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SECOND
SECTION
CASE OF
DIMITRIJEVIĆ AND
JAKOVLJEVIĆ v. SERBIA
(Application
no. 34922/07)
JUDGMENT
STRASBOURG
19 January 2010
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 Dimitrijević and Jakovljević v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34922/07) against 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 Aleksandra
Dimitrijević (“the first applicant”) and Ms Suzana
Jakovljević (“the second applicant”), on 2 August
2007.
- The
President of the Chamber gave priority to the application in
accordance with Rule 41 of the Rules of Court.
- The
applicants, who had been granted legal aid, were represented by Mr M.
Pavlović, a lawyer practising in Niš. The Serbian
Government (“the Government”) were represented by their
Agent, Mr S. Carić.
- On
27 May 2008 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was also decided that the merits of the application
would be examined together with its admissibility.
THE FACTS
- The applicants, a daughter (the first applicant) and a
mother (the second applicant), were born in 1993 and 1967,
respectively, and live in Niš.
- On
6 May 2003 M.D., the first applicant's father, filed a claim with the
Municipal Court (Opštinski sud) in Niš, seeking
the dissolution of his marriage to the second applicant.
- On
12 February 2004 the applicants jointly filed a counterclaim
(protvtuZba), requesting that M.D. be ordered to pay monthly
child maintenance to the first applicant.
- On
18 January 2005 the Municipal Court: dissolved the marriage; awarded
custody of the first applicant to the second applicant; regulated
M.D.'s access rights; ordered him to pay monthly child maintenance;
and decided that each party should bear its own costs.
- Due
to the Municipal Court's failure to properly serve this judgment on
the applicants, the latter, who had clearly continued living at the
same address, only managed to file an appeal against it on 27 April
2007.
- On
18 September 2007 the District Court (OkruZni sud) in Niš
quashed the Municipal Court's judgment in so far as it concerned the
maintenance sought and ordered a retrial.
- Having
held four separate hearings, on 26 December 2007 the Municipal
Court ruled partly in favour of the applicants. In so doing, it
ordered M.D. to pay monthly child maintenance, as well as the costs
incurred by the applicants.
- On
26 February 2008 this judgment was upheld by the District Court on
appeal.
THE LAW
13. The
applicants complained about the excessive length of the child
maintenance suit in question.
- The
Government raised various objections to the admissibility of this
matter. 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
on 3 March 2004, which is when the Convention entered into force in
respect of Serbia, and ended on 26 February 2008. The impugned
proceedings have thus been within the Court's competence ratione
temporis for a period of approximately four years, of which two
years and three months are clearly imputable to the respondent
State's judiciary (see paragraph 9 above).
- 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 M.V.
v. Serbia, no. 45251/07, 22
September 2009). Having examined all the
material submitted to it, and noting that both the Convention
and the relevant domestic law require exceptional diligence in all
child-related matters, 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 concludes that the length of the proceedings here at issue
was excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
- Relying
on Article 41 of the Convention, the applicants, jointly, claimed a
total of 23,000 euros (EUR) for the pecuniary and non-pecuniary
damage suffered. The Government contested those claims. The Court
does not discern a causal link between the violation found and the
pecuniary damage alleged; it therefore rejects the applicants' claim
in this regard. However, it considers that the applicants must have
sustained some non-pecuniary damage. Ruling on an equitable basis, it
hence awards them, jointly, EUR 1,300 under this head.
- The
applicants also claimed EUR 1,500 each for costs and expenses. Regard
being had to its criteria in this respect and the EUR 850 already
granted to the applicants under the Council of Europe's legal aid
scheme, as well as the costs awarded domestically, the Court rejects
the applicants' claims in their entirety.
- 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,
Declares the
application admissible;
Holds that
there has been a violation of Article 6 § 1 of the
Convention;
Holds
that the respondent
State is to pay the applicants, jointly, within three months from
the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, EUR 1,300 (one thousand
three hundred euros) in respect of the non-pecuniary damage
suffered, which sum is to be converted into the national currency
of the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
that from the
expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amount 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 applicants' claim for just satisfaction.
Done in English, and notified in writing on 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
