SECOND SECTION
Application no. 50586/07
Dobrila BOGIĆEVIĆ-RISTIĆ
against Serbia
lodged on 9 November 2007
STATEMENT OF FACTS
The applicant, Ms Dobrila Bogićević-Ristić, is a Serbian national, who was born in 1932 and lives in Belgrade. She is represented before the Court by Mr Z. Lazarević, a lawyer practising in Belgrade.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The enforcement proceedings
The applicant is one of the joint tenants (sukorisnik) of a construction property in Belgrade where a certain S.S. constructed a building without a permit. On 5 March 1993 the Municipal Department for Urbanism, Communal, Construction and Housing Affairs (Opštinsko odeljenje za urbanizam, komunalno-građevinske i stambene poslove - “the Municipality”) ordered S.S. to demolish the building, failing which the building would be demolished by the Municipality.
On 15 September 1993 the District Court in Belgrade accepted the applicant’s request and ordered the Municipality to enforce its own decision of 5 March 1993 within 30 days, failing which the enforcement would be carried out by the Fourth Municipal Court in Belgrade (‘Municipal Court’).
On 15 April 1994 the applicant filed a request for enforcement of the District Court decision with the Municipal Court. On 2 November 1994 the Municipal Court issued the writ of execution. Following one remittal, on 12 July 1996 the Municipal Court ordered the Municipality to advance the costs of the enforcement, and at the same time ordered the applicant to effectively enforce the decision, by engaging competent third persons to demolish the impugned building within 30 days from the payment of the advance. This decision became final on 18 December 1996.
On 11 February 1997 and 13 February 1997 the Municipality consigned the advance costs of the enforcement in court. On 23 April 1997 the Municipal Court informed the applicant. It would further appear that on 2 July 1997 the applicant requested the payment of additional costs of the enforcement. By 28 December 1997 the Municipal Court rejected the applicant’s request.
On 25 June 2003 the applicant requested continuation of the enforcement proceedings.
On 14 June 2006 the applicant requested the Municipal Court to change the means of enforcement and order the Municipality to demolish the building in question, under threat of a fine. On 6 February 2008 the Municipal Court rejected the applicant’s request. On 25 May 2010 the First Instance Court in Belgrade accepted the applicant’s appeal, quashed the decision of 6 February 2008 and remitted the case for reconsideration.
On 16 June 2010 the First Instance Court in Belgrade (formerly the Fourth Municipal Court in Belgrade) accepted the applicant’s request for the change of the means of enforcement and ordered the Municipality to demolish, at its own expense, the building in question within 8 days, under the threat of a fine. On 6 July 2010 the Municipality appealed against the enforcement order of 16 June 2010.
It would appear that the First Instance Court in Belgrade has not yet decided on the appeal.
B. The proceedings before the Constitutional Court
On 18 March 2009 the applicant filed a constitutional appeal, complaining in substance about the length of the enforcement proceedings. On 17 March 2010 the Constitutional Court rejected the applicant’s appeal, finding that the courts had acted “mostly” effectively and within a reasonable time.
C. Relevant domestic law
The Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in the OG SRY 33/97 and 31/2001 and in the OG RS 30/2010) provides that the enforcement of non-monetary obligations is carried out ex officio by the administrative authority that issued the decision (Articles 266 and 268).
The Enforcement Proceedings Act (Zakon o izvršnom postupku; published in OG RS 23/00, 73/00 and 71/01) provides that if no other person but the debtor can fulfill the obligation indicated in the enforcement title, the court will give the debtor a reasonable deadline to fulfill the obligation, under a threat of fine (Article 204), and if such obligation can be fulfilled by others, the court will authorize the creditor to entrust third persons, at the debtor’s expense, to fulfill the obligation to act (Article 203).
The Local Self-government Act (Zakon o lokalnoj samoupravi; published in OG RS 129/07) provides that through local self-government the citizens administer public administration of the immediate, mutual and general interest for the local population, directly, or through elected representatives (Article 2). Local self-government is administered in a municipality or a city (Article 3 § 1), and the Republic of Serbia may entrust them with certain issues from its competence (Article 4 § 1). The Local Self-government Act further defines the competences of the municipality, which include, inter alia, determining and ensuring the designation and use of the construction property (Article 20 § 1(8)).
The Zoning Act (Zakon o planiranju i izgradnji; published in the OG RS 72/09, 81/09, 64/10) defines the construction property (Article 82), and its designation and use, including the demolition (Article 90). Article 91 provides that the municipality may establish a public company or ensure the designation and use of the building property in another way, in line with the law and statute.
COMPLAINTS
Under Articles 6 and 13 of the Convention, the applicant, in substance, complains about non-enforcement of the final court decision rendered in her favour and the absence of an effective domestic remedy for the procedural delay in the enforcement proceedings.
QUESTIONS TO THE PARTIES
1. Can the advance of the costs of the enforcement by the Municipality, as ordered by the writ of execution of 12 July 1997, be considered the final enforcement of the District Court decision of 15 September 1993, in particular bearing in mind that the enforcement proceedings were not terminated upon the payment?
2. If the answer to the first question is affirmative, is Article 6 § 1 of the Convention applicable to the enforcement proceedings subsequent to 13 February 1997? If so, has there been a breach of the “reasonable time” requirement contained in Article 6 § 1 of the Convention?
3. If the answer to the first question is negative, has there been a violation of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1 to thereto? In particular, does the impugned non-enforcement amount to a violation of the applicant’s right of access to court (see Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 511, § 41; Burdov v. Russia, no. 59498/00, ECHR 2002-III; Ilić v. Serbia, no. 30132/04, 9 October 2007), and is the State itself responsible for enforcing the court decision issued against the unit of local self-government (see, e.g., Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004 and Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, 21 June 2007)?
4. Did the applicant have at her disposal an effective domestic remedy for the complaint concerning the procedural delay, as required by Article 13 of the Convention?
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