THIRD SECTION
CASE OF
NIKOLIĆ-KRSTIĆ v. SERBIA
(Application no.
54195/07)
JUDGMENT
STRASBOURG
14 October 2014
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 Nikolić-Krstić
v. Serbia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Dragoljub Popović,
Luis López Guerra,
Johannes Silvis,
Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section
Registrar,
Having deliberated in private on 23 September 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
54195/07) 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, Ms Olivera Nikolić-Krstić
(“the applicant”), on 4 December 2007.
The applicant was represented by Mr D.
Vidosavljević, a lawyer practising in Leskovac. The Serbian Government
(“the Government”) were represented by their Agent, Mr S. Carić.
On 29 June 2010 the President of the Second
Section decided to give notice of the application to the Government.
On 1 February 2014 the
Court changed the composition of its Sections (Rule 25 § 1). This case was thus
assigned to the newly composed Third Section (Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1957 and lives in Leskovac.
On 5 September 1994 the Leskovac Municipal Court
(“the Municipal Court”) ordered the Leskovac branch of the “JIK” Bank (“the
debtor”), a predominantly socially-owned bank, to reinstate the applicant and
to pay her outstanding salary and all work-related benefits for the period following
her unlawful dismissal. That judgment became final on 1 September 1995.
On an unspecified date, the applicant filed a
request for the enforcement of the above judgment. On 17 October 1995 the
Municipal Court issued a writ of execution (rešenje o
izvršenju).
On 19 December 1995 the applicant was reinstated.
However, as the debtor refused to pay the outstanding judgment debt, the applicant,
on an unspecified date, filed a new request for the enforcement.
On 18 November 1997, on the basis of a financial
expert’s analysis, the Municipal Court ordered the enforcement by debtor account
transfer in the total amount of 72,076.55 Yugoslav dinars (YUM) in respect of salary
arrears and all work-related benefits, for the period from 1 May 1992 until 31
December 1995, together with statutory interest and YUM 550 for legal costs.
On 29 September 1999 the applicant requested the
court to change the means of enforcement as it appeared that there were no
funds in the debtor’s account. On 1 October 1999 the Municipal Court ordered
the enforcement by auctioning of the debtor’s specified movable assets.
On 26 July 2000 the applicant obtained a pledge (zalog)
over certain movable assets which were seized from the debtor (two vehicles and
some technical equipment).
On the same day, the Belgrade Commercial Court (“the
Commercial Court”) instituted liquidation proceedings against the debtor.
On 8 May 2001
the enforcement proceedings were discontinued in view of the pending liquidation
proceedings. On 22 May 2001 the applicant reported her claims to the
liquidation council (likvidaciono veće).
On several occasions thereafter, the applicant
petitioned the court to continue with the enforcement and to schedule a public
auction for the sale of the pledged assets, arguing that their value was
decreasing due to the passage of time and that she had to bear the maintenance
costs. On 15 January 2002 she submitted the same request to the
liquidation administrator (likvidacioni upravnik).
The Municipal Court held two hearings concerning
the applicant’s requests, on 10 December 2003 and 30 October 2005, but it would
appear that no decision was issued.
In the meantime, on 11 March
2004 the Commercial Court appointed the Agency for Deposits as a liquidation
administrator. On 7 April 2005 the Commercial Court terminated the
liquidation proceedings and opened bankruptcy proceedings against the debtor.
On 18 November 2005 the
Commercial Court rejected the applicant’s claims against the debtor (paragraph 13
above) and instructed her to initiate a new set of civil proceedings. On 16 May
2007 the Belgrade High Commercial Court (“the High Commercial Court”) upheld
that decision.
The applicant did not initiate a new set of
civil proceedings as instructed.
It would appear that bankruptcy proceedings are
still pending and that the debtor is still predominantly socially-owned.
II. RELEVANT DOMESTIC LAW
The relevant domestic law is set out in the
Court’s judgment of R. Kačapor
and Others v. Serbia, nos. 2269/06 et al.,
15 January 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The applicant complained of the non-enforcement of
the Municipal Court decision of 5 September 1994. The case has been examined by
the Court under Article 6 of the Convention and Article 1 of Protocol No.
1.
Article 6, in so far as relevant, provides:
“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 to the Convention 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.
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.”
A. Admissibility
1. Six-month rule
The Government submitted that the application
was introduced outside the six-month time-limit as the final decision
concerning the applicant’s claim against the debtor in the bankruptcy
proceedings was the Commercial Court’s decision of 18 November 2005 (paragraph 17 above). The applicant was clearly instructed to initiate a new set of civil
proceedings but instead she appealed to the High Commercial Court. The
Government submitted that in the circumstances of the present case, the
applicant should have been aware that an appeal would be ineffective.
The applicant disputed these arguments.
The Court notes that the present case concerns
the non-enforcement of the final domestic judgment
in the applicant’s favour. The judgment became
final on 1 September 1995 and remains unenforced to the present day. At the
time of the introduction of this application, there were no effective domestic
remedies for this complaint in the respondent State (see Vinčić
and Others v. Serbia, nos. 44698/06 et al., § 51,
1 December 2009). The Court concludes, therefore, that the alleged
violation in the present case constitutes a continuous situation and
accordingly rejects the Government’s objection.
2. Compatibility ratione personae
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.
The Court has already held in comparable cases
against Serbia that the State is liable for debts of socially-owned companies (see,
for example, R. Kačapor and Others, cited above, §§ 97-98, and Rašković and
Milunović v. Serbia, nos. 1789/07 and 28058/07, § 71, 31 May 2011) and banks (see Ališić and Others
v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav
Republic of Macedonia [GC], no. 60642/08, §§ 115-117, 16
July 2014) as they
are closely controlled by a Government agency. The Court sees no reason to depart from that jurisprudence
in the present case. Consequently, this argument must be rejected.
3. Exhaustion of domestic remedies
The Government further argued that the applicant
had not exhausted all effective domestic remedies. In particular, she had not
requested that the pledged property belonging to the debtor be sold.
Furthermore, she had not initiated a new set of civil proceedings pursuant to
the instruction of the Commercial Court.
The applicant disputed these arguments.
The Court notes that the
applicant had a judgment given in her favour which was final and enforceable
and whose execution was the responsibility of the authorities, including, if
necessary, the taking of such measures as bankruptcy proceedings (see Khachatryan
v. Armenia, no. 31761/04, § 60, 1
December 2009). In principle, when an applicant, such as the present
one, 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 bankruptcy proceedings against the debtor,
to report his or her claims to the administration of the debtor (see R.
Kačapor and Others, cited above). Given that the present applicant did
that, the Government’s objection must be rejected.
4. Conclusion
The Court considers that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and finds no other ground to declare it inadmissible. It must
therefore be declared admissible.
B. Merits
The Government argued that the applicant had contributed
to the length of the non-enforcement because she had failed to use available
procedural steps to sell the pledged property in the bankruptcy proceedings. The
Government further submitted that the final judgment
in the present case had ceased to be enforceable with the opening of the
bankruptcy proceedings.
The Court notes that the domestic judgment under
consideration in the present case remained unenforced more than ten years (the period
before the ratification of the Convention by the respondent State on 3 March
2004, being outside the Court’s jurisdiction ratione temporis, has not
been taken into account).
The Court has already held that the State is responsible
for the failure to enforce final domestic judgments rendered against
State-controlled entities against which bankruptcy proceedings were pending
(see R. Kačapor and Others, cited above, §§ 115-116; Adamović
v. Serbia, no. 41703/06,
§§ 40-41, 2 October 2012; and Ališić and Others, cited above,
§§ 115-117). It finds no reason to depart from that
jurisprudence in the present case. The Government have failed to demonstrate
that the responsibility for the delay in the present case could be attributed
to the applicant.
Accordingly, there has been a breach of
Article 6 of the Convention and Article 1 of Protocol No. 1 to 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, costs and expenses
In respect of pecuniary damage the applicant
sought the payment of the outstanding judgment debt and, in addition, 11,250 euros
(EUR) for the maintenance costs she had in respect of the pledged assets. She
further claimed EUR 3,600 in respect of non-pecuniary damage and approximately EUR
940 for the costs and expenses incurred before the Court.
The Government considered the claims unjustified
and excessive.
Having regard to the violations found in the
present case and its own jurisprudence (see R. Kačapor and Others, cited
above, §§ 123-126, and Crnišanin and Others v. Serbia, nos. 35835/05 et
al., § 139, 13 January 2009), the Court considers that the applicant’s
claim for pecuniary damage concerning the payment of the outstanding judgment debt must be accepted. The Government shall,
therefore, pay the applicant the outstanding debt from the final judgment of 5 September
1994, less any amounts which may have already been paid on the basis of the
said judgment. As regards the applicant’s claim for the maintenance costs
concerning the pledged assets, the Court notes that she did not demonstrate
that she suffered any pecuniary damage in this connection. It therefore rejects
this claim.
Furthemore, in view of its case-law (see Stošić
v. Serbia, no. 64931/10, §§ 66-68, 1 October 2013), the Court
considers it reasonable and equitable to award EUR 2,500 to the applicant,
which sum is to cover all non‑pecuniary damage as well as costs and
expenses.
B. 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 application admissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, 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 outstanding debt owed to the applicant under the judgment of 5 September
1994 which became final on 1 September 1995, less any amounts which may have
already been paid on the basis of the said judgment;
(b) that the respondent State is to pay the applicant, within
the same period, EUR 2,500 (two thousand five hundred euros) in respect of
non-pecuniary damage, costs and expenses, plus any tax that may be chargeable
on this amount to the applicant 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 amount at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
