Lexploria

THIRD SECTION

CASE OF STEVANOVIĆ AND OTHERS v. SERBIA

( Applications nos. 43815/17 and 15 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 Stevanović 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 sixteen applications (nos. 43815/17, 43819/17, 46335/17, 46382/17, 58825/17, 72892/17, 77141/17, 77875/17, 77876/17, 77879/17, 77882/17, 78142/17, 79575/17, 83186/17, 5791/18 and 6256/18 ) 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 sixteen Serbian nationals. The applicants ’ personal details are set out in the appendix to this judgment.

2. The applicants were represented by Ms T. Stojiljković , a lawyer practising in Leskovac . The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić .

3. On 25 September 2018 notice of the applications was given to the Government pursuant to Rule 54 § 2 (b) 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 the following socially/State-owned companies: Vučje, Inkol , Elektrouniverzal and Graditelj ( hereinafter – “the debtors”).

6. They obtained final court decisions ordering the debtors 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 April 2009 and September 2010 the Leskovac Commercial Court opened insolvency proceedings in respect of the debtors. Since all the enforcement proceedings against the debtors were stayed by operation of law (see paragraph 12 below), the applicants reported their claims based on the court decisions mentioned in paragraph 6 above to the liquidator. On different dates the liquidator accepted their claims in the amount of the principal debt plus default interest accrued until the day of institution of the insolvency proceedings against the debtors, as provided for by domestic law (see paragraph 12 below).

8. On different dates (see the appendix to this judgment) the Commercial Court of Appeal found that the applicants ’ right to a trial within a reasonable time had been violated and awarded them between 100 and 400 euros (EUR) each for non-pecuniary damage. No award was made in respect of the fifth and the seventh applicant. That court also ordered the Leskovac Commercial Court to speed up the insolvency proceedings against the debtors.

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

10. On different dates in 2017 the Constitutional Court found a violation of the applicants ’ right to the peaceful enjoyment of their possessions and ordered that the claims accepted by the liquidator (see paragraph 7 above) be paid directly by the State within four months. Furthermore, it held that the sums awarded in respect of non-pecuniary damage were reasonable.

11. Soon thereafter, those claims were indeed paid by the State.

12. Pursuant to sections 85 and 93 of the Insolvency Act 2009 ( Z akon o stečaju ; Official Gazette nos. 104 / 09, 99 / 11, 71 / 12 , 83 / 14, 113 / 17 and 44 / 18), as of the day of institution of insolvency proceedings against a company (both private and socially/State-owned), any ongoing enforcement proceedings against the company are stayed and default interest on any outstanding debt of the company cease to accrue. The Insolvency Act 2004 ( Zakon o stečajnom postupku ; Official Gazette nos. 84 / 04 and 85 / 05), which was in force until the entry into force of the Insolvency Act 2009, contained almost identical provisions.

THE LAW

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

14. The applicants maintained that the final court decisions mentioned in paragraph 6 above had not been fully enforced. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, in the relevant part, read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ...”

15. 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. In view of a dire economic situation in Serbia, it could not be expected of domestic courts to award higher amounts in this regard. The Government added that in Serbia, at the relevant time (in 2016), the average salary was less than EUR 400 and the average pension was less than EUR 200.

16. The applicants disagreed. Notably, they complained because they had not been paid default interest after institution of insolvency proceedings against the debtors. They also argued that the redress awarded in respect of non-pecuniary damage was not sufficient.

17. The Court notes that the applicants were entitled to receive, and they indeed received, the principal debt and default interest at the statutory rate until the institution of the insolvency proceedings against the debtors. They did not receive default interest after that date because they were not entitled to it (see paragraph 12 above). That being the case, the Court concludes that the domestic decisions in issue were fully enforced. In this connection, the Court agrees with the Government that although the respondent State is responsible for the judgment debts of socially/State-owned companies (see R. Kačapor and Others v. Serbia , nos. 2269/06 and 5 others, 15 January 2008), the general rules of domestic law still apply to any enforcement and insolvency proceedings against such companies. Those with non-enforced judgments against socially/State-owned companies have a possibility of transferring liability for their claims to the State since 2012 (see Marinkovic v. Serbia ( dec. ), no. 5353/11, 29 January 2013). In the present case, there is no reason to elaborate on the rules which apply to transferred claims, since the judgments in issue were enforced soon after the transfer of liability (see paragraphs 10-11 above).

18. The Court further reiterates that the enforcement of a judgment after substantial delay is not in principle sufficient to deprive an applicant of his status as a victim unless the national authorities have acknowledged the breach (at least in substance) and afforded appropriate and sufficient redress (see Burdov v. Russia (no. 2), no. 33509/04, § 56, 15 January 2009).

19. 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.

20. 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 Cocch iarella v. Italy [GC], no. 64886/01, § 93, ECHR 2006 ‑ V ). 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).

21. 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 for non-pecuniary damage (see Adamović v. Serbia , no. 41703/06, § 51, 2 October 2012, and Kliko vac 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 Court reduced that sum 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).

22. 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. The Government ’ s objection must therefore be dismissed. In view of the finding that the domestic decisions in issue were fully enforced (see paragraph 17 above), there is no need to examine the Government ’ s remaining objections.

23. Since the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, it must be declared admissible.

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

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

26. 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.”

27. The applicants claimed EUR 2,000 each in respect of non-pecuniary damage, EUR 1,500 each for the costs and expenses incurred before the domestic courts and EUR 1,000 each for those incurred before the Court.

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

29. 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.

30. 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

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

43815/17

12/06/2017

Srđan STEVANOVIĆ

06/07/1965

Leskovac Municipal Court

P.br. 2663/2003

07/10/2003

Leskovac Municipal Court

I.br. 1313/07

08/05/2007

Commercial Court of Appeal

R4 St 251/15

13/05/2015

170 euros

Už-6940/2015

27/04/2017

43819/17

12/06/2017

Goran ILIĆ

12/09/1969

Leskovac Municipal Court

P.br. 2575/03

20/11/2003

P1.br. 3239/07

13/03/2008

Leskovac Municipal Court

I.br. 4338/07

10/12/2007

I.br. 1316/08

03/07/2008

Commercial Court of Appeal

R4 St 122/15

17/03/2016

250 euros

Už-6963/2016

(Už-2506/2014)

27/04/2017

46335/17

14/06/2017

Radmila STAMENKOVIĆ

03/04/1951

Leskovac Municipal Court

P.br. 1255/03

13/11/2003

P1.br. 3308/07

14/02/2008

Leskovac Municipal Court

I.br. 4172/07

27/11/2007

I.br. 1812/08

18/09/2008

Commercial Court of Appeal

R4 St 122/15

17/03/2016

250 euros

Už-6963/2016

(Už-2506/2014)

27/04/2017

46382/17

13/06/2017

Slađanka NOVAKOVIĆ

03/02/1963

Leskovac Municipal Court

P.br. 2034/03

13/06/2003

P1.br. 2797/07

01/02/2008

Leskovac Municipal Court

I.br. 757/06

03/05/2006

I.br. 1602/08

30/062008

Commercial Court of Appeal

R4 St 122/15

17/03/2016

250 euros

Už-6963/2016

(Už-2506/2014)

27/04/2017

58825/17

02/08/2017

Zlata PAVLOVIĆ

23/06/1962

Leskovac Municipal Court

P1.br. 1932/06

25/06/2007

-

Commercial Court of Appeal

R4 St 167/15

20/08/2015

-

Už-10085/2016

22/06/2017

72892/17

02/10/2017

Tamara KOSTIĆ

19/07/1961

Leskovac Municipal Court

P.br. 1032/01

13/06/2001

P.br. 2651/2001

05/12/2001

P.br. 4098/2003

01/08/2003

P.br. 2167/04

10/11/2004

Leskovac Municipal Court

I.br. 1328/01

17/07/2001

I.br. 1390/02

18/07/2002

I.br. 3662/03

28/11/2003

I.br. 305/05

20/12/2006

Commercial Court of Appeal

R4 St. 84/2015

22/05/2015

100 euros

Už-7258/2015

(Už-1407/2014)

01/06/2017

77141/17

23/10/2017

Radmila ILIĆ

03/12/1947

Leskovac Municipal Court

P1.br. 3504/07

25/02/2008

Leskovac Municipal Court

I.br. 1684/08

18/09/2008

Commercial Court of Appeal

R4 St 869/2014

06/04/2015

-

Už-6950/2015

20/04/2017

77875/17

30/10/2017

Tomislav ĐORĐEVIĆ

11/09/1948

Leskovac Municipal Court

P.br. 862/03 (940/03)

04/03/2003

P1.br. 3130/07

10/01/2008

Leskovac Municipal Court

I.br. 4201/07

28/11/2007

I.br. 3109/08

04/11/2008

Commercial Court of Appeal

R4 St 104/15

16/06/2016

170 euros

Už-40/2017

(Už-2506/2014)

07/09/2017

77876/17

30/10/2017

Dragan CVETKOVIĆ

11/10/1953

Leskovac Municipal Court

P.br. 1928/03

13/06/2003

Leskovac Municipal Court

I.br. 1227/08

26/03/2008

Commercial Court of Appeal

R4 St 116/15

29/12/2015

170 euros

Už-4184/2016

(Už-2506/2014)

20/09/2017

77879/17

30/10/2017

Slađana KRSTIĆ

16/02/1968

Leskovac Municipal Court

P.br. 2467/03

20/05/2003

Leskovac Municipal Court

I.br. 1525/07

28/06/2007

Commercial Court of Appeal

R4 St 116/15

29/12/2015

170 euros

Už-4184/2016

(Už-2506/2014)

20/09/2017

77882/17

31/10/2017

Olivera ĐORĐEVIĆ

28/09/1976

Leskovac Municipal Court

P.1.br. 1162/06

20/09/2006

P1.br. 469/09

24/06/2009

Leskovac Municipal Court

I.br. 168/09

03/11/2009

I.br. 3412/09

07/12/2009

Commercial Court of Appeal

R4 St 2840/15

15/06/2016

170 euros

Už-9747/2016

19/07/2017

78142/17

03/11/2017

Zlatica STEFANOVIĆ

02/02/1959

Leskovac Municipal Court

P.br. 424/04

16/03/2005

P.1.br. 1912/06

05/12/2006

Leskovac Municipal Court

I.br. 283/06

28/04/2006

(I.br. 413/07

23/04/2007)

I.br. 598/07

08/02/2007

Commercial Court of Appeal

R4 St. 498/14

14/01/2015

400 euros

Už-2924/2015

(Už-1932/2014)

18/05/2017

79575/17

13/11/2017

Rade GAVRILOVIĆ

11/03/1954

Leskovac Municipal Court

P.br. 902/2003

30/06/2003

P1.br. 1130/06

20/07/2006

Leskovac Municipal Court

I.br. 4332/07

08/02/2008

I.br. 4317/07

21/04/2008

Commercial Court of Appeal

R4 St 1931/15

20/08/2015

100 euros

Už-931/2016

28/09/2017

83186/17

06/12/2017

Aca PAVLOVIĆ

24/10/1961

Leskovac Municipal Court

P.br. 1310/03

20/03/2003

P1.br. 2859/07

05/02/2008

Leskovac Municipal Court

I.br. 3515/07

09/10/2007

I.br. 1254/08

20/05/2008

Commercial Court of Appeal

R4 St 849/14

27/05/2015

R4 St 870/14

04/062015

270 euros

Už-7341/2015

20/09/2017

5791/18

22/01/2018

Sunčica JORGAČEVIĆ

19/01/1967

Leskovac Municipal Court

P1.br. 3252/07

30/01/2008

Leskovac Municipal Court

I.br. 2604/08

04/11/2008

Commercial Court of Appeal

R4 St. 124/2015

27/05/2015

100 euros

Už-412/2016

09/11/2017

6256/18

22/01/2018

Saša STANKOVIĆ

17/05/1967

Leskovac Municipal Court

P1.br. 263/08

15/04/2008

Leskovac Municipal Court

I.br. 2923/08

12/12/2008

Commercial Court of Appeal

R4 St. 124/2015

27/05/2015

100 euros

Už-412/2016

09/11/2017

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CASE OF STEVANOVIC AND OTHERS v. SERBIA

CASE OF STEVANOVIC AND OTHERS v. SERBIA

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