RADOVANOVIC v. SERBIA - 9302/11 - Committee Judgment [2014] ECHR 827 (22 July 2014)

In the case of Radovanović v. Serbia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Ján Šikuta, President,
          Dragoljub Popović,
          Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 1 July 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 9302/11) 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 Branislav Radovanović (“the applicant”), on 14 December 2010.

2. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.

3. On 30 March 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1957 and lives in Šabac.

5. The applicant was employed by “Zorka-mineralna đubriva” AD, a socially/State-owned company based in Šabac (hereinafter - “the debtor”).

A. The first set of proceedings

6. On 10 April 2001 the Šabac Municipal Court, by a court order, gave effect to a settlement made by the applicant and the debtor. According to that settlement the debtor had to pay the applicant certain sums in respect of salary arrears and costs of proceedings.

7. On 25 March 2003 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court.

8. On the same date the court allowed the application and issued an enforcement order.

9. On 4 April 2003 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

10. On 11 May 2007 the applicant requested the court to continue the enforcement proceedings.

11. On 6 July 2007 the court continued the enforcement proceedings.

12. On 24 June 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring.

13. On 26 March 2010 the applicant requested the court once again to continue the enforcement proceedings.

14. On 27 December 2011 the court considered the request of 26 March 2010 to be a fresh application for the enforcement of the decision of 10 April 2001 and ordered the applicant to submit again a copy of that decision.

15. As the applicant failed to comply with this this request on 30 January 2012 the court terminated the enforcement.

B. The second set of proceedings

16. On 3 July 2003 the Šabac Municipal Court ruled in the favour of the applicant and ordered the debtor to pay him certain sums in respect of salary arrears and costs of proceedings. This judgment became final on the same date.

17. On 29 September 2004 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court.

18. On 30 September 2004 the court allowed the application and issued an enforcement order.

19. On 4 January 2005 the enforcement proceedings were stayed because the debtor was undergoing restructuring.

20. On 11 May 2007 the applicant requested the court to continue the enforcement proceedings.

21. On 4 October 2007 the court continued the enforcement proceedings.

22. On 3 March 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring.

C. The debtor’s status

23. On 10 July 2002 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process. The restructuring of the debtor is still ongoing.

II. RELEVANT DOMESTIC LAW

24. The relevant domestic law was set out in the Court’s judgments of EVT Company v. Serbia (no. 3102/05, §§ 26 and 27, 21 June 2007); R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 57-82, 15 January 2008); 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, §§ 100-104, 13 January 2009); Adamović v. Serbia, (no. 41703/06, §§ 17-22, 2 October 2012); and Marinković v. Serbia ((dec.) no. 5353/11, §§ 26-44, 29 January 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

25. The applicant complained about the respondent State’s failure to enforce two final decisions rendered in his favour against the debtor. He relied on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 1 of Protocol No. 1

“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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

1. Exhaustion of domestic remedies

26. The Government submitted that the applicant should have lodged an appeal against the decisions of the Šabac Municipal Court of 3 March 2008 (see paragraph 22 above) and of 30 January 2012 (see paragraph 15 above). The Government further argued that the applicant should have lodged a constitutional appeal.

27. In relation to the Government’s first argument, the Court reiterates that, in principle, when an applicant obtains a final judgment against a State-controlled entity, he or she is only required to file a request for the enforcement of that judgment to the competent court or, in case of liquidation or insolvency proceedings against the debtor, to report his or her claims to the administration of the debtor (see Lolić v. Serbia, no. 44095/06, § 26, 22 October 2013). It further observes that the applicant lodged applications for the enforcement of final court decisions of 10 April 2001 and 3 July 2003 on 25 March 2003 and 29 September 2004 respectively (see paragraphs 7 and 17 above) The domestic court allowed the applications on 25 March 2003 and 30 September 2004 respectively (see paragraphs 8 and 18 above). Finally, it notes that the domestic law applicable at the relevant time provided that a company undergoing restructuring could not be subjected to enforcement proceedings. The Court therefore does not accept that appeals against the decisions of3 March 2008 and 30 January 2012 could have been successful.

28. In relation to the Government’s second argument, it is observed that this Court has already held that a constitutional appeal cannot be considered effective in cases lodged before 4 October 2012 involving the respondent State’s liability for the non-enforcement of judgments against socially/State-owned companies undergoing restructuring (see Marinković, cited above, § 58 and Ferizović v. Serbia (dec.), no. 65713/13, 26 November 2013). The Court sees no reason to hold otherwise in the present case.

2. Compatibility ratione personae

29. The Government argued that the State could not be held responsible for the debtor in the present case which was a separate legal entity not controlled by the State.

30. The Court has already held in comparable cases against Serbia that the State is liable for debts of socially/State-owned companies (see, for example, R. Kačapor and Others, cited above, §§ 97-98, Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, § 71, 31 May 2011, and Adamović, cited above, § 31).The Court sees no reason to depart from that jurisprudence in the present case. Consequently, this argument must be rejected.

3. Conclusion

31. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

32. The Court observes that it has frequently found violations of Article 6 of the Convention and/or Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to those raised in the present case (see Crnišanin and Others, cited above, §§ 123-124 and §§ 133-134; Rašković and Milunović, cited above, § 79).

33. 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 cases. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

34. The Court does not find it necessary in the circumstances of this case to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis, Kin-Stib and Majkić v. Serbia, no. 12312/05, § 90, 20 April 2010).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. 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

36. The applicant did not claim any specific amount in respect of just satisfaction but left it to the Court’s discretion to fix an appropriate award.

37. It is observed that a judgment in which the Court finds a violation of the Convention or of its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found (see Apostol v. Georgia, no.40765/02, §§ 71-73, ECHR 2006, Marčić and Others, cited above, §§ 64-65, and Pralica v. Bosnia and Herzegovina, no. 38945/05, § 19, 27 January 2009).

38. Having regard to its finding in the instant case, and without prejudice to any other measures which may be deemed necessary, the Court considers that the respondent State must secure the enforcement of the final domestic decisions under consideration in this case by way of paying the applicant, from its own funds, the sums awarded in the said final decisions, less any amounts which may have already been paid in respect of the said decisions.

39. The Court further takes the view that the applicants have suffered some non-pecuniary damage as a result of the violations found which cannot be made good by the Court’s finding of a violation alone (see Rašković and Milunović, cited above, § 86). Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable and equitable to award EUR 2,000 to the applicant. This sum is to cover any non-pecuniary damage, as well as costs and expenses (see Stošić v. Serbia, no. 64931/10, § 68, 1 October 2013).

B. Default interest

40. 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 application admissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention;

4. Holds

(a) that the respondent State shall, from its own funds and within three months, pay the applicant, the sums awarded in the final decisions under consideration in the present case, less any amounts which may have already been paid on the basis of the said decisions;

(b) that the respondent State is to pay the applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage 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.

Done in English, and notified in writing on 22 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ján Šikuta Deputy Registrar President

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