Lexploria

THIRD SECTION

CASE OF RADOVANOVIĆ AND OTHERS v. SERBIA

(Applications nos. 55003/16 and 11 others - see appended list )

JUDGMENT

STRASBOURG

27 August 2019

This judgment is final but it may be subject to editorial revision.

In the case of Radovanović and Others v. Serbia ,

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

Georgios A. Serghides, President, Branko Lubarda, Erik Wennerström , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 9 July 2019 ,

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

PROCEDURE

1. The case originated in twelve applications (nos. 55003/16, 55165/16, 55199/16, 58368/16, 14938/17, 20906/17, 22606/17, 25312/17, 61028/17, 61340/17, 77837/17 and 77858/17 ) 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”). The applicants ’ personal details are set out in the appendix to this judgment.

2. The applicants were represented by lawyers indicated in the appendix to this judgment. The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić .

3. On 13 July 2018 the applicants ’ complaints concerning the delayed enforcement of final judgments in their favour and the existence of an effective remedy in that regard were communicated to the Government and the remainder of their applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Government objected to the examination of the application by a Committee. After having considered the Government ’ s objection, the Court rejects it.

THE FACTS

5. The applicants were employed by Fabrika reznog alata , a socially/State-owned company based in Čačak (hereinafter – “the debtor”).

6. The applicants obtained final court decisions ordering the debtor to pay them their salaries plus default interest and costs and expenses. The essential information as to the domestic proceedings in respect of each application is indicated in the appendix to this judgment.

7. Between 22 December 2014 and 4 December 2015 the Kragujevac Court of Appeal ( Apelacioni sud u Kragujevcu ) and the Čačak High Court ( Viši sud u Čačku ) found that the applicants ’ right to a trial within a reasonable time had been violated and a warded them between 100 and 400 euros (EUR) each in respect of non-pecuniary damage (see the appendix to this judgment). They further ordered the Čačak Court of First Instance ( Osnovni sud u Čačku ) to speed up the enforcement proceedings.

8. All the applicants complained to the Supreme Court of Cassation about the amount of the awards. The Supreme Court of Cassation rejected their appeals.

9. Between 12 May 2016 and 6 July 2017 the Constitutional Court found a violation of the applicants ’ right to the peaceful enjoyment of possessions and ordered that the sums awarded in the domestic decisions mentioned in paragraph 6 above be paid directly by the State. Furthermore, it held that the sums awarded in respect of non-pecuniary damage were reasonable.

10. The impugned judgments were enforced shortly thereafter.

THE LAW

11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

12. The applicants complained of the delayed enforcement of final judgments in their favour. They relied on Article 6 § 1 of the Convention, which, in the relevant part, provides:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

13. The Government submitted that the applicants could no longer claim to be victims within the meaning of Article 34 of the Convention since the judgments in issue had been enforced, domestic courts had acknowledged the alleged breach and awarded appropriate and sufficient redress (see paragraphs 7-10 above). They added that in view of a dire economic situation in Serbia it could not be expected of domestic courts to award higher amounts in this regard.

14. The applicants disagreed.

15. According to the Court ’ s settled case-law, a decision or measure favourable to the applicant, such as the enforcement of a judgment after substantial delay, is not in principle sufficient to deprive him of his status as a victim unless the national authorities have acknowledged the breach (at least in substance) and afforded redress for it (see Burdov v. Russia (no. 2) , no. 33509/04, § 56, 15 January 2009). It is further recalled that redress afforded by the national authorities must be appropriate and sufficient, failing which a party can continue to claim to be a victim of the violation (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006-V, and Cocchiarella v. Italy [GC], no. 64886/01, § 72, ECHR 2006-V).

16. In the present case, the domestic courts expressly acknowledged the alleged breach, thereby effectively satisfying the first condition laid down in the Court ’ s case law.

17. With regard to the second condition, the Court has already held in length-of-proceedings cases that one of the characteristics of such redress, which may remove a litigant ’ s victim status, relates to the amount awarded (see Cocchiarella , cited above, § 93). The principles developed in the context of length-of-proceedings cases are also applicable in the situation where applicants complain of the delayed enforcement of final judgments in their favour, as in the present case (see Kudić v. Bosnia and Herzegovina , no. 28971/05, § 17, 9 December 2008). States which, like Serbia, have opted for a remedy designed both to expedite proceedings and afford compensation are free to award amounts which - while being lower than those awarded by the Court - are still not unreasonable (see Cocchiarella , cited above, § 97).

18. In cases against Serbia, when a final judgment rendered in a labour dispute has remained unenforced for more than five years, as in the present case, the Court normally awards EUR 4,700 in respect of non-pecuniary damage (see Adamovi ć v. Serbia , no. 41703/06, § 51, 2 October 2012, and Klikovac and Others v. Serbia , no. 24291/08, § 25, 5 March 2013). In view of a very large number of non-enforced domestic decisions against socially/State-owned companies, the C ourt reduced that amount to EUR 2,000 (see Stošić v. Serbia , no. 64931/10, § 67, 1 October 2013). In doing so, it took into consideration also the economic situation in Serbia to which the Government referred. Since that amount is already much lower than what the Court would have normally awarded in such cases, any lower amount awarded at the domestic level is considered to be unreasonable. It should be added, however, that the Court could accept a lower domestic award, if the respondent State opts for a comprehensive solution and transfer the liability for all non-enforced domestic decisions against socially/State-owned companies to the State by virtue of law (see Knežević v. Bosnia and Herzegovina ( dec. ), no. 15663/12, §§ 11-15, 14 March 2017, accepting a domestic award of EUR 50 in respect of non-pecuniary damage).

19. Since the applicants received less than EUR 2,000 in this respect, they did not lose their status as victims within the meaning of Article 34 of the Convention and the Government ’ s objection must be dismissed.

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

21. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues (see, among many other cases, R. Kačapor and Others v. Serbia , nos. 2269/06 and 5 others, 15 January 2008, and Crnišanin and Others v. Serbia , nos. 35835/05 and 3 others, 13 January 2009). There is no reason to depart from that jurisprudence.

22. There has accordingly been a violation of Article 6 § 1 of the Convention.

23. The applicants also relied on Article 13 of the Convention without going into any details. Article 13 provides:

“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.”

24. Having regard to its findings under Article 6 of the Convention, the Court does not consider it necessary to examine this complaint separately.

25. 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.”

26. The applicants claimed EUR 3,000 each in respect of non-pecuniary damage and EUR 2,000 each for the costs and expenses incurred before the Court.

27. The Government considered the sums requested to be excessive.

28. In view of its case-law (see Stošić , cited above), the Court awards the applicants EUR 2,000 each, less any amounts which may have already been paid in that regard at the domestic level, in respect of non-pecuniary damage, costs and expenses, and dismisses the remainder of the applicants ’ claims for just satisfaction.

29. 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,

(a) that the respondent State is to pay the applicants, within three months EUR 2,000 (two thousand euros) each, less any amounts which may have already been paid in that regard at the domestic level, in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable, which is to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) 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;

Done in English, and notified in writing on 27 August 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Georgios A. Serghides Deputy Registrar President

No.

Application no.

and date of introduction

Applicant ’ s name

date of birth

place of residence nationality

Represented by

Final domestic decision (trial court, case no., date of decision)

Enforcement order (enforcement court, case no., date of order)

Final domestic decision concerning the length of proceedings (trial court, case no., date of decision)

Amounts awarded domestically for non-pecuniary damage

Constitutional Court decision details

55003/16

10/09/2016

Marko RADOVANOVI Ć

10/05/1968

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 37/2003

13/10/2008

Čačak Municipal Court

I.br. 841/09

12/06/2009

Kragujevac Court of Appeal

R4 -r-161/14

27/04/2015

400 euros

Už - 6142/2015

12/05/2016

55165/16

10/09/2016

Milun STEVANOVIĆ

26/07/1959

Petnica , Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br.222/2009

26/05/2009

Čačak Municipal Court

I.br. 1454/09

19/10/2009

Čačak High Court

R4.I. br. 167/14

15/01/2015t

200 euros

Už-5426/2015

12/05/2016

55199/16

10/09/2016

Milivoje KUJUNDŽIĆ

07/10/1950

Miokovci , Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.37/2003

13/10/2008

Čačak Municipal Court

I.br. 841/09

12/06/2009

Kragujevac Court of Appeal

R4-r-161/14

27/04/2015

400 euros

Už-6142/2015

12/05/2016

58368/16

23/09/2016

Miljan ČUKANOVIĆ

15/12/1949

Kukići , Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 1196/2002

29/05/2008

Čačak Municipal Court

I.br. 1070/08

04/08/2008

Čačak High Court

R4-I. br. 252/14

03/02/2015

100 euros

Už-5578/2015

(Už-4540/2014)

26/05/2016

14938/17

14/02/2017

Anđelija

ŠIPETIĆ

26/04/1954

Grab, Čačak

Serbian

Ivana KRUNIĆ

Čačak Municipal Court

P1.br. 890/04

17/03/2008

Čačak Municipal Court

I.br. 159/09

05/02/2009

Čačak High Court

R4-I. br. 205/14

14/04/2015

150 euros

Už-7199/2015

(Už-4599/2014)

20/10/2016

20906/17

06/03/2017

Milan

MIRKOVI Ć

17/04/1952

Čačak

Serbian

Ivana KRUNIĆ

Čačak Municipal Court

P1.br. 729/03

10/06/2008

Čačak Municipal Court

P1.br. 142/2009

18/05/2009

Čačak Municipal Court

I.br. 1240/09

18/09/2009

Čačak High Court

R4.I. br. 206/14

29/12/2014

200 euros

Už-1130/2016

(Už-4296/2014)

09/11/2016

22606/17

15/03/2017

Milutin

BOJOVIĆ

21/09/1949

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 710/2007

31/01/2008

Čačak Municipal Court

P1.br. 474/08

18/06/2009

Čačak Municipal Court

I.br. 1603/08

01/12/2008

Čačak Municipal Court

I.br. 10302/10

26/03/2010

Čačak High Court

R4-I-256/14

30/03/2015

150 euros

Už-4357/2015

( Už -4543/2014)

17/11/2016

25312/17

20/03/2017

Dragana

TOMOVIĆ

08/12/1963

Čačak

Serbian

Ivana KRUNIĆ

Čačak Municipal Court

P1.br. 146/2008

10/10/2008

Čačak Municipal Court

I.br. 158/09

05/02/2009

Čačak High Court

R4-I. br. 260/14

02/02/2015

100 euros

Už-8232/2015

(Už-4529/2014)

24/11/2016

61028/17

12/08/2017

Miroslav SIMEUNOVIĆ

15/05/1962

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 1240/03

12/03/2008

Čačak Municipal Court

I.br. 838/08

07/07/2008

Čačak High Court

R4( I). br. 350/15

04/12/2015

250 euros

Už -7313/2015

13/04/2017

61340/17

12/08/2017

Milojko

ĐAKOVIĆ

06/12/1956

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 1240/03

12/03/2008

Čačak Municipal Court

I.br. 838/08

07/07/2008

Čačak High Court

R4(I). br. 350/15

04/12/2015

250 euros

Už-7313/2015

13/04/2017

77837/17

04/11/2017

Miroslav

PETRIĆ

16/05/1962

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 31/2003

28/11/2008

Čačak Municipal Court

I.br. 1249/09

01/09/2009

Čačak High Court

3R4-I. br. 207/14

22/12/2014

100 euros

Už-2333/2015

(Už-4292/2014)

06/07/2017

77858/17

04/11/2017

Nebojša

BIÅ EVAC

03/08/1953

Čačak

Serbian

Dragana JANKOVIĆ

Čačak Municipal Court

P1.br. 31/2003

28/11/2008

Čačak Municipal Court

I.br. 1249/09

01/09/2009

Čačak High Court

3R4-I. br. 207/14

22/12/2014

100 euros

Už-2333/2015

(Už-4292/2014)

06/07/2017

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CASE OF RADOVANOVIĆ AND OTHERS v. SERBIA

CASE OF RADOVANOVIĆ AND OTHERS v. SERBIA

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