THIRD SECTION
DECISION
Application no. 49961/12
Milica ATANASIJEVIĆ against Serbia
and 4 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 16 December 2014 as a Committee composed of:
Ján Šikuta, President,
Dragoljub Popović,
Iulia Antoanella Motoc, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above applications lodged between 4 May 2012 and 8 April 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are all Serbian nationals, and their further personal details are set out in the appendix. They were all represented by Mr Z. Đorđević, a lawyer practising in Niš.
The Serbian Government (“the Government”) were represented by their Agent, Ms V. Rodić.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case as presented by the applicants
On 22 June 2001 and 15 April 2002 the Municipal Court (Opštinski sud) in Niš awarded the applicants certain amounts on account of salary arrears and employment related benefits against Kompanija Robne kuće Beograd A.D. (“the debtor”), a socially-owned company at the relevant time. These judgments became final on 28 September 2001 and 8 July 2002, respectively.
On 15 May 2002 insolvency proceedings were instituted against the debtor and shortly thereafter the applicants duly reported their claims to the insolvency administration.
On 30 October 2003 the Commercial Court (Trgovinski sud) in Belgrade recognised the applicant’s claims in the amounts of: 47,246.54 Serbian dinars (“RSD”) with respect to the first applicant; RSD 72,977.99 with respect to the second applicant; RSD 91,109.02 with respect to the third applicant; RSD 56,793.60 with respect to the fourth applicant; and RSD 52,587.27 with respect to the fifth applicant. The applicants did not appeal this decision.
During the course of the insolvency proceedings each of the applicants received RSD 154,753.24 on an unspecified ground.
On 15 December 2009 the Commercial Court terminated the insolvency proceedings.
The judgments rendered in the applicants’ favour remained unenforced to the present date.
B. The circumstances of the case as presented by the Government
The Government informed the Court that following the institution of the insolvency proceedings against the debtor the applicants had continued to work there and that on 19 and 20 August 2003, 17 December 2004, 13 April, 27 May and 18 July 2005 each of them had received certain amounts corresponding to their minimum wages due plus the judgment debt in the total amount of RSD 154,753.24 each.
COMPLAINTS
The applicants essentially complained about the non-enforcement of the judgments rendered in their favour. These complaints fall to be examined under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.
THE LAW
The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.
The Government asked the Court to declare the applications inadmissible as an abuse of the right of petition. They pointed out that the applicants’ counsel, who had represented them throughout the domestic proceedings, had failed to inform the Court that the judgments in question had in fact been enforced long time ago.
While acknowledging that they had received RSD 154,753.24 each, the applicants denied that the impugned judgments had been enforced, without going into any details.
The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; Poznanski and Others v. Germany (dec.), no 25101/05, 3 July 2007; and Simitzi-Papachristou and Others v. Greece (dec.), no. 50634/11, § 36, 5 November 2013) or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili, cited above) or where new significant developments occurred during the procedure (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008; and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others, cited above; Predescu, cited above, §§ 25-26; and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
The Court notes that, in the present case, the applicants in their applications to the Court complained that the Municipal Court judgments of 22 June 2001 and 15 April 2002 had not been enforced. The Court observes that by 18 July 2005 the applicants had each received RSD 154,753.24, which, according to the documents submitted by the Government included the payment of minimum wages and the judgment debt. Since the applicants failed to demonstrate that the amounts received had not included the judgment debt or that the domestic authorities in any way wrongly calculated the debt due, the Court concludes that the judgments in issue were fully enforced by 18 July 2005.
However, the applicants’ failure to provide full information in respect to the payments received during the insolvency proceedings and their statements that the judgments had not been enforced cannot be interpreted, in the Court’s view, as anything else but a failure to disclose information concerning the very core of the application.
Having regard to the importance of the applicants’ failure to disclose this information for the proper determination of the present case, the Court finds that such conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
In view of the above, it is appropriate to reject the applications as an abuse of the right of petition, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Marialena TsirliJán Šikuta
Deputy RegistrarPresident
APPENDIX
List of Applications
1. 49961/12 Atanasijević
2. 50238/12 Radev
3. 50243/12 Preradović
4. 59641/12 Mladenović
5. 27200/13 Jovanović
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