SECOND SECTION
CASE OF
MOMČILOVIĆ v. SERBIA
(Application no.
23103/07)
JUDGMENT
STRASBOURG
2 April 2013
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 Momčilović v. Serbia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 12 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
23103/07) against the Republic of Serbia 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 Milan Momčilović (“the
applicant”), on 29 May 2007.
The applicant was represented by Mr M. Perišić,
a lawyer practising in Novi Sad. The Serbian Government (“the Government”) were
represented by their Agent, Mr S. Carić.
The applicant alleged that
the Supreme Court, when ruling in his case on 25 June 2007, had not been constituted in accordance with the relevant domestic
law.
On 6 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1940 and lives in Novi Sad.
The facts of the case, as submitted by the parties,
may be summarised as follows.
On 13 April 1990 the applicant lodged a civil
claim with the Novi Sad Municipal Court, seeking damages and the restitution of
certain personal effects from his former employer (“the respondent”).
Following a remittal in 1995, in December 2000
the Municipal Court declined jurisdiction and transferred the case to the Novi
Sad District Court as the competent court of first instance in the matter.
Following another remittal in 2002, the District
Court, by judgment of 30 June 2006, ruled partly in the applicant’s favour.
On 18 January 2007 the Supreme Court of Serbia, acting as a second-instance court, partly upheld and partly reversed the said
judgment on appeal.
On 27 April 2007 the applicant lodged an appeal
on points of law (revizija).
On 25 June 2007 the Supreme Court, sitting as a
panel of five judges, rejected the applicant’s appeal on points of law, referring
to Articles 361 § 2.9, 399 and 405 of the Civil Procedure Act 2004 (see
paragraph 18 below).
The decision of 25 June 2007 was served on the
applicant on 10 September 2007.
II. RELEVANT DOMESTIC LAW
A. Civil Procedure
Act 1977 (Zakon o parničnom postupku; published in the Official
Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY nos. 4/77; 36/77;
6/80; 36/80; 43/82; 72/82; 69/82; 58/84; 74/87; 57/89; 20/90; 27/90; 35/91 and
the Official Gazette of the Federal Republic of Yugoslavia - OG FRY nos. 27/92;
31/93; 24/94 and 12/98)
Article 44 § 4 provided that where a decision at
second instance had been given by the Supreme Court itself, a five-judge
panel of the same court would decide any subsequent appeal on points of law.
B. Civil
Procedure Act 2004 (Zakon o parničnom postupku; published in the Official
Gazette of the Republic of Serbia - OG RS - nos. 125/04 and 111/09)
The Civil Procedure Act 2004 entered into force
on 23 February 2005, thereby repealing the Civil Procedure Act 1977.
Article 38 § 2 of the Act reads as follows:
“The Supreme Court shall decide an appeal on points of law [revizija
ili zahtev za zastitu zakonitosti] lodged against a second-instance
decision of a lower court in a panel composed of five judges.”
Article 38 § 3 provides as follows:
“Where a decision at second instance was given by the Supreme
Court itself, a seven-judge panel of the same court should decide any
subsequent appeal on points of law.”
Articles 361 § 2.9, 399 and 405 established, in
principle, the scope of the Supreme Court’s competency and the relevant issues it
would examine when deciding upon an appeal on points of law.
Article 422 § 10 further provided that a case could
be reopened if the European Court of Human Rights had in the meantime given a
judgment relating to Serbia concerning the same or a similar legal issue.
Article 491 § 4 provides as follows:
“The applicable rules of civil procedure, as regards an appeal
on points of law [revizija] lodged against a decision of a second-instance
court, in the proceedings which had been initiated before the date on which the
current Act entered into force, shall be those rules which were in force prior
to the said date.”
C. Civil Procedure Act 2011 (Zakon o parničnom
postupku; published in OG RS, no. 72/11)
. The Civil
Procedure Act 2011 entered into force on 1 February 2012,
thereby repealing the Civil Procedure Act 2004. Article 426 § 11 of the 2011
Act provides that a case may be reopened if it subsequently becomes possible
for a party in civil proceedings to rely on a judgment of the European Court of
Human Rights finding a violation of a human right, which could have resulted in
a more favourable decision in the domestic proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE COMPOSITION OF THE SUPREME COURT’S
BENCH
In addition to his initial complaints (see
paragraphs 34-37 below), the applicant in a letter of 24 October 2007 raised a
new complaint that the court which had ruled in his case on 25 June 2007, in
the last instance, had not been constituted in accordance with the relevant
domestic legislation. He alleged a breach of Article 6 §
1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent and impartial
tribunal established by law.”
A. Admissibility
. The
Government raised the question of whether the applicant’s additional
complaint had been made in time.
. The
applicant submitted that he had fully complied with Article 35 § 1 of the
Convention.
The Court observes that the applicant’s
complaint concerns the composition of the Supreme Court’s bench when it adopted
its judgment of 25 June 2007 in the last instance. The judgment was served on
the applicant on 10 September 2007. No effective legal remedy was available to
the applicant to challenge it. The first time the
applicant complained about the court’s bench was in his correspondence with the
Court of 24 October 2007, less than six months after the date of receipt
of that judgment. The Court considers therefore that the
Government’s objections must be rejected.
The Court notes, moreover, that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It is likewise not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant complained that the composition of
the bench of the Supreme Court when ruling in his case on 25 June 2007 had been
unlawful: he argued, in particular, that the Supreme Court had adjudicated in
his case at third instance in a panel of five judges, whilst it should have
been composed of seven.
The Government maintained that there had been no
violation of Article 6 § 1 of the Convention. Relying on Article 491 § 4 of the
Civil Procedure Act 2004 (see paragraph 20 above), they contended that, given the
fact that the relevant domestic proceedings had been initiated in 1990, the legislation
applicable to the proceedings was Article 44 § 4 of the Civil Procedure Act
1977 (see paragraph 14 above). The panel had therefore been composed of the
correct number of judges as prescribed by the relevant law in force at the
material time.
The Court reiterates that the phrase “established
by law” in Article 6 § 1 also means “established in accordance with law” (see,
for instance, Rossi v. France, no. 11879/85, Commission decision of 6
December 1989, Decisions and Reports 63, p.105). In addition, the phrase
“established by law” covers not only the legal basis for the very existence of
a “tribunal” but also compliance by the tribunal with the particular rules that
govern it (see Sokurenko
and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July
2006) and the composition of the bench in each case (see Buscarini
v. San Marino (dec.), no. 31657/96, 4 May 2000, and Posokhov v. Russia, no. 63486/00, § 39, ECHR 2003-IV).
The Court further reiterates that, in principle,
a violation by a tribunal of domestic legal provisions relating to the
establishment and competence of judicial organs gives rise to a violation of
Article 6 § 1 (see DMD GROUP, a.s. v. Slovakia, no. 19334/03, § 61, 5 October 2010, and Šorgić
v. Serbia, no. 34973/06, § 63,
3 November 2011). The Court may therefore examine whether the domestic
law has been complied with in this regard.
Turning to the present case, the Court notes, at
the outset, that while Article 491 § 4 of Civil Procedure Act 2004 (see
paragraph 20 above) may indeed be interpreted in various ways as regards which
version of the Act (1977 or 2004) is applicable, there is no legal basis for applying
one Act to the part of the case concerning the composition of the bench and another
Act to the part of the case concerning the assessment of the admissibility of the
appeal on points of law. Reiterating that it is primarily for the national
authorities, notably the courts, to resolve problems of interpretation of
domestic legislation (see, mutatis mutandis, Edificaciones March
Gallego S.A. v. Spain, 19 February 1998, § 33, Reports of Judgments and
Decisions 1998-I, and Casado Coca v. Spain, 24 February 1994, §43,
Series A no. 285-A), the Court notes that the Supreme Court applied the Civil
Procedure Act 2004 when ruling on the admissibility of the applicant’s appeal
on points of law (see paragraph 12 above) and it sees no reason to call into
question this interpretation.
In that connection, the Court observes that Article
38 § 3 of the Civil Procedure Act 2004 provided that
the Supreme Court had to decide an appeal on points of law lodged against one
of its own decisions rendered in its capacity as a second-instance court, in a
panel composed of seven judges (see paragraph 17 above). In the present case,
however, the Supreme Court dealt with the applicant’s appeal on points of law lodged
against its own appellate judgment in a panel of five judges (see paragraph 12
above). The Court considers therefore that the bench of the Supreme Court which
gave its decision at third instance was not composed in accordance with the domestic
law that the Supreme Court found to be in force at the material time, namely
the Civil Procedure Act 2004.
The foregoing
considerations are sufficient to enable the Court to conclude that the Supreme
Court’s significant deviation from the domestic procedure
amounted to a breach of the Convention requirement for the applicant’s
claim to be determined by a “tribunal established by law”.
Accordingly, there has been a violation of Article 6 § 1 of the
Convention in this respect.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying on Article 6 § 1, the applicant further
complained about the length of the civil proceedings in his case. The Court
observes that the proceedings in question appear to have been protracted, having
commenced in 1990 and concluded on 25 June 2007. However, Serbia did not ratify the Convention until 3 March 2004, so the proceedings in the applicant’s case
were within the Court’s competence ratione temporis for only three years
and three months, during which time his claims were examined at three levels of
jurisdiction. This complaint must therefore be declared inadmissible as
manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the
Convention.
The applicant also complained under Article 1 of
Protocol No. 1 mainly of the manner in which the Supreme Court in second and
third instance interpreted and applied domestic law to his detriment. The Court
reiterates that the function of the domestic courts in disputes between private
parties is to determine the nature and extent of their mutual duties and
obligations, with the inevitable consequence that one party may ultimately be
unsuccessful in the litigation in question (see Investylia Public Company
Limited v. Cyprus (dec.), no. 24321/05, 17 September 2009 and the
authorities cited therein). The Court has no general competence to substitute
its own assessment of facts or application of the law for that of the national
courts, its role being rather to ensure that the
decisions of those courts are not flawed by arbitrariness or otherwise
manifestly unreasonable (Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, 11 January 2007).
Turning to the present case, the Court observes
that the applicant was wholly able to present his case
before the three judicial instances. The impugned Supreme Court’s judgments are
fully and well reasoned and nothing in the case file indicates that these
decisions were arbitrary. The fact that the domestic judicial authorities provided
a forum for the determination of a private-law dispute between the two
claimants, in which the applicant was unsuccessful, does not necessarily give
rise to an interference by the State with property rights under Article 1 of
Protocol No. 1 to the Convention. Even assuming that the applicant’s
“claim” is “sufficiently established to be enforceable” to
attract the guarantees of Article 1 of Protocol No. 1 (see, among many
authorities, Stran Greek Refineries and Stratis Andreadis v. Greece, 9
December 1994, § 59, Series A no. 301-B), the Court finds,
in view of the above considerations, that the applicant’s complaint under this
provision is manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 § 4 of the Convention (see,
mutatis mutandis, Breierova and Others v. the Czech Republic
(dec.), no. 57321/00, 8 October 2002 and Melnychuk v. Ukraine (dec.),
no. 28743/03, ECHR 2005-IX).
Lastly, the applicant complained under Article
13 of the Convention that there was no effective remedy available to him in
respect of the matters complained of above (see paragraphs 34 and 35). The
Court reiterates that Article 13 only applies where an individual has an
“arguable claim” to be the victim of a violation of a Convention right
(see Boyle and Rice v. the United Kingdom, 27 April 1988, §
52, Series A no. 131). In view of its findings above, the Court
concludes that the applicant had no such “arguable claim” and Article 13 is,
therefore, not applicable. It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of
the Convention.
III. 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 15,248 euros (EUR) in
respect of pecuniary damage, which appears to correspond to the value in
domestic terms of the subject matter of his original claim. He also claimed EUR
20,000 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. The Court, however, reiterates that the most appropriate
form of redress for a violation of Article 6 § 1 would be to ensure that the
applicant, as far as possible, is put in the position in which he would have
been had this provision not been disregarded. Consequently, it considers that
the most appropriate form of redress would be to reconsider the applicant’s
appeal on points of law in accordance with the requirements of Article 6 § 1 of
the Convention, should the applicant so request (see, paragraph 33 above, and, mutatis
mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October
2003).
On the other hand, the
Court accepts that the applicant suffered damage of a non-pecuniary nature as a
result of his appeal being decided by an unlawfully constituted court. Making
its assessment on an equitable basis and having regard to the circumstances of
the case, the Court awards the applicant EUR 3,000 on that account.
B. Costs and expenses
The applicant also claimed EUR 1,000 for the
costs and expenses incurred before the Court.
The Government contested this claim.
In accordance with 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
are reasonable as to 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 documents in its possession and the above criteria, the
Court considers it reasonable to award the applicant the sum of EUR 850 for the
costs and expenses incurred before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the applicant’s complaint
concerning the composition of the bench of the Supreme Court admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention on account of the unlawful composition of the Supreme
Court’s bench which deliberated at third instance in the applicant’s case at domestic
level;
3. 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 amounts, to be
converted into the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros) plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 850 (eight hundred and fifty euros), plus
any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
