Published on 7 November 2022

FOURTH SECTION

Application no. 12543/18 Branko GALIĆ against Serbia lodged on 6 March 2018 communicated on 23 October 2022

SUBJECT MATTER OF THE CASE

The applicant was the sole owner of company X, which underwent insolvency proceedings following which it was removed from the Register of Business Enterprises. The remaining property of the company was transferred to the Republic of Serbia. Consequently, the applicant was prevented from completing debt-related civil proceedings which he initiated against his debtors. The relevant provisions of the Insolvency Act have subsequently been declared unconstitutional by the Constitutional Court in 2012. The Constitutional Court rejected the applicant’s constitutional appeal.

QUESTIONS TO THE PARTIES

1. Are the applicant’s complaints compatible with the provisions of the Convention, ratione personae , given that he was the founder and the director of company X and the owner of 100 % of its shares (see Agrotexim and Others v. Greece , 24 October 1995, § 66, Series A no. 330 A; see, also, mutatis mutandis , Pine Valley Developments Ltd and Others v. Ireland , 29 November 1991, § 42, Series A no. 222; Eugenia Michaelidou Developments Ltd and Michael Tymvios v. Turkey , no. 16163/90, § 21, 31 July 2003; and Kin-Stib and Majkić v. Serbia , no. 12312/05, § 74, 20 April 2010)?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular:

(a) was there an effective remedy in respect of the applicant’s complaint under Article 6 of the Convention that the domestic civil proceedings had not been fair since the final judgment rendered against the applicant had been based on the Insolvency Act which provisions had subsequently been declared unconstitutional (see, mutatis mutandis , De Moor v. Belgium , 23 June 1994, § 55, Series A no. 292 A)?

(b) was the request to amend, in accordance with sections 60 and 61 of the Constitutional Court Act 2007, a final or individual act adopted on the basis of a law or other general act which was declared unconstitutional, an effective remedy in respect of the applicant’s complaints (see, mutatis mutandis, Barać and Others v. Montenegro , no. 47974/06, § 32, 13 December 2011)?

3. If so, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

4. Has there been an interference with the applicant’s peaceful enjoyment of possessions as a result of the transfer of his company’s remaining property to the State, within the meaning of Article 1 of Protocol No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant?