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SECOND
SECTION
CASE OF BULOVIĆ v. SERBIA
(Application
no. 14145/04)
JUDGMENT
STRASBOURG
1
April 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 Bulović 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
deliberated in private on 11 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14145/04) 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
Radmila Bulović (“the
applicant”), on 5 April 2004.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- On
8 June 2004 the applicant's guardian authorised the applicant's
father, Mr R. Zivanović, to represent the applicant 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
2 May 2007 the Court decided to give priority to the application, in
accordance with Rule 41 of the Rules of Court, as well as to
communicate it to the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on its admissibility and merits at the
same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Subotica.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The first set of civil proceedings
- On
9 March 1994 the Municipal Court in Sombor (Opštinski sud u
Somboru) ruled in favour of the applicant and ordered S.B., her
former husband, to pay her a monthly maintenance allowance in the
amount of 25% of the minimum salary in Serbia, starting from 10
December 1993, plus the arrears of that allowance which had already
accrued, together with statutory interest.
- By
31 May 1994 this judgment had become final.
B. The enforcement proceedings and the second set of
civil proceedings
- On
9 September 1996 the applicant filed a request for the enforcement of
the above judgment and specified that the amount of maintenance due
was 5,226 Yugoslav Dinars plus statutory interest. She proposed, in
particular, that this enforcement be carried out through the
auctioning of the debtors movable assets.
- On
12 September 1996 the Municipal Court in Sombor (“the Municipal
Court”) accepted the applicant's request and issued an
enforcement order.
- On
26 September 1996 S.B. filed a complaint against this order, stating
that it was not clear how the applicant had calculated the exact
amount of the maintenance sought.
- On
3 February 1998 the Municipal Court instructed S.B. to institute
separate civil proceedings wherein he could request that the proposed
enforcement be declared “inadmissible” (nedopušteno).
- On
13 April 1998 S.B. filed a claim to this effect.
- On
27 November 1998 the Municipal Court ordered the stay of the
enforcement proceedings until the conclusion of the separate civil
suit.
- On
23 December 2002 the Municipal Court resumed the enforcement
proceedings ex officio, having found, inter alia, that
as of 30 June 1999 the separate civil suit had itself been
suspended pending the outcome of another case.
- On
25 February 2003 S.B. again requested that the enforcement
proceedings be stayed, given the subsequent re-opening of the
separate civil suit.
- On
25 July 2003 the Social Care Centre appointed a temporary guardian to
act on behalf of the applicant, who had in the meantime been stripped
of her legal capacity.
- On
2 December 2003 the applicant's guardian requested that the
enforcement proceedings be continued and stated that the separate
civil claim filed by S.B. had been dismissed.
- On
6 April 2004 the Municipal Court rejected the request for the stay of
the enforcement proceedings filed on 25 February 2003.
- On
14 April 2004 S.B. lodged a complaint against this decision.
- On
25 October 2006 the Municipal Court noted, in an internal document,
that the entire enforcement file had, by mistake, been placed in
another case file, which was why the complaint of 14 April 2004 had
not yet been considered.
- On
26 October 2006 the three-judge panel of the Municipal Court rejected
this complaint and upheld the decision of 6 April 2004.
- On
1 March 2007 the bailiffs attempted to enter S.B.'s home in order
seize his movable assets. They were, however, apparently unable to do
so as the “premises were locked”.
- On
27 April 2007 S.B. informed the bailiffs that he had, in the
meantime, fully covered his debt to the applicant.
- On
17 May 2007 the applicant withdrew her enforcement request filed with
the Municipal Court, stating that S.B. had paid his debt with costs
and interest.
- On
the same date the applicant signed a separate statement to the same
effect.
- On
23 May 2007 the President of the Municipal Court sent a letter to the
applicant's lawyer which read as follows:
“As regards ... [your client's] ... enforcement
case[,] ... we would like to apologise for ... [its] ... long
duration, ... for which there are several reasons such as ... [her]
... failure to appear at scheduled hearings, the lawful stay of these
proceedings which had lasted for five years, the ... [time needed to
appoint] ... a guardian ... and the unjustifiably long time which the
court took to decide in respect of the complaint ... [filed by S.B.]
... against the ... [court's] ... decision of 6 April 2004.”
II. RELEVANT DOMESTIC LAW
A. Enforcement Procedure Act 2000 (Zakon o izvršnom
postupku; published in the Official Gazette of the Federal Republic
of Yugoslavia - OG FRY - no. 28/00, 73/00 and 71/01)
- Article
4 § 1 provides that the enforcement court is obliged to proceed
urgently.
- Articles
63-84 regulate enforcement through the auctioning of the debtor's
movable assets.
B. Enforcement Procedure Act 2004 (Zakon o izvršnom
postupku; published in the Official Gazette of the Republic of Serbia
- OG RS - no. 125/04)
- This
Act entered into force on 23 February 2005, thereby repealing the
Enforcement Procedure Act of 2000. In accordance with Article 304,
however, all enforcement proceedings instituted prior to 23 February
2005 are to be concluded pursuant to the earlier legislation.
C. Relevant provisions of the Obligations Act
- The relevant provisions of this Act are set out in the
V.A.M. v. Serbia judgment (no. 39177/05, §§
71 and 72, 13 March 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant did not rely on a specific provision of the Convention. In
substance, however, she complained about the respondent State's
failure to secure a speedy enforcement of the final judgment rendered
in her favour.
- The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention, which, in the 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. Admissibility
1. Exhaustion of domestic remedies
- The
Government submitted that the applicant had not exhausted all
effective domestic remedies. In particular, she had failed to bring a
separate civil lawsuit under Articles 172, 199 and 200 of the
Obligations Act, as well as to refer to the relevant provisions of
the Convention which were directly applicable.
- The
applicant contested the effectiveness of this remedy.
- The
Court has already held that the above remedy could not be deemed
effective within the meaning of its established case-law under
Article 35 § 1 of the Convention (see Tomić v. Serbia,
no. 25959/06, §§ 76 and 81, 26 June 2007).
It sees no reason to depart from this finding in the present case and
concludes, therefore, that the Government's objection must be
rejected.
2. The applicant's “victim status” and the
application of Article 37 § 1 (b) of the Convention
- The
Government noted that the applicant had been “fully
compensated” by S.B. and that the Municipal Court had sent her
an official apology for the excessive length of the impugned
proceedings. She was therefore no longer a “victim”,
within the meaning of Article 34 of the Convention (see Faulkner
v. United Kingdom, no. 37471/97, decision of 18 September
2001).
- The
Government further argued, in the alternative, that the application
should be struck out of the Court's list of cases because the matter
had already been resolved.
- The Court recalls that a decision or a measure
favourable to the applicant is not in principle sufficient to deprive
him or her of the status of “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention complained of
(see, for example, Dalban v. Romania [GC], no. 28114/95, §
44, ECHR 1999-VI).
- Even
assuming that the applicant has obtained a sufficiently unequivocal
acknowledgement of the violation allegedly suffered (see paragraph 27
above), the Government have failed to provide her with any
compensation for the delay in question. It is further noted that the
applicant's case is clearly distinguishable from that of Faulkner
to which the Government referred. The Court therefore finds that the
applicant has retained her victim status and dismisses the
Government's objection in this regard.
- Finally,
the Court considers that in the absence of the said compensation “the
effects of a possible violation of the Convention” remain yet
to be “redressed” by the respondent State (see
Kaftailova v. Latvia (striking out) [GC], no. 59643/00,
§ 48, 7 December 2007, as regards the general
principles). Thus the matter cannot be struck out of the Court's list
in accordance with Article 37 § 1 (b) of the Convention.
3. 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
application must therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
Government maintained that there had been no violation of Article 6 §
1 of the Convention.
- In
particular, as regards the period after 3 March 2004, they pointed
out that the proceedings in question had been stayed in accordance
with the relevant domestic legislation.
- Finally,
the Government argued that the misplacement of the applicant's case
file was a “technical error” which could not have been
rectified in the absence of the applicant's specific objection to
this effect.
- The
applicant disagreed and reaffirmed her original complaints.
2. Relevant principles
- The
Court recalls that the execution of a judgment given by a court must
be regarded as an integral part of the “trial” for the
purposes of Article 6 (see Hornsby v. Greece, judgment of
19 March 1997, Reports of Judgments and Decisions 1997-II, p.
510, § 40).
- Further,
a delay in the execution of a judgment may be justified in particular
circumstances. It may not, however, be such as to impair the essence
of the right protected under Article 6 § 1 of the Convention
(see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74,
ECHR 1999-V).
- Finally,
irrespective of whether a debtor is a private or a State-controlled
actor, it is up to the State to take all necessary steps to enforce a
final court judgment and, in so doing, ensure the effective
participation of its entire apparatus (see, mutatis mutandis,
Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§
174-189, ECHR 2004-V (extracts); see also mutatis mutandis,
Hornsby, cited above, p. 511, § 41).
3. The Court's assessment
- The
Court notes first that the impugned proceedings ended on 17 May
2007 (see paragraph 25 above). These proceedings had thus been
ongoing for some three years and two months since the Serbian
ratification of the Convention on 3 March 2004 (the period which
falls within this Court's competence ratione temporis).
- Secondly,
the Court observes that, in order to determine the reasonableness of
the delay in question, regard must also be had to the state of the
case on the date of ratification (see, mutatis mutandis, EVT
Company v. Serbia, no. 3102/05, § 51, 21 June
2007) and notes that on 3 March 2004 the proceedings complained of
had already been pending for approximately seven years and six months
(see paragraphs 9-18 above).
- Thirdly,
it would appear that the applicant's case file had been misplaced by
the Municipal Court from 14 April 2004 until 25 October 2006, which
is why there were no procedural developments in the meantime. Indeed,
the President of the Municipal Court had himself admitted as much
(see paragraph 21 above).
- Finally,
the proceedings in question ended not as a result of the successful
seizure carried out by the Municipal Court, but because of the
applicant's decision to withdraw her enforcement request in response
to the debtor's payment (see paragraphs 25-26 above).
- In
these circumstances, the Court considers that the Serbian authorities
had failed to conduct the impugned enforcement proceedings
effectively, thereby impairing the essence of the applicant's “right
to a court”. There has accordingly been a violation of Article
6 § 1 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 did not submit a claim for pecuniary or non-pecuniary
damages. Accordingly, the Court considers that there is no call to
award her any sum on that account.
B. Costs and expenses
- Noting
that the domestic proceedings had, in the meantime, been concluded
favourably, the applicant claimed 202,500 Serbian dinars for the
costs and expenses incurred domestically, as well as those incurred
in the proceedings before this Court.
- The
Government described this claim as belated.
- The
Court notes that the applicant's claim was indeed submitted on 31
October 2007, the deadline for so doing being 22 October 2007. The
applicant has therefore failed to comply with Rule 60 §§ 2
and 3 of the Rules of Court. Her claim is therefore dismissed.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 1 April, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
