- Fourthly,
the Government maintained that the case was complex and that the
applicant had attempted to make it even more complex by asserting her
perceived property rights throughout the eviction proceedings,
notwithstanding the fact that this was clearly a separate issue.
- Lastly,
the Government concluded that, for the above reasons, there has been
no violation of the reasonable time requirement contained in Article
6 § 1 of the Convention.
- The
applicant reaffirmed her complaint.
(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
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 (see, among other authorities, Stevanović
v. Serbia, no. 26642/05, § 53, 9 October
2007).
- It
is further noted that even where the nature of the domestic case is
not, as such, complex, a party to the proceedings may, through his or
her own actions, render its examination complex (see, mutatis
mutandis, Stoidis v. Greece, no. 46407/99, § 18,
17 May 2001).
- Finally,
the Court observes that the repeated re-examination of a single case
following remittal may, in and of itself, disclose a serious
deficiency in the respondent State's judicial system (see
Pavlyulynets v. Ukraine, no. 70767/01, § 51, 6 September
2005).
(c) The Court's assessment
- The
Court observes that the proceedings in question are apparently still
pending at third instance (paragraph 22 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 four years and three months, as of the date of
the adoption of the present judgment.
- The
Court also recalls that, in order to determine the reasonableness of
the delay at issue, regard must 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 of Judgments
and Decisions 1998-VIII) and notes that on 3 March 2004 it had
already been pending for more than thirteen years.
- In
view of the criteria laid down in its jurisprudence and the relevant
facts of the present case, including the applicant's conduct, 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.
B. As regards the overall fairness of the eviction
proceedings and the impartiality of the domestic courts
- Given
that the proceedings at issue are apparently still pending, the Court
finds that the applicant's complaints of unfairness and partiality
are premature and, as such, inadmissible for non-exhaustion of
domestic remedies, pursuant to Article 35 §§ 1
and 4 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 49,000 euros (EUR) in respect of pecuniary damage
and EUR 2,000,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, deciding on an equitable basis, it awards the applicant EUR
2,400 as regards the non-pecuniary damage suffered.
B. Costs and expenses
- The
applicant also claimed EUR 15,000 for the costs and expenses incurred
before the domestic courts.
- The
Government contested the 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
reasonable as to their quantum.
- In
the present case, regard being had to the information in its
possession, the Court rejects the applicant's claim for the costs and
expenses incurred domestically, given that the impugned proceedings
would appear to be still pending and that the costs and expenses in
question could thus yet be recovered therein.
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 complaint under Article 6 § 1
of the Convention, as regards the length of the eviction suit,
admissible and the remainder of the application inadmissible;
- 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 2,400 (two
thousand four hundred euros) in respect of the non-pecuniary damage
suffered, plus any tax that may be chargeable, to be converted into
the national currency of the respondent State at the rate applicable
on 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
(c) that
the respondent State shall ensure that the proceedings at issue are
concluded as speedily as possible, taking into account the
requirements of the proper administration of justice;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
