Lexploria

THIRD SECTION

CASE OF TOMO VIĆ AND OTHERS v. SERBIA

( Applications nos. 5327/11, 5352/11, 5364/11, 5370/11, 5381/11, 5389/11, 5390/11, 13351/11, 13353/11, 17353/11, 17376/11, 17396/11, 17399/11, 17404/11, 17418/11, 17420/11, 17422/11, 17427/11 and 17434/11 )

JUDGMENT

STRASBOURG

24 February 2015

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

In the case of Tom ović and Others v. Serbia ,

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

Ján Šikuta , President, Dragoljub Popović , Iulia Antoanella Motoc , judges,

and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated in private on 3 February 2015 ,

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

PROCEDURE

1 . The case originated in nineteen separate applications (nos. 5327/11, 5352/11, 5364/11, 5370/11, 5381/11, 5389/11, 5390/11, 13351/11, 13353/11, 17353/11, 17376/11, 17396/11, 17399/11, 17404/11, 17418/11, 17420/11, 17422/11, 17427/11 and 17434/11 ) 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 are all Serbian nationals, and their further personal details are set out in the Annex to this judgment.

2 . The applicants were all represented by Ms R. Garibović , a lawyer practising in Novi Pazar . The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodi ć .

3 . On 28 November 2013 the applications were communicated to the Government .

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Civil proceedings brought by the applicants

5 . All the applicants were employed by Raketa-Putnički Saobraćaj AD , a company based in U žice (hereinafter “the debtor”).

6 . Since the debtor had failed to fulfil its obligations toward its employees, the applicants brought numerous separate civil claims, seeking payment of salary arrears and various social security contributions.

7 . T he applicants obtained final court decision s ordering the debtor to pay them certain sums. The essential information as to the domestic proceedings in respect of each application is indicated in the annexed table.

B. I nsolvency proceedings

8 . On 12 July 2010 the Commercial Court ( Privredni sud ) in Užice opened insolvency proceedings in respect of the debtor . As a result, all of the ongoing enforcement proceedings against the debtor were terminated .

9 . The applicants duly reporte d their respective claims based on the above -mentioned court decisions to the insolvency administration .

10 . On 8 June 2011 the court accepted the applicants ’ claims.

11 . On 29 July 2014 the applicants ’ representative informed the Court that some of the decisions at issue had been partially enforced in the insolvency proceedings .

12 . The insolvency proceedings in respect of the debtor are still ongoing.

C . The debtor ’ s status

13 . The d ebtor , which operated as a socially-owned company, was privatised on 27 December 2002 .

14 . On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations.

15 . Following the annulment of the debtor ’ s privatisation the State owned 58.18% of shares in the company .

16 . On 11 December 2008 the State sold its shares to a private company.

II. RELEVANT DOMESTIC LAW AND PRACTICE

17 . The relevant domestic law concerning the sta tus of socially-owned companies, enforcement and insolvency proceedings are outlined in the case s of R. Kačapor and Others v. Serbia , nos. 2269/06 et al ., §§ 57-64 and §§ 71-76 , 15 January 2008 and Jovičić and Others v. Serbia ( dec. ), no. 37270/11, §§ 88-93, 15 October 2013 . Further more , the case-law of the Constitutional Court in respect of socially-owned companies, together with the relevant provisions concerning constitutional appeals and the privatisation of socially-owned companies, are outlined in the admissibility decision in Marinković v. Serbia ( dec. ), no. 5353/11 , §§ 26 -29 and §§ 31- 44 , 29 January 2013 ; and the judgment in Marinković v. Serbia , no. 5353/11 , §§ 29-32, 22 October 2013 .

THE LAW

I . JOINDER OF THE APPLICATIONS

18 . The Cour t considers that, in accordance with Rule 42 § 1 of the Rules of the Court, the applications should be joined, given their common factual and legal background.

II . ALLEGED VIOLATION OF ARTICLE S 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL N o . 1 TO THE CONVENTION

19 . The applicant s complained of the respondent State ’ s failure to enforce final court decisions rendered in their favour against the debtor and of the lack of an effective remedy in that connection . The relevant provisions of Articles 6 § 1 and 13 of the Convention, as well as Article 1 of Protocol No. 1 read as follows :

Article 6 § 1

“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

“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.”

Article 13

“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.”

A. Admissibility

20 . The Government argued that the applications were incompatible ratione personae with the provisions of the Convention and/or that they were inadmissible on non-exhaustion grounds.

21 . The Court recalls that it has already considered similar arguments and rejected them (see, for example, the judgments in R. Kačapor and Others , § 114 and Marinković , § 3 9 , both cited above ; and the decisions in Marinković , § 5 9 and Jovičić , § 102 , both cited above ). It sees no reason to depart from this approach in the present cases. Therefore, the Court decides to reject the Government ’ s admissibility objections .

22 . As the application s are neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds, they must be declared admissible.

B. Merits

23 . The Court notes that the final court decision s rendered in the applicant s ’ favour remain unenforced to the present date .

24 . The Court observes that it has frequently found violations of Arti cle 6 of the Convention and/or Article 1 of Protocol No. 1 to the Convention in cases raising issues similar to those raised in the present case (see R. Kačapor and Others , cited above, §§ 115-116 and § 120; Marčić and Others v. Serbia, no. 17556/05, § 60, 30 October 2007 ; Crnišanin and Others v. Serbia, nos. 35835/05, 43548/05, 43569/05 and 36986/06, §§ 123-124 and §§ 133-134, 13 January 2009 ; Rašković and Milunović v. Serbia, nos. 1789/07 and 28058/07, § 74 and § 79, 31 May 2011 ; and Adamović v. Serbia , no. 41703/06, § 4 1, 2 October 2012 ).

25 . Having examined all the material submitted to it, 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 case. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

26 . Having reached this conclusion, the Court does not find it necessary to examine essentially the same complaint under Article 13 of the Convention (see mutatis mutandis , Kin- Stib and Majkić v. Serbia , no. 12312/05, § 90, 20 April 2010 ).

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

27 . 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 , c osts and expenses

28 . The applicant s requested that the State be ordered to pay, from its own funds, the sums awarded by the final court decisions rendered in their favour , as well as the costs of the enforcement proceedings , plus 5,000 euros (EUR) in respect of non-pecuniary damage to each of them . The applicant s also claimed EUR 450 each for the legal costs incurred before the Court.

29 . The Government considered the claims excessive and unjustified.

30 . H aving regard to the violations found in the present case and its own case-law ( R. Kačapor and Others, §§ 123-26, and Crnišanin and Others , § 139 , both cited above ), the Court finds that t he Government should pay the applicant s the sums awarded in the court decision s specified in the Annex , less any amounts which may have already been paid in this regard .

31 . As regards non-pecuniary damage, the Court considers that the applicant s sustained some non-pecuniary loss arising from the breaches of the Convention found in this case. The particular amount claimed, however, is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court considers it reasonable to award EUR 2,000 to each applicant t o cover any non-pecuniary damage, as well as costs and expenses ( see Stošić v. Serbia , no. 64931/10, §§ 66 and 67, 1 October 2013 ).

B . Default interest

32 . 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 b e added three percentage points .

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3 . Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention ;

4 . Holds that there is no need to examine the complaint under Article 1 3 of the Convention ;

5 . Holds

(a) that the respondent State is to pay the applicant s , within three months, the sums awarded in the final domestic judgment s rendered in their favour specified in the Annex , as well as the established costs of the enforcement proceedings, less any amounts which may have already been paid on this basis ;

(b) that the respondent State is to pay each applicant, within the same period, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, costs and expenses, plus any tax that may be chargeable on this amount, 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;

6 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 24 February 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Ján Šikuta Deputy Registrar President

ANNEX

No.

Application

no. and date of introduction

Applicant name

date of birth

D omestic decision details

Date when the decision became final

Details of the enforcement order / c laim in the insolvency proceedings

5327/11

30/12/2010

Siniša TOMOVIĆ

04/02/1952

Užice

22/10/2007

25/12/2007

Užice

20/07/2010

5352/11

30/12/2010

Radoje JOVANOVIĆ

17/11/1955

Užice

06/08/2007

09/09/2007

Požega

20/03/2009

5364/11

30/12/2010

Stevan BRKOVIĆ

13/11/1949

Užice

02/03/2007

13/09/2007

22/03/2007

09/10/2007

Požega

04/02/2008

20/03/2009

5370/11

30/12/2010

Goran MARINKOVIĆ

26/11/1960

Užice

13/09/2007

09/10/2007

Požega

24/03/2009

5381/11

31/12/2010

Milun ĆITIĆ

18/11/1959

Užice

16/10/2007

31/01/2008

29/11/2007

15/02/2008

Požega

29/09/2009

03/03/2009

5389/11

30/12/2010

Milenko PAŠIĆ

21/10/1979

Užice

17/09/2007

09/10/2007

Požega

20/03/2009

5390/11

30/12/2010

Miloje MLAĐENOVIĆ

04/10/1973

Užice

13/09/2007

10/10/2007

Požega

15/04/2008

13351/11

30/12/2010

Milan JOVIČIĆ

30/12/1957

Užice

16/10/2007

29/11/2007

Požega

24/09/2009

13353/11

30/12/2010

Velisav KOSTIĆ

11/02/1953

Užice

24/10/2007

29/11/2007

Požega

30/09/2009

17353/11

29/12/2010

Zlatko PETROVIĆ

06/01/1971

Užice

10/10/2007

29/11/2007

Kosjerić

30/04/2009

17376/11

29/12/2010

Zoran BATAKOVIĆ

27/03/1965

Užice

06/08/2007

19/09/2007

Požega

20/03/2009

17396/11

29/12/2010

Zoran OSTOJIĆ

12/05/1961

Užice

03/08/2007

16/09/2007

Požega

06/07/2009

17399/11

29/12/2010

Milun OSTOJIĆ

06/08/1963

Užice

29/06/2007

10/10/2007

Požega

07/07/2009

17404/11

29/12/2010

Dragan MARINKOVIĆ

26/11/1960

Užice

06/08/2007

11/09/2007

Požega

15/04/2009

17418/11

29/12/2010

Veroljub VASILJEVIC

30/03/1959

Užice

27/07/2007

02/08/2007

Užice

02/08/2010

17420/11

29/12/2010

Radosav PANIĆ

21/07/1959

Užice

31/07/2007

28/08/2007

Požega

11/05/2009

17422/11

29/12/2010

Mitar LAZOVIĆ

08/11/1959

Užice

16/04/2008

25/05/2008

Požega

13/03/2009

17427/11

29/12/2010

Dragan TOMIĆ

05/09/1955

Užice

10/04/2008

09/05/2008

Požega

09/03/2009

17434/11

29/12/2010

Milan KOSTIĆ

17/02/1953

Užice

03/09/2007

10/10/2007

Požega

19/09/2008

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CASE OF TOMOVIĆ AND OTHERS v. SERBIA

CASE OF TOMOVIĆ AND OTHERS v. SERBIA

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