In the case of Sekulić and Kučević 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 24 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in two applications (nos. 28686/06
and 50135/06) 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 two Serbian nationals, Ms Gvozdena Sekulić
(“the first applicant”) and Ms Sabaheta Kučević (“the second
applicant”), on 20 June 2006 and 4 December 2006, respectively.
The first applicant was represented by Ms M.
Popović and Ms Š. Dolovac, while the second applicant was
represented by Ms R. Garibović, all lawyers practising in Novi
Pazar. The Serbian Government (“the Government”) were represented by their
Agent, Mr S. Carić.
The applicants alleged that the State had
violated their rights under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 thereto, due to its failure to enforce final domestic judgments
rendered in their favour. The first applicant, in addition, alleged that she
had had no effective domestic remedy at her disposal in that respect.
On 17 August 2009 the applications were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The facts of the cases, as submitted by the
parties, may be summarised as follows.
The first and second applicants were born in 1952
and 1965 respectively, and live in Novi Pazar.
The first applicant was employed by Raška Holding AD - Pamučna predionica DOO (“the first
debtor”), and the second applicant was employed by Raška
Holding AD - Dorada tkanina DOO (“the second debtor”). The debtors are limited
liability companies owned by the “Raška Holding Kompanija” (“the mother
company”).
On 14 May 1996 and 15 May 1996 respectively, the
applicants were placed on compulsory paid leave until such time as normal
production could be resumed and the said debtors’ business performance had improved
sufficiently.
Whilst on this leave, in accordance with the
relevant domestic legislation, the applicants were entitled to a significantly
reduced monthly income, as well as the payment of their pension, disability and
other social security contributions.
Since the debtors failed to fulfil these
obligations, the applicants brought numerous separate civil claims before the
Municipal Court (Opštinski sud) in Novi Pazar (hereinafter “the
Municipal Court”).
A. As regards the first
applicant
1. The first set of proceedings
On 26 February 2004 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits (garantovana
zarada) due from 15 May 1996 to 1 June 2001 (RSD 13,370 in total[1]; EUR 190 at the relevant
time[2]), plus statutory
interest;
ii. the monthly paid leave benefits (minimalna
zarada) due from 1 June 2001 to 31 December 2003 (RSD 120,822 in total; EUR
1,725), plus statutory interest;
iii. the pension and disability insurance
contributions (doprinosi za penzijsko i invalidsko osiguranje) due for
the same periods; and
iii. RSD 6,800 (EUR 95) for legal costs.
On 15 March 2004 this judgment became final.
On 18 March 2004, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the paid leave benefits and costs, at the same time awarding the first
applicant an additional amount of RSD 1,800 (EUR 25) for the enforcement costs.
It was further specified that the judgment would be enforced by means of a bank
transfer or through auctioning the first debtor’s specific movable and/or
immovable assets.
2. The second set of proceedings
On 17 June 2004 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits (minimalna
zarada) due from 1 January 2004 to 30 April 2004 (RSD 21,576 in total; EUR 300),
plus statutory interest; and
ii. RSD 7,800 (EUR 110) for legal costs.
On 12 July 2004 this judgment became final.
On 14 July 2004, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order, at the
same time awarding the first applicant the additional amount of RSD 1,200 (EUR 15)
for the enforcement costs. It was further specified that the judgment would be
enforced by means of a bank transfer or through auctioning the first debtor’s
specific movable and/or immovable assets.
3. The third set of proceedings
On 1 November 2004 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits (minimalna zarada) due
for the months of May to October 2004 (RSD 35,024 in total; EUR 460), plus
statutory interest;
ii. the pension and disability insurance
contributions (doprinosi za penzijsko i invalidsko osiguranje) due for
the period from 1 May 2004 to 30 October 2004; and
iii. RSD 7,800 (EUR 100) for legal costs.
On 23 March 2005 the part of the judgment concerning
the monthly paid leave benefits and the pension and disability insurance
contributions became final. The part of the judgment relating to the costs of
the civil proceedings became final on an unspecified date in 2005.
On 23 June 2005, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the monthly paid leave benefits, and the pension and disability
insurance contributions, at the same time awarding the first applicant an
additional amount of RSD 1,500 (EUR 20) in respect of the enforcement costs.
On 24 June 2005 the Municipal Court issued an enforcement
order in respect of the costs and awarded the first applicant an additional
amount of RSD 2,500 (EUR 30) in respect of the enforcement costs.
Both enforcement orders specified that the
judgment would be enforced by means of a bank transfer or through auctioning
the first debtor’s specific movable and/or immovable assets.
4. The fourth set of proceedings
On 10 March 2005 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits due from 1 November
2004 to 31 January 2005 (RSD 19,040 in total; EUR 235), plus statutory
interest;
ii. the pension and disability insurance
contributions due for the same period; and
iii. RSD 9,750 (EUR 120) for legal costs.
This judgment became final on 14 December 2005.
On 5 January 2006, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order,
specifying that the judgment would be enforced by means of a bank transfer or
through auctioning the first debtor’s specific movable and/or immovable assets.
No additional enforcement costs were awarded.
5. The fifth set of proceedings
On 12 October 2005 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits due from 1 February
2005 to 30 June 2005 (RSD 33,264 in total; EUR 390), plus statutory interest;
ii. the pension and disability insurance
contributions due for the same period; and
iii. RSD 9,750 (EUR 115) for legal costs.
This judgment became final on 6 December 2005.
On 5 January 2006, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order,
specifying that the judgment would be enforced by means of a bank transfer or
through auctioning the first debtor’s specific movable and/or immovable assets.
No additional enforcement costs were awarded.
6. The sixth set of proceedings
On 21 February 2006 the Municipal Court ruled in
favour of the first applicant and ordered her employer to pay her:
i. the monthly paid leave benefits due from 1 July
2005 to 31 December 2005 (RSD 43,080 in total; EUR 495), plus statutory
interest;
ii. the pension and disability insurance
contributions due for the same period; and
iii. RSD 5,400 (EUR 60) for legal costs.
This judgment became final on 23 March 2006.
On 3 April 2006, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the paid leave benefits and costs. It was further specified that the
judgment would be enforced by means of a bank transfer or through auctioning
the first debtor’s specific movable and/or immovable assets. No additional enforcement
costs were awarded.
7. The seventh set of proceedings
On 19 October 2006 the Municipal Court ruled in
favour of the first applicant and ordered her former employer to pay her:
i. the monthly paid leave benefits due for the
months of January to April 2006 (RSD 31,280 in total; EUR 385), plus statutory
interest;
ii. the pension and disability insurance
contributions due for the period from 1 January 2006 to 1 May 2006; and
iii. RSD 11,700 (EUR 145) for legal costs.
This judgment became final on 13 November 2006.
On 27 November 2006, upon the first applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the paid leave benefits and costs, specifying that the judgment
would be enforced by means of a bank transfer or through auctioning the first
debtor’s specific movable and/or immovable assets. No additional enforcement
costs were awarded.
B. As regards the second applicant
1. The first set of proceedings
On 19 January 2005 the Municipal Court ruled in
favour of the second applicant. On 1 February 2005 the Municipal Court amended
this judgment in respect of the due amounts, and ultimately ordered her
employer to pay her:
i. the monthly paid leave benefits (minimalna
zarada) due from 1 June 2004 to 18 November 2004 (RSD 37,326 in total; EUR 335),
plus statutory interest;
ii. the pension and disability insurance
contributions (doprinosi za penzijsko i invalidsko osiguranje) due for
the same period; and
iii. RSD 9,750 (EUR 90) for legal costs.
On 21 February 2005 this judgment became final.
On 26 September 2005, upon the second applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the paid leave benefits and costs. It was further specified that the
judgment was to be enforced by means of a bank transfer or through auctioning
the second debtor’s specific movable and/or immovable assets. It is unclear
whether any costs were awarded in respect of the enforcement proceedings.
2. The second set of proceedings
On 28 September 2005 the Municipal Court ruled
in favour of the second applicant and ordered her employer to pay her:
i. the monthly paid leave benefits due from 1 December
2004 to 30 June 2005 (RSD 46,178 in total; EUR 545), plus statutory interest;
ii. the monthly paid leave benefits due from 1 July
2005 to 28 September 2005 in the amount of the minimum wage, as per the
official data, plus statutory interest;
iii. the pension and disability insurance
contributions due for the same periods; and
iv. RSD 9,750 (EUR 115) for legal costs.
This judgment became final on 7 December 2005.
On 27 December 2005, upon the second applicant’s
request to that effect, the Municipal Court issued an enforcement order in
respect of the paid leave benefits and costs, and awarded the applicant an
additional amount of RSD 2,250 (EUR 25) in respect of the enforcement costs. In
was further specified that the judgment was to be enforced by means of a bank
transfer or through auctioning the second debtor’s specific movable and/or
immovable assets.
C. Termination of the applicants’ employment
On 5 November 2004 the debtors’ mother company (see
paragraph 7 above) proposed the Redundant Employees Programme (Program
rešavanja viška zaposlenih - hereinafter “the redundancy programme”). The
redundancy programme set out the criteria for determining redundant employees
and, once declared redundant, provided them with two options for benefits: (i)
to receive a single redundancy payment from the employer (jednokratna novčana
naknada); or (ii) to receive a severance payment and claim monthly
unemployment benefits from the social security of the State (otpremnina i
novčana naknada). These benefits were provided for all employees,
regardless of whether they had any other outstanding claim towards the company.
On 7 December 2005 and 8 December 2005, the
first and the second applicant, respectively, opted for the single redundancy
payment.
On 16 October 2006 and 4 September 2006 the
mother company issued decisions terminating the first and the second applicant’s
employment as of 11 October 2006 and 12 September 2006, respectively.
Consequently, as of that date all the rights and obligations arising from the
applicants’ employment were terminated.
On an unspecified date the first applicant, and
on 12 September 2006 the second applicant signed an agreement with their
employer regulating mutual outstanding debts on account of loans or other
claims, and on account of due salaries and pension and disability
contributions, respectively. Without specifying any amount of the outstanding
debts, the agreement provided for, inter alia, the employer’s obligation
to pay its outstanding debt within six months, failing which the applicants were
entitled to lodge a civil claim for compensation.
On 11 October 2006 and 12 October 2006 the
mother company paid to the first applicant and the second applicant each RSD
299,700 (EUR 3,700) on account of the redundancy payment.
On 9 February 2007 and 9 October 2007 the due
pension and disability contributions were paid.
D. The status of the debtors
On 5 November 2004 the Privatization Agency (Agencija
za privatizaciju) initiated the restructuring of the mother company, which
is still ongoing. As of July 2013, the debtors still consisted of predominantly
socially-owned and State-owned capital.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice is set
out in the Court’s judgments of R. Kačapor and Others v. Serbia (nos.
2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008, §§ 57-82);
Vlahović v. Serbia (no. 42619/04, §§37-47, 16 December 2008); Crnišanin and Others v. Serbia (nos.
35835/05, 43548/05, 43569/05 and 36986/06, 13 January 2009, §§100-104); Rašković
and Milunović v. Serbia, nos. 1789/07 and 28058/07, §65, 31 May 2011; and EVT Company
v. Serbia (no. 3102/05, §§ 26 and 27, 21 June 2007).
THE LAW
I. JOINDER OF THE APPLICATIONS
The Court considers that, in accordance with
Rule 42 § 1 of the Rules of Court, the applications should be joined, given
their similar factual and legal background.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
NO. 1 TO THE CONVENTION
The applicants complained that the State had
infringed their right to the peaceful enjoyment of their possessions, as
guaranteed by Article 1 of Protocol No. 1 to the Convention, which in its
relevant part, reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.”
A. Admissibility
The Court notes that the applications are not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
It further notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
The Government submitted that there had been no
violation of Article 1 of Protocol No. 1 to the Convention. Apart from the
arguments which have already been discussed by the Court in similar cases (see R.
Kačapor and Others, and Vlahović, both cited above), the
Government also submitted that since the restructuring had been ordered in the
public interest, the enforcement of the judgments had been suspended in
accordance with the law, as well as with the Court’s case-law, since Article 1
of Protocol No. 1 did not guarantee a right to full compensation in all
circumstances (Lithgow and Others v. the United Kingdom, 8 July 1986, § 121,
Series A no. 102). Furthermore, they maintained that by accepting the
redundancy payment from the programme, the applicants in the present cases had
waived the rights arising from the judgments issued in their favour, as was the
case with the third applicant in the Grišević case (Grišević
and Others v. Serbia, nos. 16909/06, 38989/06 and 39235/06, § 52, 21 July 2009), and thus had no pecuniary entitlement.
The applicants reaffirmed their complaints. In
particular, they submitted that they had never waived their rights arising from
the judgments, and that in accordance with the practice of the Constitutional Court, they were still entitled to enjoy the rights arising from the final
judgments in their cases, even though they had been granted the rights arising
from the redundancy programme.
Turning to the present case, the Court notes
that the respondent State has consistently been held responsible for the
non-enforcement of the judgments rendered against companies predominantly
comprised of socially-owned capital (see, for example, R. Kačapor and
Others, cited above; and Grišević and Others, cited above),
regardless of whether such companies were in the process of liquidation or
reorganisation (see, for example, Vlahović, cited above, §§ 74-77
and 81; and Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05,
43569/05 and 36986/06, §§ 124 and 133, 13 January 2009), it being understood
that the same conclusion applies, a fortiori, in respect of the companies
where there has been a subsequent change in their respective capital share
structure resulting in the predominance of the State-owned and socially-owned
capital. The Court finds no particular circumstances in the present cases to
depart from this conclusion.
Furthermore, the Court has already considered
practically identical circumstances in Rašković and Milunović (cited
above, §§ 69-72), in which it found, inter alia, a violation of Article
6 of the Convention and Article 1 of Protocol No. 1. In particular, it has been
held that the non-enforcement of judgments rendered against socially-owned
companies, which is the subject matter of the present cases, is clearly
distinguishable from that in Lithgow and Others, to which the
Government referred (see paragraph 56 above), and which concerned compensation
for nationalised property.
The Court considers that the applicants’
participation in the redundancy programme did not deprive them of their
entitlement arising from the final judgments rendered in their favour given
that, contrary to the Grišević case, they have never waived their rights
arising from the domestic judgments. The Government certainly submitted no
evidence to the contrary. Therefore, the Court concludes that the final
judgments rendered in the applicants’ favour continue to represent a claim for
the purposes of Article 1 of Protocol No. 1 to the Convention, while the
prolonged failure of the Serbian authorities to enforce those judgments cannot
be seen as being in accordance with the domestic law.
In the light of the above, the Court finds that
there has been a breach of Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION ARTICLE 6 § 1 OF THE CONVENTION
. Both
applicants also complained under Article 6 § 1 of the Convention about the
respondent State’s failure to enforce the final judgments rendered in their
favour.
. Article
6 § 1 of the Convention in its relevant part reads as follows:
“In the determination of his [or her] civil rights and
obligations ... everyone is entitled to a fair hearing ... by [a] ... tribunal
...”
A. Admissibility
The Court notes that these complaints are linked
to those examined above and must, therefore, likewise be declared admissible.
B. Merits
. The
Government submitted that the Court should take into consideration only
those parts of the applicants’ respective enforcement proceedings which were
pending as of 3 March 2004, which is when the Convention entered into force in respect
of Serbia.
The Court notes that the first judgments were
rendered in favour of the first and the second applicant on 26 February 2004
and 19 January 2005, while the relevant enforcement orders were issued on 18 March
2004 and 26 September 2005 respectively, which are the earliest dates from
which the period of non-enforcement could be observed.
The Court has already held that the State is
responsible for the failure to enforce final domestic judgments rendered
against socially-owned companies (see R. Kačapor and Others, cited
above, §§ 115-116; Crnišanin and Others, cited above, § 123; and Grišević and Others, cited above, §§
68-69). It finds no reason to depart from this conclusion in the present case given
that the debtors are comprised of both State and socially-owned capital (see
paragraph 46 above) and the period of non-enforcement has so far lasted between
eight years and nine years and six months, respectively. The Serbian
authorities have thus not taken the necessary measures to enforce the judgments
in question and have not provided any convincing reasons for that failure.
Accordingly, there has also been a violation of Article 6 § 1 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The first applicant made the same complaints
under Article 13 of the Convention.
Having regard to its finding under Article 6 of
the Convention (see paragraph 62 above) and Article 1 of Protocol No. 1 (see
paragraphs 56 above), the Court considers that it is not necessary to examine separately
the admissibility or the merits of the same issue under Article 13 of the
Convention (see, for example, Ilić v. Serbia, no. 30132/04, § 106,
9 October 2007; Kin-Štib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).
IV. 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, costs and expenses
The applicants requested that the State be ordered
to pay, from its own funds, the sums awarded by the domestic courts in respect
of the monthly paid leave benefits for the period from 14 May 1996 to 1 May
2006, and from 1 June 2004 to 12 September 2006, respectively, plus the costs
of the domestic civil and enforcement proceedings. The first applicant claimed
EUR 300 for the costs and expenses incurred in the proceedings before this
Court. The second applicant also claimed such costs, but did not specify their
exact amount, leaving it to the Court’s discretion.
The Government maintained that the payment received
by the applicants through the redundancy programme should be deducted from the
final award under this head. The Government further submitted that the pension
and disability insurance contributions for the period of 76 months and 13 days
and for the period of 108 months, due to the first and the second applicant
respectively, should be deducted from the final award under this head.
Considering the Government’s argument, and having
regard to the violations found in the present case and its own case-law (see R.
Kačapor and Others, cited above, §§ 123-126, and Crnišanin and Others, cited above, §§
137-139), in particular bearing in mind the different nature of the awards established
by the relevant domestic judgments and the redundancy programme (see paragraph 55
above), the Court considers that the Government must pay the applicants the
sums as awarded in the domestic judgments (see paragraphs 11, 14, 17, 22, 25, 28,
31, 34 and 37), as well as the established costs of the enforcement proceedings
(see paragraphs 13, 16, 19, 20 and 39 above), less any and all payments that
were paid to them on those bases in the meantime (see, mutatis mutandis, R. Kačapor and Others v. Serbia, §§ 123-126,
and Crnišanin and Others v. Serbia, §§ 137-139, both cited above).
. As
regards the non-pecuniary damage as well as costs and expenses incurred before
this Court, the Court considers it reasonable and equitable to award EUR 2,000
to each of the applicants under these heads.
B. 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,
1. Decides to
join the applications;
2. Declares the complaints under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 concerning the
non-enforcement of the final domestic judgments admissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
5. Holds that there is no need to examine separately the
admissibility or the merits of the complaint made under Article 13 of the
Convention;
6. Holds,
(a) that the respondent State is to pay to the
applicants, from its own funds and within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of
the Convention, the amounts awarded in the final domestic judgments as well as
the enforcement costs less any and all payments that were paid to them on those
bases in the meantime;
(b) that the respondent State is to pay to each of
the applicants, within the same period, EUR 2,000 (two thousand euros) in
respect of non-pecuniary damage, costs and expenses, plus any tax that may be
chargeable on this amount, which is to be converted into the 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;
7. Dismisses, the
remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
