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SECOND
SECTION
CASE OF NEMET v. SERBIA
(Application
no. 22543/05)
JUDGMENT
STRASBOURG
8
December 2009
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 Nemet v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22543/05) 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 a Serbian
national, Mr Laslo Nemet (“the applicant”), on 6 June
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 V. Medović a lawyer practicing
in Novi Sad. The Serbian Government (“the Government”)
were represented by their Agent, Mr S. Carić
- On
30 August 2006 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 (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Novi Sad.
- On
7 June 1996 he filed a lawsuit against his former wife, seeking
division of their marital property.
- On
22 March 1999 the applicant instituted another lawsuit, this time
against an individual who had subsequently bought the property in
question.
- On
25 March 1999 the Municipal Court (Opštinski sud) in
Novi Sad joined these two sets of proceedings into a single case.
- The
Municipal Court scheduled a total of sixteen hearings, only two of
which had been held since 3 March 2004.
-
On 13 July 2005 the Municipal Court appointed an expert. On
22 February 2007, however, it appointed a new expert because the
original expert had failed to provide his findings.
- On
25 March 2008 the Municipal Court ruled partly in favour of the
applicant.
- On
28 January 2009 the District Court (OkruZni sud) in Novi Sad
quashed this judgment and ordered a re-trial.
- According
to the information in the case file submitted by the parties, the
case is still pending at first instance.
THE LAW
- Under
Article 6 § 1 of the Convention, the applicant complained that
the length of the above proceedings has been incompatible with the
“reasonable time” requirement. Under Article 13 of the
Convention he implicitly complained that he did not have an effective
domestic remedy at his disposal in order to have these proceedings
expedited.
- The
Government raised various objections to the admissibility of these
matters. However, the Court has rejected similar objections in many
previous cases (see, for example, mutatis mutandis, Tomić v.
Serbia, no. 25959/06, §§ 81 and 82, 26 June 2007;
V.A.M. v. Serbia, no. 39177/05, §§ 85 and 86, 13
March 2007; Cvetković v. Serbia, no. 17271/04, §§
38 and 42, 10 June 2008) and finds no reason not to do so on this
occasion. The complaints are therefore admissible.
- The
Court observes that the period to be taken into consideration began
only on 3 March 2004, when the recognition by Serbia of the right of
individual petition took effect. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. The Court notes
that the case had been pending for seven years and nine months on
that date. The case is still pending at first instance, thus being
within the Court's competence ratione temporis for a period of
more than five years and nine months.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
application (see Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000 VII).
Having examined all the material submitted to it, the Court considers
that the Government have not put forward any fact or convincing
argument capable of persuading it to reach a different conclusion in
the present circumstances. Having regard to its case-law on the
subject, the Court considers that the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
- Moreover,
in the light of its findings in respect of Article 6 § 1, as
well as its prior judgments on the issue (see, among many others,
Ilić v. Serbia,
no. 30132/04, 9 October 2007), the Court considers that, at
the relevant time, there was indeed no effective remedy under
domestic law for the applicant's complaint about the length of the
proceedings in question. There has, accordingly, been a violation of
Article 13 of the Convention.
- Relying
on Article 41 of the Convention, the applicant claimed 8,000
euros (EUR) in respect of non-pecuniary damage. The Government left
the matter to the Court's discretion. The Court considers that
the applicant must have sustained some non-pecuniary damage. Ruling
on an equitable basis, it awards award him EUR 2,000 under that head.
- The
applicant also claimed 101,250 dinars (RSD) for the costs and
expenses incurred before the Court. 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 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 600 for the proceedings before the Court.
- 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.
- Furthermore,
having regard to the fact that the proceedings in question are still
pending before the domestic courts the Court considers that the most
appropriate form of redress would be to bring them to a conclusion as
soon as possible, by conducting them in accordance with the
requirements of Article 6 § 1 of the Convention.
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
that there has also been a violation of Article 13 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, the following
sums:
(i)
EUR 2,000 (two thousand euros), plus any tax that may be chargeable,
for the non-pecuniary damage suffered, and
(ii)
EUR 600 (six hundred euros), plus any tax that may be chargeable
to the applicant, for costs and expenses;
(b) that
the amounts specified under (a) shall be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(c) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy
Registrar President
