Published on 26 June 2023

FOURTH SECTION

Application no. 34146/20 Almir BILALOVIĆ against Serbia lodged on 23 July 2020 communicated on 5 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the alleged infringement of the principle of legal certainty resulting from the quashing of the enforcement order and de facto annulment of the final judgment in the applicant’s favour.

On 21 March 2017 the Basic Court in Novi Pazar allowed the applicant’s claim against his employer for payment of certain benefits based on the Government’s Decision on Civil Servant’s Remuneration (“the Government’s Decision). Having become final on 9 August 2017, the judgment was fully enforced on 29 September 2017 based on the enforcement order from 18 September 2017.

In the meantime, following a request for the review of the constitutionality, on 22 June 2017 the Constitutional Court had declared the Government’s Decision unconstitutional. That decision was published on 15 August 2017 and came into force on 19 August 2017.

Subsequently, on 27 February 2018 the Higher Court in Novi Pazar quashed the enforcement order (which was based on the judgement of 21 March 2017) in the applicant’s case relying on Section 60 of the Constitutional Court Act which provided that the enforcement of judgments based on regulations which had been declared unconstitutional was no longer possible.

As the enforcement had already been carried out, new enforcement proceedings (counter enforcement) were instituted against the applicant for the return of the amount he had received in the enforcement of the judgment of 21 March 2017. On 24 May 2018 the new enforcement order was rendered. The applicant’s appeal against that decision was dismissed on 11 October 2018 by the Higher Court in Novi Pazar.

On 4 June 2020 the Constitutional Court rejected the applicant’s constitutional appeal as unfounded as he had failed to challenge the Higher Court’s decision of 27 February 2018.

The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the impossibility of enforcement of the final civil court judgment rendered in his favour breached the principle of legal certainty and his right to peaceful enjoyment of possessions.

QUESTIONS TO THE PARTIES

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

2. Has there been a violation of the applicant’s right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, as a consequence of the Higher Court in Novi Pazar’s decision of 27 February 2018 and subsequent enforcement proceedings which were initiated against the applicant for the return of the amount he had received in the enforcement of the judgement of 21 March 2017 (see Lenskaya v. Russia , no. 28730/03, § 45, 29 January 2009, and, mutatis mutandis , Moskal v. Poland , no. 10373/05, § 73, 15 September 2009?

3. Was there a breach of the applicant’s “right to a court” guaranteed by Article 6 § 1 of the Convention as a result of the quashing of the enforcement order based on the final judgment of 21 March 2017 given in the applicant’s favour and the subsequent decision ordering him to repay the amount received in the execution of that judgment. (see, mutatis mutandis Moskal , cited above, § 82)?